And guess what? He's not beside himself with fear that disagreement with his position will cost him the election.

Here's the key part for me:

Now, I understand why some of you feel differently about the current bill, and I'm happy to take my lumps on this side and elsewhere. For the truth is that your organizing, your activism and your passion is an important reason why this bill is better than previous versions. No tool has been more important in focusing peoples' attention on the abuses of executive power in this Administration than the active and sustained engagement of American citizens. That holds true -- not just on wiretapping, but on a range of issues where Washington has let the American people down.

I learned long ago, when working as an organizer on the South Side of Chicago, that when citizens join their voices together, they can hold their leaders accountable. I'm not exempt from that. I'm certainly not perfect, and expect to be held accountable too. I cannot promise to agree with you on every issue. But I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country.

To no one's surprise, Obama doesn't appear to be in need of defending. He's quite at ease with the fact that there will be disagreements within the family, and doesn't feel compelled to tell anyone to sit in a corner. In other words, he can handle it just fine. Just as his most ardent defenders doubtless knew in their hearts that he could, though they felt moved by the strength of their support to do so, anyway.

Could it be that he in fact does feel the pain very deeply, but dare not let on, for political reasons? Certainly possible. But that would leave us in a very awkward situation, having to consider why our nominee simply can't be straight with us. I prefer to think he's just got a considerably thicker skin than people who don't run for President of the United States, and really means it. Don't you?

On the substance, I continue to disagree with the gloss of the exclusivity provisions. But it should be noted that if a president intends to ignore the law, there's really no way to draft such a provision sufficiently, so it's not a matter of tweaking it or improving it. You either recognize that exclusivity is just so many words so long as we've got a president who is willing to believe he has the "inherent power" to trump any law, or you don't.

I'm also unimpressed by the promise of the report of the Inspectors General, largely because I've been unimpressed with the response of the Congress to all previous such reports, not to mention their inability to actually enforce their own subpoenas.

I'd also note that the promise to conduct a thorough review of all surveillance programs once sworn in is very welcome, though that's not the same thing as saying there will be criminal prosecutions, as some have insisted would be the case. Indeed it might be rather foolish for him to commit to such an investigation before taking office and having the opportunity to review the evidence and the circumstances from the inside. It'd be satisfying as all hell, but I don't think we're going to see that kind of a pledge. As such, future arguments over this issue should probably not turn on promises or even vague hints that such prosecutions are in the offing. They're not, at this point, and though we'd all love to see them, holding out the possibility that they might come through should not be taken as a substitute for a substantive position in favor of the bill. It's a last resort, if anything, and a long shot on top of that. You can't consider your argument won if you're clinging to that sort of a distant possibility.

It was good of Senator Obama to address the subject, and to take notice of the fact that the group of supporters asking him to consider a different position on the upcoming FISA bill had quickly become the single largest group organized on his web site to date. He's not a United States Senator and the Democratic nominee for President for nothing. And neither are the organizers' efforts undeserving of attention.

The substantive differences remain largely unresolved, and likely will remain so. But if Obama wasn't OK with that, he probably wouldn't have run for president. And if you weren't OK with it, you probably wouldn't be participating on blogs.

Back in March, I wrote a story laying out the rationale for drawing out a FISA fight that everyone expected us eventually to lose. ("We don't have the votes!") The basic premise:

Every time Congressional Dems actually slow down and take stock of the situation -- from Senator Chris Dodd's brave (and lonely and seemingly futile) stand, to the cautious maneuvering of House Dems today -- new revelations arise that should make all Americans who value our freedoms glad they did.

Well, the House stopped slowing down recently, and have handed an all-too-willing Senate (which has all along been more willing than the House, it must be noted) a bill that puts retroactive immunity for the pay-for-play telecom spies back on the table. Now it's back in the Senate's lap, with a few brave souls preparing to do what they can to keep the train wreck in slow motion.

Is that worth doing? Sure. And for all the same reasons, which perhaps deserve mention again as Senators prepare to vote on this mess when they come back to work next week. And it couldn't hurt for you to be armed with this list if you see your Senators or Representatives at your local Fourth of July festivities.

So, over the years since we first learned of the Bush domestic spying scheme, and in the six month reprieve that the extended FISA fight has given us, what have we learned about the security and surveillance practices of the "administration" that we supposedly should trust with these new powers?

• We learned that:

  A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier's systems, exposing customers' voice calls, data packets and physical movements to uncontrolled surveillance

• We learned that they resurrected and hid Total Information Awareness:

  Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

  But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

• We learned that all the lines are being erased, with the national security apparatus monitoring domestic data traffic and the FBI becoming a foreign intelligence outfit.

• We've learned that the FBI has committed massive abuses of its powers::

  The Justice Department's inspector general told a committee of angry House members yesterday that the FBI may have violated the law or government policies as many as 3,000 times since 2003 as agents secretly collected the telephone, bank and credit card records of U.S. citizens and foreign nationals residing here.

• We've learned that the FBI still gets it wrong pretty often, too:

  A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode.

• And of course, we've not forgotten the good, old "No-Fly List"

  The Transportation Security Administration's secret no-fly list includes some very unlikely terror suspects -- Bolivian President Evo Morales, 14 of the 19 dead 9/11 hijackers, and every single person named "Robert Johnson."

• We learned that the argument still frequently made that foreign-to-foreign phone calls that pass through the U.S. can't be monitored without the PAA and the new FISA changes, and which are constantly pointed to as the proximate cause of the deaths of American soldiers was... a lie:

  The fight in Congress and the big push for expanded wiretapping powers has nothing to do with intercepting foreign-to-foreign phone calls inside the United States without a court order. In fact, it turns out that the nation's secret wiretapping court is fine with that.

• We learned that the "administration" believes the AUMF rendered the fourth amendment a nullity:

  ... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001).

• We learned that that might not even matter, since the head of the NSA is dead certain there's no probable cause standard in the fourth amendment, anyway:

• We learned that the DOJ may be using your cell phone to track your physical movements without a warrant, or any court oversight.

