UPDATED: According to RawStory, Bush will give a speech on on Wiretapping at 9:20 EDT. (It's now 9:35 and nothing yet; the AP just says "Thursday morning.") (Apparently it was just a short statement rather than a nationally televised speech, which is what I was sort of expecting.)
UPDATEDx2: After some offline exchanges with those knowing far more about House parliamentary procedure than I pretend to know, I feel a little better. More just after the jump.
UPDATE:
It seems that a motion to recommit with instructions proposing to strike and replace is not in order, under House precedents, if what is proposed to be stricken has just been approved as an amendment by the House.
So the theory is this: per the Special Rule, the House calls up H.R. 3773 as amended by the Senate (the bad bill); Conyers moves to amend by striking the senate language and dropping in the good brand-new language. If this passes, then the bill as thus amended should be immune from a motion to recommit we're worried about.
If the Conyers amendment fails, however, then keep in mind that H.R. 3773 as amended by the Senate, would, it seems, remain live and pending on the floor. At that point, presumably Pelosi would yank the bill before it goes to a vote on final passage, but if she were to fail to do so, and were the bill to pass, it would be straight to the President's desk for signature.
So we still need to keep be vigilant. Complicated enough for you?
As mcjoan has reported on the front page, the House plans to take up the new House FISA bill today. To that end, the House Rules Committee (chaired by Louise Slaughter) met in an Emergency Meeting Wednesday afternoon to approve the "special rule" needed to get this bill onto the floor.
While I share the view of Glenn Greenwald and others that the new language is surprisingly good, I'm very concerned about how the Dem Leadership is handling it procedurally. In short, I worry that Pelosi & company might be deliberately maneuvering to sell us out.
I. Remember Schoolhouse Rock?
I'm just a bill.
Yes, I'm only a bill.
And I'm sitting here on Capitol Hill.
Let's start with some basic principles.
(1) A bill becomes a law if and only if it is first passed in an identical form by both the House and the Senate, and then signed into law by the President (* or, of course, vetoed but the veto is overridden).
(2) In general, a bill can originate in either(*) the House or the Senate. Bills originating in the House get an "H.R." number, e.g., "H.R. 3773." Bills originating in the Senate get an "S." number, e.g., S. 2248.
*Tax Bills are constitutionally required (Article I, Section 7) to start out in the House. Now that's not as onerous as you'd think, because if the Senate wantes to pass tax legislation before the House has acted, the Senate can (and often does) simply call up a completely unrelated House Bill, move to strike all of the statutory language after the Bill Number and the "Enacting Clause" (i.e., the magic words "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled") and replace it with their tax language, so now it's a bill with an H.R. number and passes constitutional muster. Sort of silly, I know, but the House actually does guard its prerogative in this area jealously, and there are situations where it matters for procedural and strategy reasons that tax bills have to start in the House (even if only in this "technical" way).
(3) A key point: it is not enough for the House and the Senate both to pass different bills (one an "H.R." bill and one an "S." bill) even if they say the exact same thing. A single bill must be approved, in series, by the House and then the Senate, or by the Senate and then the House, and is only then sent to the President for signature.
Notwithstanding the fact that nowadays everything gets posted on THOMAS and everybody can log on and print out copies of a bill so we all know we're talking about the same thing, think of it the way a late-18th-century psot-colonial aristocrat would have, as if there's only one "official version" of a bill, handwritten with a quill pen on yellow parchment, and that one bill must be passed by one chamber and signed by the clerk, then run across the capitol building to the other chamber, passed by the other chamber and signed by the clerk, and only then handed off to someone to put on his boots and trudge up the grand muddy boulevard that is Pennsylvania Avenue (watching out to avoid getting run over by a careless house-and-buggy driver), who knocks on the white house door and hands it over to the President for his review and signature into law.
II. Where FISA Stands Today
Well, it's a long, long journey
To the capital city.
It's a long, long wait
While I'm sitting in committee
Back in November, the House passed its original version of the FISA Modification Extender -- an acceptable bill, without telco amnesty and with some decent protections. That was H.R. 3773.
Last December, the Senate had a choice: it could EITHER have taken H.R. 3773, which having been passed by the House had been walked down the hall and delivered to the Senate clerk was now in the Senate's hands, and referred that bill to the Intelligence and Judiciary Committees for them to review it and propose amendments to it, OR it could start with its own brand new bill. It chose the latter course: the Senate Intelligence Committee (started with a fresh sheet of paper, if you will) drafted a really bad bill (containing telecom amnesty), reported it out of committee, at which point it then went to the Senate Judiciary Committee. Judiciary proposed amendments (such as stripping out telco amnesty by dropping that whole section of the bill -- thank you, Senators Feingold and Dodd!!!) and reported it out, at which point it went to the Senate floor. That original bill was S. 2248.
