Last December, when it looked as if Harry Reid was all set to ram telecom amnesty down our throats, I sat down with the Senate Rules and put together a flowchart outlining just how long Senator Dodd could drag the process out if he was true to his word and tried to stop this outrage from becoming law.
Since my flowchart was apparently a hit (thanks in no small part to shoutouts, for which I'm grateful, from the likes of Kagro X (here and here), drational here, and a mention in kimoconnor's FISA Debate liveblog mothership and the follow-on liveblog diaries), I anticipated updating it for the new timeline on the assumption that our victory was only a temporary one, and Reid would be taking it up again shortly after the Senate's return.
(follow me down for much, much more procedural fun!!!)
And while it looked for a brief moment two weeks ago that somehow the constitution and its allies had finally prevailed, and I shelved my plan to update my flowchart for the new timeline as I shared in the excitement of Chris Bowers and others, that turned out to have been premature (in retrospect, who could have imagined that the Wall Street Journal editorial page got their facts wrong, right?) and now, as Kos himself hinted on Wednesday, as Glenn Greenwald discussed last week, and as Senator Feingold confirmed in his recent diary, we are in fact now right back where we were back in mid-December.
So, it looks like I'll be updating that flowchart after all, and in the near future.
But before I do that, I wanted to spend a diary highlighting what appears to be a fatal procedural flaw in the "Committee Report" which represents the Intelligence Committee's version (i.e., the bad bill providing Telco amnesty). Why does it matter? Because it creates one more way for Dodd, Feingold, and (whoever else steps up to protect the constitution) to stop this thing dead in its tracks on the Senate floor.
I. Introduction: The Senate Rules Usually Don't Matter, Except When They Do
In the course of trying to understand what the universe of possible procedural scenarios if Reid continues to insist on trying to push this garbage through the Senate, I did two things that I suspect many Senators never do: (1) I read the Senate Rules, and (2) I read the Senate Intelligence Committee Report for (its version of) the Bill.
I'll begin with the obligatory reminder that the Senate very routinely sets aside strict adherence to the formal Senate Rules, by "unanimous consent," in the interest of, well, actually getting anything at all done. As long as nobody objects, the Senate (usually after discussion between the Majority and Minority Leaders) can take up and vote on whatever it feels like doing in whatever order it feels like regardless of whether it's been reviewed by a committee or not. As Kagro X wrote way back in 2005 in one of his early discussions of Bill Frist's "nuclear option" to end the filibuster of judicial nominees:
If we accept the premise that the nuclear option is so named because its use will obliterate collegial relations in the Senate, then that begs the question: What keeps the Senate working now?
Granted, relations are frosty, but there's nothing like the virtual shutdown that Harry Reid has threatened would be the result of dropping the big one.
In a chamber that runs almost entirely on unanimous consent -- a procedural posture which has given rise (at least in the past) to practices like "blue slip" holds on nominations, anonymous holds on legislation, the filibuster, etc. -- every Senator is a potential nuclear threat. And it's the old doctrine of Mutually Assured Destruction that keeps things in line. One Senator's abuse of the delicate balance of power can bring retribution from any one or any combination of ninety-nine others. And in turn, that threat keeps most Senators from too quickly judging any single instance of the use of these anti-majoritarian parlor tricks to be abusive enough to warrant a response. There's a built-in tolerance for these things.
Gun nuts, or the people we used to call "gun nuts" before we got all big-tent-sensitive, are fond of postulating that a well-armed citizenry is a polite and respectful citizenry. In a landscape in which anyone could be packing heat, people tend to tread lightly. Or at least, that's the theory. The same, it might be said (if there was any interest in consistency beyond whatever one niggling point these folks hoped to make with this platitude), is true in the Senate.
So every individual Senator (including, just to take a couple of random examples, Senators Dodd, or Senator Feingold) has extraordinary power, simply by objecting to a unanimous consent request, to force the Senate to actually comply strictly with the Senate Rules in order to get anything done.
And, damn it if those Senate Rules sure aren't pesky and particular. And particularly relevant here, there appears to be a very compelling case to be made that the Intelligence Committee Report is procedurally defective and subject to a point of order.
II. The Defect: Regulatory Impact Statement of the PAA Committee Report
In very quick summary, Senate Rule XXVI(11)(b) provides as follows:
(b) [A Committee Report] shall also contain
(1) an evaluation, made by such committee, of the regulatory impact which would be incurred in carrying out the bill or joint resolution. The evaluation shall include (A) an estimate of the numbers of individuals and businesses who would be regulated and a determination of the groups and classes of such individuals and businesses, (B) a determination of the economic impact of such regulation on the individuals, consumers, and businesses affected, (C) a determination of the impact on the personal privacy of the individuals affected, and (D) a determination of the amount of additional paperwork that will result from the regulations to be promulgated pursuant to the bill or joint resolution, which determination may include, but need not be limited to, estimates of the amount of time and financial costs required of affected parties, showing whether the effects of the bill or joint resolution could be substantial, as well as reasonable estimates of the recordkeeping requirements that may be associated with the bill or joint resolution; or
(2) in lieu of such evaluation, a statement of the reasons why compliance by the committee with the requirements of clause (1) is impracticable.