• We learned that the "administration" says it can read your mail without a warrant:

  President Bush quietly has claimed sweeping new powers to open Americans' mail without a judge's warrant.

  Bush asserted the new authority Dec. 20 after signing legislation that overhauls some postal regulations. He then issued a "signing statement" that declared his right to open mail under emergency conditions, contrary to existing law and contradicting the bill he had just signed, according to experts who have reviewed it.

  A White House spokeswoman disputed claims that the move gives Bush any new powers, saying the Constitution allows such searches.

• We learned that racial profiling is back at the FBI, and this time, it's a-ok:

  Nearly 40 years ago, the FBI was roundly criticized for investigating Americans without evidence they had broken any laws. Now, critics fear the FBI may be gearing up to do it again.

  Tentative Justice Department guidelines, to be released later this summer, would let agents investigate people whose backgrounds — and potentially their race or ethnicity — match the traits of terrorists.

  Such profiling faintly echoes the FBI's now-defunct COINTELPRO, an operation under Director J. Edgar Hoover in the 1950s and 1960s to monitor and disrupt groups with communist and socialist ties.

  Before it was shut down in 1971, the domestic spying operation — formally known as Counterintelligence Programs — had expanded to include civil rights groups, anti-war activists, the Ku Klux Klan, state legislators and journalists.

  Among the FBI's targets were Martin Luther King Jr., Malcolm X, and John Lennon, along with members of black extremist groups, Fidel Castro sympathizers and student protesters.

And of course, all of these unchecked expansions of executive spying power are occurring in a context in which the Congress has found itself almost completely without power to compel any compliance at all with its most serious oversight responsibilities. Despite the assurances they're scrambling to give that all will be well and closely-watched, the reality is that this Congress has been unwilling and/or unable to exercise any serious control over the executive in the way it interprets or implements these powers, even when such implementation is clearly outside the law. In fact, it is precisely because the implementation was outside the law that we're even having this debate, and incredibly, it's a debate about retroactively legalizing it.

In the face of all of these absurdities, rely on the Washington Post to tell us that opposition to this bill at this time -- in the hands of this president, too -- is inherently unreasonable:

Reasonable people can differ on the issue of immunity, but the FISA debate hasn't been overpopulated by reasonable people. As a result, the immunity issue has assumed a significance in the legislative process that far exceeds its underlying importance. We understand the heartfelt arguments of those who believe that closing the courthouse door to Americans who claim the warrantless wiretapping invaded their privacy rights represents "an abandonment of the rule of law," as Sen. Christopher J. Dodd (D-Conn.) said last month.

The editorial actually has passages in it that are considerably worse, and some which are outright false. For example, the assertion that "no one can claim with certainty that his or her communications were monitored." Untrue, as the parties in the Al-Haramain case (as well as that class of people in possession of eyeballs used for reading) well know, but the Washington Post apparently does not.

But if it's true, as the editorial whines, that immunity "is the least -- not the most -- important aspect of the complex FISA debate," you couldn't tell from the traditional media coverage of that debate. Crocodile tears from the Post editorial board are no substitute for the media's missed opportunity to discuss those "most important" aspects of the complex FISA debate. But they've been AWOL on those issues, and it took bloggers latching onto the most politically explosive of the issues to even slow the runaway train long enough for the more important issues -- and I agree there are plenty of them -- to even get a second look.

The Post, of course, would have you flush that opportunity down the toilet in the mad rush to inscribe the mistakes being made on those more important issues on the books. How "reasonable," indeed.

Unchecked expansion of spying powers. A complete lack of enforceability of Congressional oversight. A lapdog press that actually can't wait to cheerlead for the collapse of all controls.

Has there been any point in our history when it's made less sense for the Congress to cede even broader powers to the executive?

In one last, great irony, you and your representatives in Congress are given one last chance to think this over: the Independence Day holiday. I urge you to think more deeply and seriously about it than the Washington Post has.

Think Progress has the story of how George W. Bush and John McCain, both outspoken opponents of Sen. Jim Webb's "new G.I. Bill," which was signed into law in the new Iraq war supplemental (BTW, did you notice that that passed? $160 billion in no-restrictions war money?), are now slapping each other on the back and taking credit for it:

The bill is a result of close collaboration between my administration and members of both parties on Capitol Hill. ... I want to thank members who worked hard for the GI Bill expansion, especially Senators Webb and Warner, Graham, Burr, McCain. This bill shows that even in an election year, Democrats and Republicans can come together to stand behind our troops.

Horseshit, of course. Hell, McCain didn't even show up for the vote on the damn thing.

But isn't it curious that we could see this happen (repeatedly, no less) right before our very eyes, and yet top Democratic strategists can simultaneously believe that voting for Republican FISA and other "national security" bills will actually "neutralize the issues" and shield Dems from attacks?

I guess anything can happen in a world where nobody blinks when the President of the United States and the man he hopes will be his successor both flip-flop that shamelessly. But it makes you wonder why anybody thinks of Republicans as bound by logic.

While the Republicans are busy figuring out whether they can just attack Democratic FISA supporters on FISA anyway, they're wasting no time attacking them on everything else:

Freedom's Watch, a conservative-aligned independent group, is sponsoring radio ads in 16 congressional districts -- bashing Democratic incumbents for their alleged culpability for sky-high gas prices.

"These Members, who claim to be leaders, have gone on vacation and failed to do anything to address the pain people are feeling at the pump and in their wallets," said Carl Forti, director of issue advocacy for the group. "They have done Nancy Pelosi's bidding and repeatedly stood in the way of increasing domestic oil production and exploration, when they should be listening to their constituents."

The targeted Dems?

