selise's blog


how FISA went down in the House

August 9th, 2007 by selise

How was it, that the truly awful S.1927, was passed in a Democratic majority House last week? During the many hours spent watching C-SPAN on Friday and Saturday, and in the days since, we’ve been trying to understand what happened. This is a summary of my understanding to date. I’m indebted to my fellow commenters at FireDogLake (especially pow wow) and to two extremely helpful House aides – of course, all errors are my own. Part I is the timeline. In Part II, based on my conversation with a House Rules Committee aide, I’ll try to answer two questions: "Why was H.R. 3356 (the negotiated, not-as-bad version) brought to a vote on the house floor under a suspension of house rules so that passage required 2/3 votes? a procedure normally used for non-controversial measures?" and "Why was S.1927 brought to a vote on the house floor without a rule, using instead a unanimous consent agreement that allowed passage by simple majority?" Finally, in Part III, I ask: what went wrong and what we can do about it?

Part I – The House Timeline (for the Senate timeline, please see pow wow’s comment):

Sunday, July 29, 2007

From the ACLU:

We weren’t notified that the bill was moving until 6 days before when Rep. Harman let it slip on Late Edition with Wolf Blitzer [transcript]

Tuesday, July 31, 2007

From the Washington Post:

House Minority Leader John A. Boehner (R-Ohio) disclosed elements of the court’s decision in remarks Tuesday to Fox News as he was promoting the administration-backed wiretapping legislation. Boehner has denied revealing classified information, but two government officials privy to the details confirmed that his remarks concerned classified information.

Wednesday, Aug 1, 2007

The House Committee on Rules reported out H.Res. 600 (Rules committee Report #110-291). Included under this rule was an unspecified FISA amendment. This resolution allowed the "Speaker to entertain motions that the House suspend the rules" for "A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain electronic surveillance." From "Floor Procedure In The U.S. House Of Representatives":

A motion to suspend the rules requires a vote of two-thirds of the Members present and voting. No amendments are in order unless submitted with the bill by its manager as part of the motion to suspend the rules.

The purpose of considering bills under suspension is to dispose of non-controversial measures expeditiously

Friday, Aug 3, 2007 (floor summary)

At 1:19 PM the House took up H.Res. 600 and it was passed (228-196) at 5:14 PM after heated debate. In the midst of that debate, it finally emerged that the FISA bill to be considered if made in order by passage of H.Res. 600, would be H.R. 3356. (see congressional record pages H09663-H09675)

At 5:11 PM, Spencer Ackerman of TPM reports, "Bush Nixed Dem-DNI FISA Deal"

At 7:20 PM, John Conyers moved “to suspend the rules and pass the bill (H.R. 3356).” After debate, H.R.3356 failed at 8:58 PM by a vote of 218 in favor, and 207 opposed after debate. (see congressional record pages H09685-H09695) During the debate, Nancy Pelosi stated that:

Without any reference to the current Attorney General, and there will be some who might question his judgment, I don’t want Alberto Gonzales to have this much power, but in a Democratic administration, I would not want that Attorney General to have this much power. It should be a different branch of government. So we have seen them come up with these pieces of legislation that substitute the Attorney General for the FISA courts. It is just totally unacceptable.

At 8:05 PM the House Rules Committee posted a Notice of Action which included H.Res.613 Rules Committee Report #110-298 and H.Res.614 Rules Committee Report #110-299. H.Res.613, would have, like the previous H.Res.600, allowed the Speaker to entertain motions that the House suspend the rules for an unspecified FISA amendment. Passage of a FISA amendment via this resolution would require a 2/3 vote. H.Res.614, on the other hand, would allow a simple majority vote for consideration of an unspecified FISA amendment on Saturday, Sunday or Monday (August 4th through the 6th). Neither of these resolutions would be used.

Saturday, August 4, 2007 (floor summary)

At 8:18 PM Mr. Hoyer asked unanimous consent that, among other things, "that it be in order at any time on the legislative day of August 4, 2007, to consider S. 1927 in the House under the following terms: All points of order against the bill and against its consideration are waived except those arising under clause 10 of rule XXI; The bill shall be considered as read; The previous question shall be considered as ordered on the bill to its final passage without intervening motion except: (a) 1 hour of debate equally divided among and controlled by the chairman and ranking minority member of the committee on the Judiciary and the chairman and ranking minority member of the Permanent Select Committee on Intelligence; and (b) one motion to recommit…" There was no objection (see congressional record page H09952).

At 8:31 PM Mr. Reyes called up S.1927 for debate.

