The FISA bill is a little bit unusual because there are two committees with responsibility for marking it up: Judiciary and Intelligence. The Intelligence Committee has completed their part of it, voting it out of committee with a 13-2 majority. Here are ayes and nays.
Ayes: Rockefeller D-WV, Feinstein D-CA, Bayh D-IN, Mikulski D-MD, Nelson D-FL, Whitehouse D-RI, Bond R-MO, Warner R-VA, Hagel R-NE, Chambliss R-GA, Hatch R-UT, Snowe R-ME, and Burr R-NC.
Nays: Wyden D-OR, Feingold D-WI.
Normally, the bill would go from here directly to the floor, but this particular bill is going to the Judiciary Committee. Here are the members of that committee:
Dems: Leahy D-VT, Kennedy D-MA, Biden D-DE, Kohl D-WI, Feinstein D-CA, Feingold D-WI, Schumer D-NY, Durbin D-IL, Cardin D-MD, Whitehouse D-RI.
GOP: Specter R-PA, Hatch R-UT, Grassley R-IA, Kyl R-AZ, Sessions R-AL, Graham R-SC, Cornyn R-TX, Brownback R-KS, Coburn R-OK.
You can see there is a little overlap. Hatch, Feinstein, Feingold, and Whitehouse serve on both committees. Of these, only Feingold voted against the Intelligence version of the bill.
I encourage you to call every member of these committees, no matter how hopeless you think the cause, and ask them not to grant retroactive immunity to the telecommunications corporations unless the committees get all the information they are seeking and they find the telecommunications corporations were acting in good faith.
But let’s be realistic. Do you think any of the Republicans on the list are going to approve a bill that doesn’t have immunity? Do you think any of them, except possibly Specter, are going to vote for cloture when the bill is filibustered? Even more, do you think we can change the minds of all the Democrats that have already voted for immunity? And even if all that somehow happens, do you think Bush will sign such a bill?
Keep this in mind as we debate what to do with this bill. It will not pass if immunity is not attached to it. The best we can hope for is that the bill does not have immunity. If it does not have immunity we can try to blame the Republicans for putting the telecommunications corporations’ interests ahead of our national security. If it has immunity, the bill will almost certainly pass. But if we successfully filibuster such a bill, it will be much harder to place the blame for the sunsetting of the FISA bill on the Republicans. They will say that we are putting the punishment of the telecommunications corporations over our national security.
Let’s put this another way. If we pass something the president can sign, and he refuses to sign it, then we have an easy case to make. If we have a bill to send to the president, but the Republicans filibuster it, we can make a good case that the Republicans are responsible. But if we are the ones that are filibustering the bill, we will have a harder time winning the debate.
Therefore, the most desirable outcome is that we introduce a bill without immunity. We need to work on the Democratic senators (and Arlen Specter). But we can also win if the House passes a version without immunity and they prevail in the conference that reconciles the House and Senate versions of the bill. Then the bill will go back to the Senate for final approval, and the Republicans will filibuster it.
I don’t see anyway to actually pass the bill and get it signed into law unless it grants immunity. But we can accomplish two goals: letting the law sunset and making sure the lion’s share of the blame for that lies with the Republicans.
We can even bolster our case by offering to pass a FISA fix, or extension, as a stand alone bill.
This is all the context within which Chris Dodd has put his ‘hold’. He’s essentially demanding that the Senate bill have no immunity. Such a bill can never pass. Reid can pull the FISA bill and let it sunset. But if he does that all the blame will lie with the Dems. It would be far preferable, if the bill is going to sunset anyway, to do it the way I laid out above. It, at least, give the members the opportunity to do the right thing.
What we should not do is cave in and pass what the president wants, just because we don’t have the balls to demand accountability.