LA-06 - Rep. Don Cazayoux
MS-01 - Rep. Travis Childers
TX-22 - Rep. Nick Lampson
KS-02 - Rep. Nancy Boyda
WI-08 - Rep. Steve Kagen
TX-23 - Rep. Ciro Rodriguez
OH-18 - Rep. Zack Space
NH-01 - Rep. Carol Shea-Porter
AZ-05 - Rep. Harry mitchell
CA-11 - Rep.Jerry McNerney
GA-08 - Rep. Jim Marshall
FL-16 - Rep. Tim Mahoney
NY-20 - Rep. Kirstin Gillibrand
AZ-08 - Rep. Gabrielle Giffords
PA-10 - Rep. Chris Carney
PA-11 - Rep. Paul Kanjorski

All but Shea-Porter [CORRECTION: and Kagan!] voted "yea" on the FISA bill. Enjoy the rewards!

Hey, at least it's not a FISA attack. Yet.

Whoops! Looks like Good Ol' Reg'lar Guy John McCain has "forgotten" to pay his bills yet again!

When you're poor, it can be hard to pay the bills. When you're rich, it's hard to keep track of all the bills that need paying. It's a lesson Cindy McCain learned the hard way when NEWSWEEK raised questions about an overdue property-tax bill on a La Jolla, Calif., property owned by a trust that she oversees. Mrs. McCain is a beer heiress with an estimated $100 million fortune and, along with her husband, she owns at least seven properties, including condos in California and Arizona.

San Diego County officials, it turns out, have been sending out tax notices on the La Jolla property, an oceanfront condo, for four years without receiving a response.

Darn it! This just seems to keep happening over and over to Good Ol' Reg'lar John.

He forgets to have his campaign pay for using his wife's jet. He forgets to pay for using Charles Keating's jet. And now this. Why, that wacky maverick!

And what a Reg'lar Guy thing to do, too. Isn't it? To forget to pay taxes for four years on your beach condo? Your seventh? Eighth? Ninth property? I keep forgetting.

Why, just the other day I was on my way home from the Applebee's salad bar, which I had forgotten didn't exist, and I said to myself, "Oh, I may have forgotten to pay my taxes. For several years in a row. Like, maybe since 2004. Even though my job is to scream at passersby about taxes every day."

But these things happen to us Reg'lar Guys, don't they? I mean, who among us hasn't been tax delinquent for years on end on our beach properties, when you get right down to it? Ha ha!

Hey, wouldn't you rather have a beer with me? I'll pay you back later.

One of the most frequently asked questions about Senate procedure these days is, WTF with these "holds?" Or more accurately, "How come Harry Reid blew off Chris Dodd's hold on the FISA bill, but Tom Coburn gets to have 100 bills on hold and nobody bats an eyelash?"

Well, aside from the fact that eyelashes are, in fact, now batting on the Coburn holds, it seems clear that not all holds are created equal. Here's my attempt to explain why. I tried making this more formal, but it just kept getting bogged down. So here it is, quick and dirty, pretty much the way I discussed it with a friend in e-mail.

Holds, like everything in the Senate, actually have a lot of moving parts. When you put a hold on a bill, the Majority Leader does a private mental calculus, sometimes informed by other political intelligence, whip counts, outright threats, or what have you, and sometimes not.

It goes something like this:

A Senator tells Reid (or tells McConnell to tell Reid) he wants to put a hold on a bill.

Reid asks himself whether enough people give a shit about the bill for him to spend the amount of time it's going to take either to: 1) figure out how many Senators give a shit, or; 2) go through the process of voting on it despite the hold.

Why might Reid want to go through the process of voting on it despite the hold? Well, he might not want to, per se, but the job of Majority Leader in the Senate is different from that of Majority Leader in the House in that in the House, bills come to the floor backed by a decision of a majority. That is, bills that come to the floor under a rulehave already had a vote in which some majority has said they want it there. So majorities routinely tell the minority that it's tough luck if they don't like it, it's coming anyway. In the Senate, the normal mode of bringing something to the floor is by unanimous consent.

That's where the hold comes from. It's just an indication to the Majority Leader, whose job it is to keep the schedule moving, that a Senator will, if necessary, object to a unanimous consent request to bring the bill to the floor.

Now, that's not the only way bills get to the Senate floor. It's just the preferred way. Because if you have a unanimous consent agreement, you can build the equivalent of a House rule into it -- how much debate time will there be, how many amendments, which ones, and so forth. But if you don't have such an agreement, then everything's under the Senate's very open debate rules, including the possibility of a filibuster. If the Senate agrees to a unanimous consent agreement limiting debate time before bringing a bill to the floor, it can't be filibustered after that. Without the agreement, there's a danger of filibuster.

So if one Senator says he'll object to a unanimous consent agreement, it's also an implied signal that if the Majority Leader brings the bill to the floor anyway, the objecting Senator may filibuster.

Now the Majority Leader starts calculating. One Senator filibustering all by himself is a pain in the ass, but nobody can stay on their feet forever. And if the filibustering Senator sits down and stops talking, the floor is open to make a motion that the Senate immediately proceed to a vote. So the next question is, does he have allies? Will they also stay on their feet for hours or even days at a time if necessary? How many allies are there? Enough so that nobody will really even have to work all that hard, and can just take, say, a two hour shift and keep the debate going forever? Or more importantly, does he have so many allies that the Majority Leader would lose a cloturevote? In considering this, the calculation has to include not only how many allies the Senator has on the substantive issues, but also how many Senators would support the filibuster just to screw with the Majority Leader? Or because they have a hold on something too, and need the other Senator's support for it?

The other calculation is about time. If the schedule is busy, and especially if there are any deadlines looming, even a failed filibuster with no allies at all can ruin your week. If the Majority Leader can't get a unanimous consent agreement, his only other choice if he wants to move the bill is to make a motion to proceed to consider. That's just a motion that the Senate start debate on whatever the bill is. The problem is that the motion to proceed is itself subject to a filibuster. So the same calculations have to be made.

