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This started out as a comment to mcjoan's excellent front-page diary this afternoon, which got to be way to long.  Plus, in order to get it clear in my own head, I put together a visual flowchart, which I've included immediately below the fold.

In short, it appears that things are not as bleak as they might seem for the good guys at this point.  If Dodd is true to his word and is really committed to stopping telco-immunity, he still holds an very strong hand and even if the very worst case has the ability to drag this thing out all week long until right before everybody hightails it out of town until January.

For some additional background, see this CRS (Congressional Research Service, a nonpartisan Congressional office that analyzes legal issues for Congress) report on "Filibusters and Cloture in the Senate".

First off, for the visually-minded, I've put together the following handy flowchart.  This is my first time attempting to post an image in a diary; furthermore, I'm not exactly the most technologically-savvy of Kossacks, so my kludge-job manner of squeezing this into here (made the flowchart in powerpoint, adjusted the page format so it would all fit onto a single slide, saved as a jpeg file directly from powerpoint, and uploaded that jpeg to allyoucanupload, which I then hotlinked below).  If I've completely f'ed something up, I welcome any and all advice.

Free Image Hosting at

Now for the narrative version of the above flowchart:

(1) As best we understand, Reid intends to call up the Bill which came out of Intelligence and was referred to Judiciary.

(2) Because the Bill came out of SSIC and was then serially referred to SJC, under "regular order" the original SSIC mark would be the "base" bill, with the SJC version automatically pending as an amendment in the nature of a substitute.

(3) The cloture vote now scheduled for noon Monday is on a motion to proceed, which would permit the Senate to turn to consideration of the Bill.

   (3)(a) If the cloture vote fails, debate on the motion to proceed continues indefinitely and the Senate can not (technically) even begin consideration of the Bill and amendments thereto.

   (3)(b) If the cloture succeeds, then it is "in order" to begin debating the Bill and any orderly amendments thereto.  At that point, the filibuster of the motion to proceed will have been brought to an end, and under Senate Rule XXII, the clock starts to tick on 30 hours of debate before there can be a vote on the motion to proceed.

        (3)(b)(i) As is always the case in the senate, Senators could agree by Unanimous Consent ("UC") to shorten the 30 hour period of debate.  Unanimous Consent means exactly what the words suggest, that all 100 Senators have to agree in order to waive strict application of the rules.

        (3)(b)(ii) If Dodd is serious about attempting to stop this (rather than, say, merely grandstanding for us unwashed masses here in the dirty-smelly-hippie-land (and I have no reason to believe that he is anything other than genuinely committed on principle to protecting the Rule of Law)), he would object to any UC to shorten the 30-hour period for debate on the motion to proceed.  And after all, we now know how very, very, much  Senator Reid cares about maintaining "regular order" in the Senate rather than bowing to "political pressure" to act irregularly, so I'm sure he won't get the slightest bit upset at Senator Dodd for insisting on following the rules of the Senate to a tee.

   (3)(c) So this brings us to probably Wednesday (*)before a vote actually occurs on the motion to proceed (NOT a vote on the underlying bill itself or any of the amendments thereto -- oh, no, the fun is just beginning and that's still days away, assuming once again that Dodd is serious about stopping this thing (rather than merely grandstanding) and really intends to insist on his procedural rights).  (* in theory, if Harry decides he wants to play hardball, he could keep the Senate in session all night long Monday --> Tuesday so that the 30 hour clock expires at 6pm Tuesday afternoon).  Let's assume the motion to proceed passes on Wednesday.

(4) OK, it's now Wednesday, and having obtained an majority vote on the motion to proceed to consideration, debate on the Bill itself can begin.  Note that there's not yet any time limit on such debate.  The filibuster on the motion to proceed is dead; long live the filibuster of the underlying bill!

(5) We can expect Reid, if he hasn't given up yet, to file a motion for cloture on the underlying bill itself. Here's where it gets interesting...

Up until now, everything's been pretty cut-and-dried: we can pretty much anticipate what Dodd and Feingold and others who take the constitution seriously will do, and we can similarly pretty well predict the behavior of Reid, Rockefeller, DiFi and the rest of those supporting the President on this issue.

