As far as I can tell, Senator Reid is preparing to ignore Senator Dodd’s ‘hold’ on any FISA bill that includes telecommunications corporations’ immunity. He will introduce the Intelligence Committee’s bill that includes immunity and then ‘automatically substitute’ the Judiciary Committee’s version that does not include immunity. This is intended to trick you and me into believing that Dodd’s ‘hold’ is being respected. The Senate will then debate the Judiciary bill and amendments to that bill.
If we succeed in defeating any and all amendments that seek to introduce immunity, the bill will go to a final vote (obviously preceded by a vote on cloture to cut off debate). At this point the Republicans may refuse to invoke cloture. If they do, the bill will probably be pulled and the Senate will move on to other things. But if the Republicans are smart, they will vote to invoke cloture. The Senate will then proceed to a vote. Perhaps the Democrats will remain united, and the FISA bill without immunity will pass. But then we’ll hit an improvised explosive device. The Senate will then have to vote to approve the just passed Judiciary version of the bill as the substitute for the underlying base bill…the Intelligence bill that provides for immunity. If the Republicans can defeat the substitution, then the bill will revert to the Intelligence version of the bill.
Why does this matter?
The key here is to give us the advantage. If we do this right, we can introduce a bill without immunity and it will be a choice of voting for that bill or getting nothing. If we do it wrong, we will introduce a bill with immunity and have to filibuster it to prevent passage.
If the base bill has no immunity, it will require sixty votes to introduce immunity. If the base bill has immunity, it will require 41 votes (because of the filibuster rules) to keep it from passing. Depending on how Reid introduces the bill, we can prevail with 41 votes, or fail because we cannot get 60.
The reason Reid is doing this in a way that requires 60 is because he wants to pass something. And the only way he can pass something is to pass exactly what the president wants…which includes immunity. So, he has decided to choose a path that will deceive us about whether or not he is honoring Senator Dodd’s hold, and deceive us about whether he made a good faith effort to prevent immunity.
I am not happy to come to these conclusions, and the reality probably is that Harry Reid doesn’t have the support within the caucus that he would need pursue a strategy of not passing a new FISA bill. The law will sunset in February and too many within the caucus are afraid to let the law sunset.
Nevertheless, we are being set up to not recognize this capitulation for what it is. And I am not happy about it.