Even if the Senator is almost entirely alone, getting a bill to the floor is a pain in the ass. Because the motion to proceed is subject to a filibuster, the Majority Leader will make the motion and then immediately file a motion for cloture on the motion to proceed. That's because a cloture motion must, by rule, wait two days before there can be a vote on it. So it's two days from making the motion to proceed before you can even have a vote on whether or not to vote on that motion to proceed. Then, even if you trounce the objecting Senator in the cloture vote, the rules also allow up to 30 hours of post-cloture debate, if the objecting Senator(s) choose to claim them. So all told, it can take 78 hours of Senate time to overcome the objections of a Senator with a hold. And that's just to get to the start of debate on the bill, which will itself then be subject to a filibuster. As would all amendments to the bill.

If the objecting Senator is still making a stink, you'll want to file for cloture on the bill, too, which means waiting the same 78 hours to get that over with. So it can take a full week of the Senate's time to get to a vote on a bill that's being held -- and that's only if there are no amendments to it. If there are amendments and you file for cloture as soon as the actual bill's debate starts, it can have the effect of precluding debate on amendments, because once cloture is invoked on the bill, that ends debate, including debate on amendments. And some of those amendments are going to be things you and your colleagues want to vote on. You might even find that if you file cloture right away, some Senators who have important amendments but oppose the filibuster will vote no on cloture anyway, just so that they can get a chance to offer and debate their amendments. So you can't file cloture right away. Instead you have to let debate on the amendments begin. And if the objecting Senator just wants to blow up the whole thing, he can filibuster the amendments, and then again you take three days to get to a vote on that amendment. And so on, and so on, and so on.

Of course, someone in the position that Senator Dodd was in last December might want to filibuster the motion to proceed, and filibuster the underlying bill at the end of the process. But he wouldn't want to filibuster his own amendment to strip the immunity provisions from the FISA bill. In fact, a lot of Senators who opposed Dodd's amendment and supported the bill probably wanted to file cloture on the whole bill right away, so that very few if any amendments could have been considered. In the negotiations preceding consideration of the bill, then, that provided leverage for the other side in getting concessions back from Dodd. For instance, the 60 vote requirement for passage of certain amendments might have been something that Dodd found he had to agree to, just to get the other Senators to agree not to file for cloture on the whole bill right away, thereby preserving his opportunity to offer his immunity-stripping amendment.

So the rules actually don't allow a single Senator to simply block a bill forever just by putting a hold on it. But the practical effect of a hold and the threat it implies -- depending on how many allies the Senator has to help him hold the floor -- is that the Senate may have to spend weeks on end dealing with this one bill and its amendments. And if it's a dumb-ass bill that nobody really needs to pass, even if it would be nice to have it, the Majority Leader's mental calculus on the question of should he tell the holding Senator to go jump in the lake, is an immediate "no." It sucks, but it's better just to "honor" the hold and not bother with the time they would waste pushing this bill through. That's the case with some of what Coburn held. Everybody wanted to pass them, they were very popular (i.e., not "dumb-ass" at all), but ultimately nobody wanted to spend a whole week on it.

With Dodd and FISA, the situation was different. A large majority of the Senate wanted to pass it, didn't much care if it took two weeks to do it, and felt it was a reasonable trade-off to have to do it, since the Protect America Act was "expiring" and they'd just have to bite the bullet and be bored for two weeks.

Once that became clear, the question was whether Reid should take the responsibility of making the motion to proceed, or whether he should refuse on principle, only to see Rockefeller make it and win it over Reid's objections (assuming he really was opposed to it). Staying on top as Majority Leader is a delicate balance. The Senate Democratic Caucus is relatively small, and it's filled with egos who all believe they could and should be Majority Leader instead of you. So you want to avoid situations where sizable majorities of your own caucus side with someone else and override you because they perceive you as standing in the way of their voting on a bill that they think will save their asses from Republican attacks. If you get between them and the magic potion they think will win them reelection, they will find themselves a Majority Leader who won't do that to them.

So Reid counts the votes, sees that it's inevitable that this bill is coming to the floor in three days or less, and he can either sacrifice his leadership position on that altar, or read the writing on the wall and move it to the floor and vote against it if he doesn't like it.

And that's the story of the Senatorial hold.

But keep in mind that that whole thing is too complex for any traditional media reporter to write about. No editor would ever give a reporter that much space to explain something that complex, when he's supposed to be covering the actual bill. Instead, it's much easier to just tell people that a hold can magically keep a bill off the floor forever, since in the overwhelming number of cases, that's what the practical effect of it looks like from the outside. So people get used to believing that, and then are stunned when a hold they actually favor goes the other way.

And that's why blogs were invented, and people like them better than newspapers. The end.

The House has begun its recess -- officially known as a district work period -- and won't return for legislative business until after the July 4th holiday weekend. But there's a pro forma session scheduled for Monday, so I guess we're still in "Insane President Recess Appointment Prevention Mode."

Strike that. It's the Senate that will hold the pro forma session on Monday.

The Senate has a session today, but no votes are expected. Then it too will recess for the next week, with FISA at the top of the agenda when they return. Use the brief reprieve you've been given to let your Senators know how you feel. They'll be coming to an Independence Day parade or picnic near you.

Let's take a look back at the week that was, from the White House's perspective:

• H.R. 6331 - Medicare Improvements for Patients and Providers Act of 2008 (Rep. Dingell/Rangel – Energy and Commerce/Ways and Means.

  Passed the House on Tuesday by a vote of 355 - 59. Filibustered in the Senate, where cloture failed by a vote of 58-40. (Harry Reid's "no" vote was procedural, giving him the right to call up cloture again for reconsideration.) Bush threatens a veto.

• H.R. 6346 - Federal Price Gouging Prevention Act (Rep. Stupak – Energy and Commerce)

  Failed in the House by a vote of 276-146, because the bill was brought under suspension of the rules, requiring a 2/3 majority to pass. Bush threatened a veto.

• H.R. 6275 - The Alternative Minimum Tax Relief Act of 2008 (Rep. Rangel – Ways and Means) (Subject to a Rule)

  Passed the House on Wednesday by a vote of 233 - 189. Bush threatens a veto.