Gee, that actually seems like a pretty good rule, doesn't it? When a Committee reports out a bill to the Senate floor, it prepares a committee report, describing present law, how the proposed legislation would change present law, and the reasons the Committee recommends making such changes to the law. And what the above rule says is that, as part of that review, the Committee is supposed to evaluate the impact the proposed change would have on individuals and businesses, including "a determination of the impact on the personal privacy of the individuals affected."
And one would almost think that the FISA legislation is the poster child for such a rule, requiring the Committee with jurisdiction to evaluate and report to the full Senate its analysis of how the legislation would impact personal privacy. One might almost think that such an evaluation would be perhaps the single most important thing the Intelligence Committee should have been doing in the course of its markup of the Bill. So, what does the Regulatory Impact Statement of the Committee Report (Senate Report 110-209) say on this matter?
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b)(2) of rule XXVI of the Standing Rules of the Senate, the Committee deems it impractical to evaluate in this report the regulatory impact of provisions of this bill due to the classified nature of the operations conducted pursuant to this legislation.
Now, as disgusting as it is that the Intelligence Committee, following the lead of the Bush Administration in declaring virtually everything potentially embarassing to the President to be subject to the "state secrets privilege," has taken the same approach with regard to the FISA legislation -- at first glance one might be tempted to conclude that, well, as cowardly as this is and as flimsy as the "classified nature of the operations" dodge is, at least it literally complies with the XXVI(11)(b) requirement that the Report, "in lieu of such evaluation," provided "a statement of the reasons why compliance by the committee with the requirements of clause (1) is impracticable."
BUT WAIT -- back up: the XXVI(11)(c) exception talks about reasons why compliance is "IMPRACTICABLE" -- whereas the Committee Report says its "IMPRACTICAL". Now before you dismiss me as a cranky overly-detail-obsessed laywer who's clearly missing the point, that clearly they meant "impracticable" and just made a typo, and a point of order objecting to considerating of the Report (and thus the Bill) would be immediately overruled as frivolous and dilatory -- Well, a mere typo it may have been -- BUT there is a very big difference between saying something is "impracticable" -- which is variously defined as "not practicable; incapable of being put into practice with the available means" and "Impossible to do or carry out" on the one hand, and saying that same thing is "impractical" -- i.e., "Unwise to implement or maintain in practice." See, e.g., at dictionary.com, the following usage note:
The adjective impracticable applies to a course of action that is impossible to carry out or put into practice; impractical, though it can be used in this way, also can be weaker in sense, suggesting that the course of action would yield an insufficient return or would have little practical value. A plan for a new stadium may be rejected as impracticable if the site is too marshy to permit safe construction, but if the objection is that the site is too remote for patrons to attend games easily, the plan is better described as impractical.
So I would submit that the difference between "impractical" and "impracticable" in this context is far more than just a syllable -- it goes to the very heart of what's at stake here: can the Senate pass a law trampling on Americans' privacy rights and avoid evaluating the impact of the legislation on those rights because it doesn't want to be bothered with those pesky details, or MUST it evaluate the impact unless undertaking such an evaluation is essentially "impossible"?
Now, I'm anything but an expert on Senate parliamentary procedure, but I would submit that in the judicial context, if a statute had a threshold that a trial judge must find something "impracticable" in order to take a particular course of action -- and he or she issued an order finding it "impractical" -- I would think it would be a pretty slam dunk case for the Appeals Court to remand to the trial judge on the grounds that s/he APPEARED to have applied the wrong standard and requiring him/her to analyze it under the correct standard.
III. The Remedy: A Point of Order objecting to the Committee Report
OK, so let's say we agree that the Committee Report technically violates Rule XXVI(11)(b)(2) by failing to provide "a statement of the reasons why compliance by the committee with the requirements of clause (1) [evaluating the impact on the personal privacy of Americans of the bill} is impracticable." So what? Can't Harry Reid just do whatever he wants even if he technically foot-faults on the rules?
Not so fast. The very next subparagraph, i.e., Rule XXVI(11)(c) says:
(c) It shall not be in order for the Senate to consider any such bill or joint resolution if the report of the committee on such bill or joint resolution does not comply with the provisions of subparagraphs (a) and (b) on the objection of any Senator.
In other words, all it takes is for one Senator (i.e., Chris Dodd or Russ Feingold) to stand up on the Senate floor and say "Mr. President, I object to the Intelligence Committee Report on the grounds that it does not comply with the provisions of subparagraphs (a) and (b) of Senate Rule XXVI(11)."
And watch the resulting sh*tstorm ensue.