At 10:19 PM the bill passed 227 to 183 (see congressional record pages H09952-H09966)

Part II: "Why was H.R. 3356 (the negotiated, not-as-bad version) brought to a vote on the house floor under a suspension of house rules so that passage required 2/3 votes? a procedure normally used for non-controversial measures?" and "Why was S.1927 brought to a vote on the house floor without a rule, using instead a unanimous consent agreement that allowed passage by simple majority?" As I now understand it (thanks to a patient House Rules aide – all errors are my own), there are two standard ways to bring a bill like H.R. 3356 to a quick floor vote. The most common way would have been to use a special rule like H.Res.614 that would allow a simple majority vote – but would require giving the minority the right to a motion to recommit. A motion to recommit would mean that the minority would have the option to submit one amendment to the bill – and in this case could have used S.1927 as an amendment to substitute for the language of H.R. 3356. On Friday night, though, this type of special rule was not used – instead H.Res.600 (H.Res.613 is similar) was used to allow suspension of the rules and voting to pass by 2/3 majority. This type of procedure does not require giving the minority the option to recommit. So, why did the House leadership decide, on Wednesday, to bring H.R. 3356 to a vote under a suspension of the rules (which is supposed to only be used for non-controversial measures) on Friday – and then stick with this when negotiations with the DNI collapsed on Friday? Why wasn’t a rule like H.Res.614 used? I can think of a few possible reasons:

1. The House leadership thought they would have an agreement with the President and trusted him to make this work. 2. Enough House Democrats preferred the administration’s bill over their own party’s negotiated bill – so that H.R. 3356 would have been successfully amended with S.1927. This would have resulted in the same outcome as passing S.1927 directly (as was done Saturday night). 3. Enough House Democrats preferred their own party’s negotiated bill – so that H.R. 3356 would pass, throwing it into a House / Senate reconciliation conference. Did the House leadership want to avoid this possible outcome? 4. A process which included the option to amend would take far longer (more votes, more debate) – and time was of the essense. The August recess was to begin soon and people had other plans.

Next, why did the House leadership decide, probably on Saturday, to use the very unusual procedure of a unanimous consent agreement for S.1927? What I was told is that the final result of going this route was the same as if H.Res.614 had been used – except that is was much faster (fewer votes, less debate). So, if the decision was to get S.1927 passed, this was the fastest way to get it done. Furthermore, if any congressmember had objected to the unanimous consent agreement, unlike in the Senate, it would not have proceeded to a supra-majority vote. Instead, H.Res.614 would have been used… and since the outcome would be the same (only it would take longer), there was no reason for anyone to object. So, I conclude that the House leadership decided to pass the administration bill, S.1927, in the quickest way possible… and that the vote Friday night on H.R. 3356 was just a bit of political theater. Perhaps they wanted to show that they had negotiated a not-so-bad bill that was more responsible in addressing the administration’s request/demand. Perhaps they wanted to make it look like they were trying to fight against President Bush’s unreasonable demands – even though they had decided not to. Maybe it was a bit of both.

Part III: What went wrong? what we can do about it? Why did the House and Senate leaders work to pass the administration’s bill? By this action, they didn’t just destroy all the protections from abuse FISA was meant to provide – they also undermined all their attempts (real or not) at congressional oversight of Alberto Gonzales. Why was there not more and better communication from the House leadership to us? Why did the House leadership spend, according to the ACLU, "the entire week negotiating with the DNI and cut out ALL the civil liberties groups." Was it incompetence? Was it that civil liberties are just not important to most democrats in congress (including those in the leadership)? Was it that the fear-mongering (justified or not) scared them into acting irrationally? Was it pressure from reactionary dems – especially the freshmen in the House? Are they really just frightened of being called "weak"? From Glenn Greenwald:

…this would not have happened without the full participation of the Democratic leadership. They control the bills, what gets voted on, how long Congress stays in session, all of it. Harry Reid and Nancy Pelosi were ordered by the President to stay in Washington and so they did, keeping the sessions opened and allowing this bill to be enacted. They could have obstructed, filibustered, done all sorts of things to prevent its enactment. They did nothing. Once they knew it would pass, enough of them voted against it to enable those who want to defend them to point to their little meek votes against it as though they are not to blame. Sorry, but they just are.

Whatever the motivation for this complete capitulation by the congressional leadership – this isn’t the first time it’s happened since gaining the majority (Iraq escalation funding, H.CON.R.21, S.AMDT.2073, the pulled Iran Resolution and broken promise for a stand alone bill , the secret trade deal). It’s our job to call them on it – after all they work for us… and sunlight is a good thing for Democrats as well as Republicans. I want our congressional leaders to act like they believe what Howard Dean said at Y2Kos (transcript from Renee in Ohio):

We’re the party that actually believes there is something more important than our party, and that is our country.

Our congressional leaders need to put our country’s principles above their 2008 election plans. Starting now. Because if they don’t, with all due respect to drational, I think their 2008 election plans are going to go to hell. Cautioning people to tow the party line doesn’t work. Giving people a reason to support the party does.

UPDATE: Please consider joining the "They Work for Us Summer Tour" Christy at FireDogLake is organizing.

x-posted at dailykos

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