• H.R. 6251 - Responsible Federal Oil and Gas Lease Act (Rep. Rahall – Natural Resources)

  Failed in the House on Thursday by a vote of 223-195, because the bill was brought under suspension of the rules, requiring a 2/3 majority to pass. Bush threatened a veto.

Also this week: Some stuff passed that Bush did not threaten with a veto.

Senator Sheldon Whitehouse (D-RI), December 7, 2007:

[L]ook what the Bush Administration does behind our backs when they think no one is looking. For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified.  Here they are, as accurately as my note taking could reproduce them from the classified documents.  Listen for yourself.  I will read all three, and then discuss each one.

1. An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.

In a nutshell, these three Bush administration legal propositions boil down to this:

1. "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."
2. "I get to determine what my own powers are."
3. "The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is."

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up.

Senator Sheldon Whitehouse (D-RI), June 25, 2008:

Question:  On Cloture on the Motion to Proceed (Motion to Invoke Cloture on the Motion to Proceed to H.R. 6304 )

Measure Title: A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

Whitehouse (D-RI), Yea  

Sheldon Whitehouse believes in Double Secret Exclusivity. He is living in a dream world.

UPDATE: Looking for something to do about it? Your Senators are coming home to wave the flag and march in your hometown July 4th parades. Why not be there to show the colors yourself?

"Crossword Tommy" Coburn, scourge of bathroom lesbians everywhere, is notorious among his colleagues for being a serial abuser of the Senatorial "hold," used to block legislation from coming to the floor for a vote.

Lots of people have wondered how it is that Coburn is able to hold up so many bills, many of them extremely popular on both sides of the aisle. Well, the truth is that a hold by itself doesn't actually stop legislation. A lot of other factors have to come together to make it work, but that's a subject for another day.

Today, let's just enjoy the anticipation of seeing what happens when those other factors begin to unravel:

Majority Leader Harry Reid (D-Nev.) is planning a "Coburn Omnibus" for July that would wrap most if not all of the bills held by Sen. Tom Coburn (R-Okla.) into one large measure to be voted on by the Senate, according to a Coburn aide and two Democratic leadership staffers.

Coburn is blocking roughly a hundred bills that are generally non-controversial or have broad support. By placing a hold, Coburn prevents the bills from passing quickly through the Senate under a unanimous consent request. With floor time at such a premium, Reid would have trouble bringing up each bill for an individual debate and vote.

But in a stroke of legislative creativity that may have no precedent, Reid could lump all of the bills into one package and bring up the Coburn Omnibus for a single vote. Coburn can still object, but the broad popularity of the bills means that there would likely be more than enough support for veto-proof passage.

Ha-ha!

This would really be a terrific play by Reid. Individually, these bills -- though they enjoy popular, bipartisan support -- aren't by themselves a high enough priority for the use of Senate floor time to justify jumping through the hoops of Coburn's objections, motions to proceed, cloture votes, etc. But lumped together, they can all be moved at once, and lean on one another for the support of a large majority of Senators, many of whom have had e-friggin'-nuff of Coburn's shenanigans.

Kudos to Reid for the idea, and a backhanded thanks to Crossword Tommy for illustrating for us why, once upon a time at least, Senators didn't just put holds on everything under the sun.

In the House, courtesy of the Majority Leader:

House meets at 10 a.m. for Legislative Business
10 "one minutes" [definition] per side
Last vote predicted: 5:00 - 6:00 p.m.

H.R. 6052 – The Saving Energy Through Public Transportation Act of 2008 (Rep. Oberstar – Transportation and Infrastructure) (Subject to a Rule) [definition]

Suspensions [definition](2 Bills)  

1.     H.R. __ - The Energy Markets Emergency Act (Rep. Peterson/Rep. Van Hollen – Agriculture)

2.     H.R. 6251 - Responsible Federal Oil and Gas Lease Act (Rep. Rahall – Natural Resources)

Postponed Suspension Votes (13)  

1.     H.Res. 1294 - National Save For Retirement Week (Rep. Schwartz – Ways and Means)

2.     H.Con.Res. 163 - Expressing the sense of Congress in support of further research and activities to increase public awareness, professional education, diagnosis, and treatment of Dandy-Walker syndrome and hydrocephalus (Rep. Wilson (NM) – Energy and Commerce)

3.     H.Res. 353 - Expressing the sense of the House of Representatives that there should be an increased Federal commitment supporting the development of innovative advanced imaging technologies for prostate cancer detection and treatment (Rep. Cummings – Energy and Commerce)

4.     H.Res. 1231 - Supporting the goals and ideals of Vietnam Veterans Day and calling on the American people to recognize such a day (Rep. Shuler – Veterans’ Affairs)

5.     H.R. 2245 - To designate the Department of Veterans Affairs outpatient clinic in Wenatchee, Washington, as the Elwood "Bud" Link Department of Veterans Affairs Outpatient Clinic (Rep. Hastings (WA) – Veterans’ Affairs)

6.     H.R. 4264 - To name the Department of Veterans Affairs spinal cord injury center in Tampa, Florida, as the "Michael Bilirakis Department of Veterans Affairs Spinal Cord Injury Center" (Rep. Miller (FL) – Veterans’ Affairs)

7.     H.R. 4289 - To name the Department of Veterans Affairs outpatient clinic in Ponce, Puerto Rico, as the "Euripides Rubio Department of Veterans Affairs Outpatient Clinic" (Rep. Fortuno – Veterans’ Affairs)

8.     H.R. 4918 - To name the Department of Veterans Affairs medical center in Miami, Florida, as the "Bruce W. Carter Department of Veterans Affairs Medical Center" (Rep. Ros-Lehtinen– Veterans’ Affairs)

9.     H.Res. 1291 - Expressing gratitude for the contributions of the American GI Forum on its 60th anniversary (Rep. Rodriguez – Veterans’ Affairs)

10.   H.Res. 1271 - Recognizing National Homeownership Month and the importance of homeownership in the United States (Rep. Gary Miller (CA) – Financial Services)

11.   H.Con.Res. 370 - Expressing support for designation of September 2008 as "Gospel Music Heritage Month" and honoring gospel music for its valuable and longstanding contributions to the culture of the United States (Rep. Sheila Jackson–Lee – Oversight and Government Reform)

12.   H.Con.Res. 195 - Expressing the sense of the Congress that a National Dysphagia Awareness Month should be established (Rep. Wamp – Oversight and Government Reform)

13.   H.Con.Res. 365 – Honoring the life of Robert Mondavi (Rep. Thompson (CA) – Oversight and Government Reform)

* Conference Reports [definition] may be brought up at any time.
* Motions to go to Conference [definition] should they become available.
* Possible Motions to Instruct Conferees [definition].

