What happened to the House FISA bill?

The House was scheduled to take up the RESTORE Act today, in an effort to roll back the August FISA debacle. But as predicted last week, the bill fell victim to yet another Republican motion to recommit (see linked story for a backgrounder on the motion).

As TPM Election Central reported earlier, Rep. Eric Cantor (R-VA) announced his intention to offer a motion to recommit the bill with instructions that it be amended "promptly" to include language that nothing in it:

"shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization...from attacking the United States or any United States person."

What does that mean? A couple things.

First, it means that Cantor has devised a vote that some strategists worry will be very tough for Democrats from marginal districts to resist. How, they fret, will these Democrats be able to explain voting no on an "amendment" that supposedly ensures that intelligence operatives won't be tied up in red tape when they need to prevent a terrorist attack?

Second, it means that if enough Democrats sweat this vote and go along with Republicans, the bill gets "recommitted" -- that is, it's sent back to committee.

Third, the choice of the "promptly" language means the bill gets delayed, and can't come to the floor for passage right away. Why is that?

If you love having people stare at you like you're from another planet, read on after the flip and find out. Then you too can be the person nobody will sit next to on day two of the legislative education conference.

There are two basic kinds of motions to recommit: those with instructions and those without. Motions to recommit without instructions send the bill back to committee without telling the committee what to do to fix it. In practice, that means the bill is dead.

Motions to recommit with instructions are themselves of two basic types: those which direct the committee to make certain changes and report (send) the bill back to the House "forthwith" (in practice, meaning immediately, without even leaving the House floor), and those directing the committee to make its changes "promptly" (meaning debate on the bill actually stops, and moves back to the committee.

Most motions to recommit offered these days are the "forthwith" type, which ends up looking to the C-SPAN audience just like any other amendment. It's all taken care of right there on the spot. But a bill recommitted to be reported back "promptly" is not allowed straight back onto the floor. The committees actually have to hold on to them and do the work of fixing the bill separately, which often causes enough delay to kill the bill entirely. And even if it doesn't kill it, it still has go back to the floor, and possibly face yet another motion to recommit it.

But the most egregious part of this particular motion to recommit is that the language Cantor claims to want included in the bill is, depending on how you read it, either redundant (which means recommitting it is a waste of time even if you brought it right back onto the floor) or completely meaningless in any legal sense (which means recommitting it is not just a waste of time, but possibly totally stupid and/or evil).

You see, the bill already has a section outlining procedures for the emergency acquisition of intelligence of this type. So Cantor's motion to recommit is just a gratuitous invocation of Osama bin Laden's scary, scary name, and a way to make Democrats "choose" between moving the bill forward as scheduled or going on record as being "against" tracking down bin Laden.

Of course, what they'd actually be on record against is derailing a bill that allows intelligence operatives to track any terrorist, so that the committee can write Osama bin Laden's name in the bill, and make sure that everyone knows that he's included among the terrorists the bill allows tracking.

But hey, if you vote no, you're "voting against tracking down bin Laden."

Couldn't Democrats just say, "OK, fine. You're an idiot, but if you want bin Laden's name in the bill, you've got it. Let's just move on, amend the bill right here and now, and then pass it?"

Well, they could say so, but remember, Cantor purposely chose the "promptly" language rather than the "forthwith" language. And that means he's intentionally demanding a delay, even if the amendment gets added.

Why?

Because this bill revises the complete capitulation bill passed in August. So the longer it takes to pass this new one, the longer the capitulation bill stays on the books. Cantor is more concerned with blocking the new bill than he is in seeing that it contain bin Laden's name.

Meanwhile, we're now facing pretty much the same situation we had in August. The much better House bill is dead in the water until the Democrats can figure out a way to be sure their Members will stay home on any motion to recommit. And at the same time, the Senate bill -- which is expected to contain the absolutely insane retroactive immunity provisions for the telecom companies that sold out your private phone records (possibly in exchange for fat contracts and preferential review of their merger proposals, but that's another story) -- will likely end up being passed before the House bill, making the Senate bill the "gold standard," so to speak. Republicans will be able to get the Bush Dogs sweating again, maybe telling them they'll offer a motion to recommit next time that adds the immunity provisions so that the two bills match up better and will get signed by the president, without everyone having to delay the next recess to try to come up with a new bill before the August law sunsets.

But however this shakes out down the road, for now, the House bill is on indefinite hold.