But now we're at an interesting decision-point.  WHAT does Reid move for cloture on?  The Base Bill, or the Judiciary's Amendment in the Nature of a Substitute?  It's also where I take a deep breath, and say (*gulp) that I think Glenn Greenwald, BooMan, drational, and others are wrong or at least unintentionally misleading when they suggest that Reid has been able to game the process so that telco-immunity can pass with only 41 votes.  To be clear: if Dodd walks the walk he's been talking, then immunity CAN'T be stripped from the Bill without at least garnering 51 votes in a vote on the narrow question of telco-immunity.

How's that again, you ask?  On Wednesday (assuming that the cloture vote on Monday received at least 60 votes, and that the Wednesday vote on the motion to proceed itself has received at least 51 votes), debate begins on the Bill itself, and Reid has two options:

(6A) He files a motion for cloture on the SSIC Base Bill (i.e., the Bad Bill, with telco-immunity), or

(6B) He files a motion for cloture on the SJC Amendment in the Nature of a Substitute (i.e., the Tolerable Bill, with no immunity for telcos).

Note that in either case, under Senate Rule XXII, the motion for cloture has to lie over for two days before it "ripens," so we're looking at Friday for a vote on cloture on whichever Reid has chosen.

Let's take these two scenarios one at a time:

(7A) If cloture was filed on the base bill, then the Republicans have a very interesting dilemma, and it's by no means clear that THEY would vote for cloture under such circumstances.  Why should this be so?  Because if cloture is successfully invoked on the Base Bill itself, then that guarantees a vote, after up to 30 hours of debate, on the Bill and all pending (and "germane," but there's no question here that SJC's amendment in the nature of a substitute will pass the germaneness threshold) amendments.  Having invoked cloture by 60 votes, from here on out we're back in the normal world of majority-rules on the underlying Bill and pending amendments.

   (7A)(a).  So let's assume first that cloture passes (60 votes to bring an end to debate on the whole kit-and-kiboodle).  There's potentially another 30 hours of debate (taking us most likely to Sunday, i.e., teh day before Christmas Eve when everybody's getting very antsy to go home for the rest of the year), although it's no longer so clear that Dodd needs to run out the clock, because the dynamic has possibly shifted quite dramatically by this point.  Because when time runs out, there's a "stacked" vote (there could be -- and likely would be -- more amendments, and perhaps amendments-to-amendments, but solely to simplify let's assume there are no other amendments that the SJC Substitute): FIRST the Senate votes on the SJC's Subsitute Amendment (i.e., stripping out the telco-immunity language), and THEN it votes on the Base Bill.  Both of these are normal votes, which pass with a majority and fail without one.

        (7A)(a)(i) If the SJC subsitute garners 51 votes (assuming all 100 Senators are there), then it replaces the Base Bill and it's as if the SSIC version with its telco immunity never existed at all; the subsequent vote on passage of the Bill is in fact a vote on whether to pass the Base Bill as so amended (i.e., the Tolerable SJC version).  Victory is Dodd's, our's, the Fourth Amendment's, as the Senate and House will now both have passed (still differing) versions of FISA legislation without telco-immunity, and it becomes exceedingly difficult for the telco-immunity language to creep back in in the resulting conference negotiations between the House and Senate.

        (7A)(a)(ii) If the SJC substitute loses by a simple majority, the Base Bill is not amended and the Senate then proceeds to vote on final passage of the (original SSIC version of the) Bill, telco-immunity language still intact -- passage of which is probably a foregone conclusion in such circumstances (hard to believe that if we can't even get 50+ Senators to vote in favor of Judiciary's bill that there would be any stronger opposition to the Bill as a whole, absent something else weird going on like the introduction of other "poison pill" language in other successful amendments).  And don't get me wrong, this is a dark outcome to be sure (although not the end of the road -- remember where we are at this point is we have two different versions of the legislation, one from the House (with no telco-immunity) and one from the Senate (with telco-immunity)) -- but to be clear it would happen only as a result of losing on a straight majority-rules "upperdown" vote on whether to replace the SSIC Bad Bill with the more tolerable, telco-immunity-free SJC Substitute.  The hurdle for the good guys is "greater than 50" not "at least 60".