In the Senate:

Convenes: 9:30am
Resume motion to proceed to H.R.6304, FISA, post cloture.

You're probably getting the idea just from the visual representation that either the House schedule is a lot easier to predict than the Senate schedule, or the Senate is very lazy. Crack wise about the Senatorial work ethic if you like, but the real reason is in fact that Senate rules make things much less predictable. The House Majority Leader, backed by the Rules committee which sets the parameters for each debate ahead of time by having them adopted on a case-by-case basis by a majority of the House, can be sure of how approximately how long each debate will take.

In the Senate, things are much harder to pin down ahead of time. They don't adopt discrete sets of debating rules for each bill. Instead, debate is by default open-ended, and nobody knows how long it will take or how many amendments there might be unless the Majority and Minority Leaders work out a unanimous consent agreement that sets agreed-upon limits.

The Senate agreed to cloture on the motion to proceed on H.R. 6304, the FISA destruction bill, at 6:25 p.m. EDT yesterday. Since Senate rules allow up to 30 hours of post-cloture debate, it could be as late as 12:25 a.m. tonight before they're even allowed to start debating the actual bill itself. Will they use it all? Nobody knows yet, and that's why there's nothing else promised on the schedule.

NYT:

The White House in December refused to accept the Environmental Protection Agency’s conclusion that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing the document would not be opened, senior E.P.A. officials said last week.

The document, which ended up in e-mail limbo, without official status, was the E.P.A.’s answer to a 2007 Supreme Court ruling that required it to determine whether greenhouse gases represent a danger to health or the environment, the officials said.

This week, more than six months later, the E.P.A. is set to respond to that order by releasing a watered-down version of the original proposal that offers no conclusion. Instead, the document reviews the legal and economic issues presented by declaring greenhouse gases a pollutant.

In early December, the E.P.A.’s draft finding that greenhouse gases endanger the environment used Energy Department data from 2007 to conclude that it would be cost effective to require the nation’s motor vehicle fleet to average 37.7 miles per gallon in 2018, according to government officials familiar with the document.

About 10 days after the finding was left unopened by officials at the Office of Management and Budget, Congress passed and President Bush signed a new energy bill mandating an increase in average fuel-economy standards to 35 miles per gallon by 2020. The day the law was signed, the E.P.A. administrator rejected the unanimous recommendation of his staff and denied California a waiver needed to regulate vehicle emissions of greenhouse gases in the state, saying the new law’s approach was preferable and climate change required global, not regional, solutions.

California’s regulations would have imposed tougher standards.

The EPA scientists said California's regulations should have been approved. But the political officials at the EPA were instructed to reject it anyway, and did so.

The Supreme Court said the EPA's process was B.S., and ordered the government to do a serious scientific evaluation of the effect of greenhouse gasses.

The EPA half-assed it, sent their report to the White House as ordered by the Supreme Court, but the White House told the EPA, and by fairly direct extension, the Supreme Court of the United States, to go pound sand.

So Waxman subpoenas the records, and they tell him the same thing. Astounded, Waxman declares, "I Don't Think We've Had a Situation Like This Since Richard Nixon.", even as we're seeing exactly this situation right now with Miers and Bolten, and Waxman had been in Congress nearly ten years already when Reagan's EPA Administrator also did this exact same thing -- advised, by the way, by the exact same White House counsel, Fred Fielding.

These are the guys who are supposed to be penned in by the brand new Double Secret Exclusivity provisions of the new FISA bill?

And they'll be watched by a Government Oversight chairman who doesn't remember the most spectacular contempt of Congress case in modern history?

Somebody wake me up from this nightmare.

Courtesy of the Majority Leader:

House meets at 10 a.m. for Legislative Business
15 "one minutes" [definition] per side
Last vote predicted: 6:00 p.m.

H.R. 6275 - The Alternative Minimum Tax Relief Act of 2008 (Rep. Rangel – Ways and Means) (Subject to a Rule)

H.R. 3195 - ADA Amendments Act (Rep. Hoyer/Rep. Blunt/Rep. Sensenbrenner/Rep. George Miller/ Rep. Conyers - Education and Labor/Judiciary/Transportation and Infrastructure/Energy and Commerce) (Subject to a Rule)

H.R. 2176 - To provide for and approve the settlement of certain land claims of the Bay Mills Indian Community (Rep. Stupak – Natural Resources) (Subject to a Rule)

Suspensions [definition] (3 Bills)

1.     H.R. __ – Stop Child Abuse in Residential Programs for Teens (Rep. George Miller - Education and Labor) (Complete Consideration)

2.    S. 3180 – A bill to Temporarily extend programs under the Higher Education Act of 1965 (Sen. Kennedy – Education and Labor)

3.    H.Con.Res. _ -  Authorizing the use of the rotunda of the Capitol for a ceremony commemorating the 60th Anniversary of the integration of the United States Armed Forces (Rep. Skelton – Armed Services)

Postponed Suspension Votes (14)

1.    H.R. 3546 - To authorize the Edward Byrne Memorial Justice Assistance Grant Program at fiscal year 2006 levels through 2012 (Rep. Johnson (GA) – Judiciary)