In mid-February (after some earlier, ummm, missteps on Reid's part back in late December, forced a delay -- thank you, Senator Dodd!!!), S. 2248 was finally called up on the Senate floor for consideration. Long story short, after starting with the Intelligence Committee version, rejecting the Judiciary Committee version, and rejecting most proposed changes which could have made it less bad, the Senate was all set to pass S. 2248, and technically did pass it (68 to 29). But then they immediately set it aside...
Huh??? After all that hard work, they just threw S. 2248 in the trashcan???
...yes, so they set it aside, and immediately called up H.R. 3773 (the good House-passed bill, which has still been waiting patiently this whole time at the Senate clerk's desk)...
What's this??? H.R. 3773? That's the GOOD original House Bill! After all of this had they seen the error of the ways and were they now going to pass the good, no-telco-amnesty house version???
...and immediately moved to amend H.R. 3773 by striking all the language after the enacting clause, and replacing it with the (bad, telco-amnesty-granting) language from S. 2248. That amendment and the final passage of the bill were approved by unanimous consent.
Oh. Nevermind.
Follow that so far? Good. So to recap, there are now two versions of FISA-modification-legislation each passed by one chamber hanging around the Capitol: the original (good) House-passed version of H.R. 3773, and now the (bad) Senate-passed amended version of H.R. 3773.
III. So what -- why does this all matter?
But I know I'll be a law someday
At least I hope and pray that I will,
But today I am still just a bill.
Well, the House now faces a number of options in terms of how to proceed at this point.
(And I would hasten to add that one option it has -- to my own mind, the very best option it has -- is to DO NOTHING.)
(Another very good approach would be for the House to pass a resolution formally "insisting" on its original version of H.R. 3773.)
(Barring that, another tolerable option is to pass a resolution agreeing to a House-Senate Conference to try to hammer out a mutually acceptable solution through the formal conference committee process.)
(But since neither of those seem to be the path pelosi wants to head down, that still leaves two key approaches:)
(1) Create a completely new bill, with a new H.R. number, which will contain the same surprisingly good language, and call that up on the House floor for a vote.
(2) Take the Senate-amended (crappy) version of H.R. 3773, amend it by stripping out the senate's language (telco-amnesty and all) and replacing it with the new surprisingly good language we first got wind of yesterday, and call up that amendment-to-the-Senate-amendment-to-the-House-Bill on the House floor for a vote, OR
Note well that the text of the bill in either case will be exactly the same. The difference -- the crucial difference -- is a procedural one.
IV. Remember the motion to recommit?
I'm just a bill
Yes I'm only a bill,
And I got as far as Capitol Hill.
Here's the deal. As Kagro discussed just this past Sunday, the Rs have been making motions to recommit on every bill the Ds call up, purportedly trying to amend each bill by tacking on the Senate's FISA language.
It's sort of the parliamentary procedural equivalent of a temper tantrum, pointless because in each case these proposed motions to recommit have been ruled out of order because they're not "germane" to the subject matter of the bill (such as Americorps, or mental health, or whatever).
But wait a minute: if pelosi calls up the new FISA language for a vote, then suddenly the inevitable Boehner "motion to recommit forthwith with instructions" proposing to strike the new good language from the bill and plug back in the crappy senate language is NO LONGER just a childish procedural delay which gets bounced as non-germane -- no, INSTEAD it will get a substantive vote, and if the Rs succeed in peeling off enough Blue Dog defectors, then the text of the bill will be replaced with the senate language, and (if allowed to proceed to a vote on final passage at that point, would be passed by the house in that form).
Now it MAY be that I'm worrying unnecessarily -- perhaps pelosi has persuaded the blue dogs of the wisdom of moving the new FISA language to the senate and seeing what happens, and that when the vote on the inevitable republican MtR that I've described is held, Blue Dogs will not defect but will -- either out of loyalty to their country and their constitution, or barring that, out of loyalty to their party -- vote with the rest of the House Dems to defeat the republican motion.
Maybe.
V. Procedure Matters. A lot.
Well, now I'm stuck in committee
And I'll sit here and wait
While a few key Congressmen discuss and debate
But what happens under each of the two scenarios?
If they chose path 1 (new bill, with a new H.R. number), then the whole thing moves to the senate once again, and they need to pass (without amendment) the new bill. Now at this point we've definitely got our backs against the wall -- after all, they passed a bill with exactly this language once before, so probably they could get the votes to do it again. BUT at the very least, we could presumably count on Dodd and/or Feingold to reject to any attempt to fast-track it by unanimous consent and vote on it before the senate (and the house) recess for two weeks starting this weekend. And we could at least try our damnedest, over the next two weeks while our Senators are all back home in their home states, to convince them that this is insane, especially in light of recent headlines, and that regardless of how they voted the first time around, they should vote against it now.
