FISA fight: Leadership maneuvers you'll actually like

FISA fight got you down? Fed up with the Congressional Democratic leadership? Tired of watching Dems cave, and Republicans use the rules to run roughshod over them?

Perhaps you've heard about how House Republicans have used the motion to recommit to trip up various versions of the FISA bill that don't give retroactive amnesty to the telecom companies. And perhaps you're concerned that despite the much-improved FISA language coming to a vote in the House this week, it'll be undercut by another such motion.

Well, dig this:

The RESTORE Act, H.R. 3773, passed the House last year without including retroactive amnesty for the telecom companies and sent it on to the Senate.

When the Senate took up the issue, it opted not to deal with H.R. 3773, but instead passed its Rockefeller-backed FISA bill (S. 2248) that did include retroactive amnesty. And there was a tremendous uproar among immunity opponents over the procedure the Senate used, making the Bush-backed Rockefeller legislation the base bill, and the immunity-free Judiciary committee bill the substitute, creating an uphill battle for the fight against immunity. That situation created a lot of ill will toward Senate Majority Leader Harry Reid.

Everyone remembers that.

But here's the interesting part. Rather than send S. 2248 to the House once it passed, Reid sent the bill on a little detour. With the unanimous consent of the Senate, he stripped out the language of H.R. 3773 and substituted in the language of S. 2248, vitiated the passage of S. 2248, and sent the amended H.R. 3773 back to the House.

That put the House in the position of considering the Senate amendment to H.R. 3773, as opposed to the original version of S. 2248. What difference does that make? Well, it makes no substantive difference, in that H.R. 3773 as amended now included retroactive immunity, along with all the other garbage we didn't want the Senate to pass.

But as I've stressed a number of times, control of procedure can, in the end, control the substantive outcome.

So, what's a House that's opposed to retroactive immunity to do? Amend H.R. 3773 to take it back out, of course. And that -- along with a number of other substantive improvements -- is what Chairmen Conyers and Reyes plan to do, in the form of an amendment to the Senate amendment to H.R. 3773.

Sounds like a joke, doesn't it? The sort of thing people say when they make fun of the legislative process: the House amendment to the Senate amendment to the bill H.R. 3773.

Only guess what's special about offering an amendment to the amendment that isn't true of just starting over with a new House bill that doesn't have immunity in it?

You can't move to recommit an amendment to an amendment.

So the House gets to strip immunity (and the other junk) back out of H.R. 3773, and the Republicans can't just undo that work with a motion designed to peel off Blue Dogs. If the amendment to the Senate amendment passes, it pops right back out of the House and goes back to the Senate on the express bus, no stops.

And there's more. It arrives back in the Senate in privileged form, as a message from the House (the message being: we amended your crap) the consideration of which is not subject to filibuster. To be sure, the Republicans (or anyone willing to stand in their shoes) can filibuster the actual debate on the House amendment to Senate amendment, but they can't filibuster the question of whether or not to even have that debate, as they can with most other legislation.

That doesn't mean we're out of the woods, of course. The Senate, at Jay Rockefeller's urging, can still decide it wants to overlook the ridiculous trail of surveillance overreaches and lawbreaking in the "administration's" use of surveillance tools that emerges with each passing day. The Senate, at Jay Rockefeller's urging, can still decide that it quite inexplicably continues to trust the Bush-Cheney "administration" with these tools and that they want to blindly continue in their almost childlike belief that they'll somehow be able to exercise oversight of these immense new powers, despite all of the roadblocks the White House routinely throws up in the way of even the most routine inquiries.

The Senate, and Jay Rockefeller, may yet decide they really do want to stand before the American people and say they they're the last people in the country who trust George W. Bush and Dick Cheney on this, even as the effect of the "administration's" fearmongering fades before their very eyes, and new members are elected to Congress in explicit defiance of it.

They might do that.

But if they do, they'll have to do their own dirty work on it, because Harry Reid and Nancy Pelosi have set up the chess board so that the House won't be forced to do it, nor will it let the Senate just quietly pass their immunity bill away from the now-brightening spotlight that's revealing the extent of the Bush-Cheney malfeasance on domestic spying.