2.     H.Res. 1294 - National Save For Retirement Week (Rep. Schwartz – Ways and Means)

3.     H.Con.Res. 163 - Expressing the sense of Congress in support of further research and activities to increase public awareness, professional education, diagnosis, and treatment of Dandy-Walker syndrome and hydrocephalus (Rep. Wilson (NM) – Energy and Commerce)

4.     H.Res. 353 - Expressing the sense of the House of Representatives that there should be an increased Federal commitment supporting the development of innovative advanced imaging technologies for prostate cancer detection and treatment (Rep. Cummings – Energy and Commerce)

5.     H.Res. 1231 - Supporting the goals and ideals of Vietnam Veterans Day and calling on the American people to recognize such a day (Rep. Shuler – Veterans’ Affairs)

6.     H.R. 2245 - To designate the Department of Veterans Affairs outpatient clinic in Wenatchee, Washington, as the Elwood "Bud" Link Department of Veterans Affairs Outpatient Clinic (Rep. Hastings (WA) – Veterans’ Affairs)

7.     H.R. 4264 - To name the Department of Veterans Affairs spinal cord injury center in Tampa, Florida, as the "Michael Bilirakis Department of Veterans Affairs Spinal Cord Injury Center" (Rep. Miller (FL) – Veterans’ Affairs)

8.     H.R. 4289 - To name the Department of Veterans Affairs outpatient clinic in Ponce, Puerto Rico, as the "Euripides Rubio Department of Veterans Affairs Outpatient Clinic" (Rep. Fortuno – Veterans’ Affairs)

9.     H.R. 4918 - To name the Department of Veterans Affairs medical center in Miami, Florida, as the "Bruce W. Carter Department of Veterans Affairs Medical Center" (Rep. Ros-Lehtinen– Veterans’ Affairs)

10.   H.Res. 1291 - Expressing gratitude for the contributions of the American GI Forum on its 60th anniversary (Rep. Rodriguez – Veterans’ Affairs)

11.   H.Res. 1271 - Recognizing National Homeownership Month and the importance of homeownership in the United States (Rep. Gary Miller (CA) – Financial Services)

12.   H.Con.Res. 370 - Expressing support for designation of September 2008 as "Gospel Music Heritage Month" and honoring gospel music for its valuable and longstanding contributions to the culture of the United States (Rep. Sheila Jackson–Lee – Oversight and Government Reform)

13.   H.Con.Res. 195 - Expressing the sense of the Congress that a National Dysphagia Awareness Month should be established (Rep. Wamp – Oversight and Government Reform)

14.   H.Con.Res. 365 – Honoring the life of Robert Mondavi (Rep. Thompson (CA) – Oversight and Government Reform)

Postponed Vote on Kirk Motion to Instruct Conferees on H.R. 4040 - The Consumer Product Safety Modernization Act of 2007 (Rep. Rush – Energy and Commerce)

In the Senate:

Convenes: 9:30am
Resume consideration of the House Message to accompany H.R.3221, Housing Reform.

That's it?

Well, no. Wednesday afternoon, the cloturemotion on the motion to proceed on the FISA bill can be voted on, after the expiration of the required two day waiting period (the cloture motion having been filed on Monday).

By rule, that leaves 30 hours of post-cloture debate available just on the motion to proceed, meaning it could be as late as Thursday night before the Senate can proceed to actual debate on the FISA bill itself, though they could decide by unanimous consent not to use or otherwise run out the whole 30 hours. And note that until any unanimous consent agreements are approved stating otherwise, the FISA bill itself is still subject to filibuster, both of the underlying bill, and of any amendments to it. That could potentially make it tough to get to other important pending bills, like the Iraq appropriations/GI Bill/unemployment extension.

Review Quiz!

Under what rule were the House votes listed above postponed?

The answer is here, and if you didn't have to click through to get it, congratulations! You've been forced to learn something, whether you wanted to know it or not!

Is the Senate's race to the recess catching up with them? The upper chamber still has the housing bill (H.R. 3221) to finish up, in addition to FISA and the Iraq supplemental/GI Bill/unemployment extension.

Here's Harry Reid, on the floor earlier tonight, describing the problem and its consequences:

I know of only one holdup on our being able to complete the housing legislation. If we can't get that Senator to sign off on this, then we only have one alternative and that is we'll file cloture tomorrow on another arm of this housing legislation. We will have cloture on that two legislative days later and then we still have one more to do. Now, that would mean we would have to be here over the weekend. Now, that was not anticipated we would do that. In the meantime, having done that, we are not going to be able to -- it will hold up our being able to do FISA. We wanted to do a consent agreement on that tonight. That was -- I was told that would not be possible.

Now, Mr. President, on that, there are people who don't like the FISA legislation. Now, I recognize that the majority of the Senate does. But some people don't like it. But in spite of that, I have found the two people that speak out mostly against that -- and there are others -- but Senator Feingold and Senator Dodd have been very -- Senator Feingold and Senator Dodd have been very diligent in their opposition to the legislation. But, of course, they understand the Senate very well. They understand the Senate very well.

[...]

And so what we would like to do is have a cloture vote on the motion to proceed to that. Well, we can't do that unless it's by consent. So, therefore, we're going to have to do cloture on the motion to proceed to FISA at some later time. And then that only allows us to proceed to the bill. And then we still have to do cloture on the bill.

Now, Mr. President, FISA is a product of the administration. It's passed the House and that's fine. But we're not going to stop people from going home for the 4th of July recess over FISA. If people don't want to do it, then we're not going to do it. It's not because we're holding it up over here, is what I'm saying. It's being held up by the minority. Now, we're going to -- we're going to proceed and we're going to stay here and finish this housing bill. Mr. President, the Case-Schiller home price index registered the largest decline in home prices in that index's history. That's more than 40 years. Consumer confidence is at an all-time low. So we're going to finish the housing bill. It may knock a few people out of parades on July 4th, or whatever -- however long it takes us to do this.