   (7A)(b) Now, if instead cloture does not pass, then debate continues, i.e. the filibuster continues.  And interestingly it might be the case that cloture fails as a result of pro-Bush Senators: if it's clear that the good guys have 51 votes in favor of the SJC Substitute (i.e., to strip telco-immunity out), then the bad guys might prefer to keep the debate going and use the ensuing confusion to get their friends in the mainstream media to start ginning up a story about how progressive obstructionism is endangering our lives.  The reality in these circumstances would be, of course, that it would be the R's and their pro-Bush D friends who would be obstructing, but if you think that Tim Russert and Chris Matthews and Joe Klein (x) are either smart enough to figure out what's actually going on procedurally at this point, or (y) in the off-chance that they are, that they would actually have the journalistic integrity to point this out rather than simply parroting the right-wing's talking points -- well, then, I want some of what you're smoking.  But regardless, the shrieks of the Beltway punditocracy notwithstanding, under these circumstances the filibuster nevertheless continues.

OK, so having explored the first path, let's back up and take the second.

(7B) Cloture has been filed on the SJC Substitute Amendment on Wednesday.  Held over for a day, voted on on Friday.

   (7B)(a) If cloture is successful, that's not the end of the world -- it guarantees an "upperdown" vote on the SJC Substitute.  So again, after a maximum of 30 hours of debate, there's a vote on the SJC Substitute (stripping telco-immunity).

        (7B)(a)(i) If the vote on the SJC Substitute passes by a normal majority, then the good guys have won: the original (telco-immunity-granting) language of the SSIC BAse Bill no longer exists, and what's now pending is a vote on final passage of the (now tolerable SJC version of the) Bill.

        (7B)(a)(ii) If the "upperdown" vote on the Substitute Amendment loses -- well, then again (see 7A(a)(ii) above for the same analysis), if the good guys can't get to 51 votes, then we lose, but we lose cleanly because we in fact lack an actual numerical majority of United States Senators who support the consitution, NOT because of any BS gaming of the 60-vote "requirement."  And now ultimate defeat IN THE SENATE AT THIS POINT IN TIME (again, remember there's still a good House bill without telco-immunity) is a foregone conclusion:  if we can't even get 51 votes for removing telco-immunity, it's all-but-certain we won't be able to get 60 to defeat cloture if we push it that far.  But Dodd would nevertheless be within his procedural rights to continue debating (i.e., filibustering) final passage of the Bill... and recall it's now Saturday, and no cloture motion has even been filed on the Base Bill.  If Dodd wanted to push it that far, he could force Reid to file for cloture on Sunday, which has to lay over another two days, so vote on Monday, um, Christmas Eve?, which starts the 30-hour clock ticking, and we're looking at a vote on Wednesday, December, ummmm... 26th?  You get the point, that realistically Reid would have to concede (temporary) defeat for now and wait to hold the cloture vote and vote on final passage in January.

   (7B)(b) If cloture on the Substitute Amendment fails (because there's not 41 votes in favor), once again expect Rs and their friends in the media to scream and shout about liberal dem obstructionism, but it's actually a victory for Dodd.  In more normal circumstances, if an amendment to a bill was successfully filibustered, it might be in everyone's interest to drop consideration of the amendment and move on to a vote on the base bill without amendment.  But there's no earthly reason why Dodd would agree to do that in these circumstances, and he'd be within his procedural rights to insist that the Senate must act on the pending amendment (i.e., the SJC Substitute) by voting on it before moving on to a vote on the underlying bill.  In short, in these circumstances it's no longer Dodd who's filibustering the Bad SSIC bill -- it's the Rs and their anti-Rule-of-Law D friends who are blocking Senate action on the bill by preventing it from taking up the Substitute Amendment, which it procedurally must do before moving on to the SSIC Base Bill.

In short, things are not nearly so bleak as they might seem right now...

Originally posted to packerland progressive on Sun Dec 16, 2007 at 12:48 AM PST.

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