And what if they chose path 2 (original H.R. number, amended by striking senate's language and adding in the new good language)? NOW if the motion to recommit succeeds, and it is allowed to go to a vote on final passage (which it presumably wins by exactly the same margin as the motion to recommit did), what have we got? Lo and behold, each of the House and the Senate have passed H.R. 3773 with exactly the same language. And so, in the words of Schoolhouse Rock:
Well, then I'm off to the White House
Where I'll wait in a line
With a lot of other bills
For the president to sign
And if he signs me, then I'll be a law.
So lets review: Pelosi, Hoyer and Slaughter were faced with a choice of procedural paths: under path 1, if they can't hold the line with the Blue Dogs, and they lose the motion to recommit and then lose the vote on final passage, well, that's very bad, but (absent Feingold and Dodd also selling us out) we've at least got two weeks for one last chance to convince 40 Democrats to kill the bill in the senate by "filibuster" (or what passes for filibuster these days). But under path 2, if the same thing happens, it's not just potentially-very-bad-but-with-two-weeks-for-one-last-fight , it's immediately awful: the Bill would be on its way to the Oval Office for signing into law by Friday.
Given these two choices, guess which path Pelosi, Hoyer and Slaughter chose?
That's right, path 2:
Providing for consideration of the Senate amendment to the bill (H.R. 3773) to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes
- Provides for consideration of the Senate amendment to H.R. 3773.
- Makes in order a motion by the chairman of the Committee on the Judiciary to concur in the Senate amendment with the amendment printed in the report of the Rules Committee accompanying the resolution.
- Waives all points of order against the motion except those arising under clause 10 of rule XXI.
- Provides that the Senate amendment and the motion shall be considered as read.
- Provides one hour of debate on the motion, with 40 minutes equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary and 20 minutes equally divided and controlled by the chairman and ranking minority member of the Permanent Select Committee on Intelligence.
- Provides that, notwithstanding the operation of the previous question, the Chair may postpone further consideration of the motion to a time designated by the Speaker.
VI. One Last Thing
How I hope and pray that he will,
But today I am still just a bill.
You see paragraph 6 of the Rules Committee's summary of the Rule above? That's very important.
What it means is that even if the worst happens, and the Blue Dogs defect and vote with the Republicans to substitute back in the current Senate language, even at that time, Pelosi has retained the power to pull the bill off the floor at that point and to thereby prevent the bill as amended proceed to a vote on final passage.
And that means two important things:
(1) If I trusted Pelosi on this, I'd say "okay, forget about my nervousness above -- she presumably knows what she's doing, and if somehow she has miscalculated and the Blue Dogs defect (giving the Rs a majority on the motion to recommit), she'll just yank the bill off the floor at that point and we're right back where we are right now, with no harm done."
(2) But the flip side of that (and, needless to say, I don't trust Pelosi one bit on this) is this: if the Blue Dogs defect and vote with the Rs to substitute back in the original Senate amendment language, then she still in fact has the ability to slam on the brakes and stop the train before it goes to a vote on final passage which would send the Bill right up Pennsylvania Avenue to the President for his signature. She may not think we know this, and in fact she may be counting on us not knowing it -- "hey, sorry, progressive democrats and other supporters of the constitution, we tried our very best but -- darn it all, we just got plain out-maneuvered by that wily John Boehner, and, shucks, well, as you can see we simply didn't have the votes. Just goes to show why you need to send money to the DCCC so we can elect more Democrats to the House" -- but I know it and now you do to.
So if it comes to pass tomorrow that the Republican motion to recommit succeeds, AND Pelosi ALLOWS the bill to proceed to a vote on final passage, then there is only one inescapable conclusion:
She let it happen on purpose.
And moreover rather than doing it in an above-board way (which would certainly lead to much-deserved demonization here on dKos and elsewhere, but would at least have demonstrated a minimum of integrity), she would have done so in the most devious, underhanded, and convoluted way imaginable for the sole purpose of attempting to deceive progressives as to her true intentions.
As I said, I hope that's not where this thing is headed -- and I'm (perhaps naively) optimistic that the odds of it playing out this way are less than 50-50. But we need to start thinking now about what our response would be. And Markos needs to start thinking about how to interpret and/or modify this site's mission statement about putting loyalty to the Democratic party above all, to address a situation of a major party leader openly and brazenly betraying, in the most underhanded way, our constitution and our collective principles.