Now, the other product we have that we want to finish before we go home is the supplemental appropriation bill. Again, Mr. President, there's been a delicately crafted piece of legislation that has come from the House on this. They've worked very hard to get the House leadership to approve that, Democratic and Republican, the President of the United States has signed off on this.

Is it everything that I want? Is it everything we want over here? The answer is no. But I think, Mr. President, it's something that will pass with a very large margin over here. But we can't get to it unless people allow us to get to it. And so that, too, would have to wait until we get back after the July 4th recess. I think that would be a shame. We've been [told] that the Pentagon can pay the bills until about the middle of February. Then they're out of money. Now, that -- the President -- I want the President, all of his people to hear what I'm saying. We are not holding up the supplemental. We, the Democrats, are not holding it up. We, the Democrats, are not holding up FISA.

It was an odd choice to schedule FISA for consideration before the supplemental. Nobody wants to go home for July 4th parades without passing the GI Bill, and a fair number of Senators feel the same way about the housing bill, the war funding and/or the unemployment benefits extenstion. Putting FISA -- a contentious bill that was sure to produce extended debate -- before the supplemental virtually guaranteed either a delayed adjournment or serious discomfort among the membership.

What an... interesting decision that was. Let's see how that plays out tomorrow, when debate resumes on the housing bill, and the cloture vote on the motion to proceed to the FISA bill coming due in the afternoon.

Just like in December, the FISA bill suddenly faces long odds for passage before recess grants yet another (short) reprieve.

UPDATE: Some of you were left less than inspired by Reid's discussion of the procedure. To make up for it, here's Dodd on the substance.

Courtesy of your friendly neighborhood House Majority Leader:

House Meets At 9:00 a.m.: Morning Hour [definition];
10:00 a.m.: Legislative Business  
Unlimited "One Minutes" [definition] Per Side

Last Vote Predicted: 5:00 – 6:00 p.m.

Suspensions [definition] (23 Bills):

1. H.R. 6331 - Medicare Improvements for Patients and Providers Act of 2008 (Rep. Dingell/Rangel – Energy and Commerce/Ways and Means
2. H.R. 6327 - The Federal Aviation Administration Extension Act of 2008 (Rep. Rangel – Ways and Means)
3. H.R. 6307 – Fostering Connections to Success Act (Rep. McDermott – Ways and Means)
4. H.Res. 1294 - National Save For Retirement Week (Rep. Schwartz – Ways and Means)
5. H.R. 6346 - Federal Price Gouging Prevention Act (Rep. Stupak – Energy and Commerce)
6. H.Con.Res. 163 - Expressing the sense of Congress in support of further research and activities to increase public awareness, professional education, diagnosis, and treatment of Dandy-Walker syndrome and hydrocephalus (Rep. Wilson (NM) – Energy and Commerce)
7. H.Res. 353 - Expressing the sense of the House of Representatives that there should be an increased Federal commitment supporting the development of innovative advanced imaging technologies for prostate cancer detection and treatment (Rep. Cummings – Energy and Commerce)
8. H.R. 2818 - Veterans' Epilepsy Treatment Act of 2008 (Rep. Perlmutter – Veterans’ Affairs)
9. H.Res. 1098 - Supporting the goals and ideals of the Year of the American Veteran (Rep. Filner – Veterans’ Affairs)
10. H.Res. 1231 - Supporting the goals and ideals of Vietnam Veterans Day and calling on the American people to recognize such a day (Rep. Shuler – Veterans’ Affairs)
11. H.R. 2245 - To designate the Department of Veterans Affairs outpatient clinic in Wenatchee, Washington, as the Elwood "Bud" Link Department of Veterans Affairs Outpatient Clinic (Rep. Hastings (WA) – Veterans’ Affairs)
12. H.R. 4264 - To name the Department of Veterans Affairs spinal cord injury center in Tampa, Florida, as the "Michael Bilirakis Department of Veterans Affairs Spinal Cord Injury Center" (Rep. Miller (FL) – Veterans’ Affairs)
13. H.R. 4289 - To name the Department of Veterans Affairs outpatient clinic in Ponce, Puerto Rico, as the "Euripides Rubio Department of Veterans Affairs Outpatient Clinic" (Rep. Fortuno – Veterans’ Affairs)
14. H.R. 4918 - To name the Department of Veterans Affairs medical center in Miami, Florida, as the "Bruce W. Carter Department of Veterans Affairs Medical Center" (Rep. Ros-Lehtinen– Veterans’ Affairs)
15. H.Res. 1291 - Expressing gratitude for the contributions of the American GI Forum on its 60th anniversary (Rep. Rodriguez – Veterans’ Affairs)
16. H.Res. 1271 - Recognizing National Homeownership Month and the importance of homeownership in the United States (Rep. Gary Miller (CA) – Financial Services)
17. H.R. 6312 - To advance credit union efforts to promote economic growth, modify credit union regulatory standards and reduce burdens, to provide regulatory relief and improve productivity for insured depository institutions, and for other purposes (Rep. Kanjorski/Rep. Moore (KS) – Financial Services)
18. H.Con.Res. 370 - Expressing support for designation of September 2008 as "Gospel Music Heritage Month" and honoring gospel music for its valuable and longstanding contributions to the culture of the United States (Rep. Sheila Jackson–Lee – Oversight and Government Reform)
19. H.Res. 1283 - Expressing heartfelt sympathy for the victims and their families following the tornado that hit Little Sioux, Iowa, on June 11, 2008 (Rep. Terry (NE) – Oversight and Government Reform)
20. H.Con.Res. 195 - Expressing the sense of the Congress that a National Dysphagia Awareness Month should be established (Rep. Wamp – Oversight and Government Reform)
21. H.Res. 970 - Expressing support for designation of June 30 as "National Corvette Day (Rep. Shimkus – Oversight and Government Reform)
22. H.Con.Res. 365 – Honoring the life of Robert Mondavi (Rep. Thompson (CA) – Oversight and Government Reform)
23. H.R. 5687 - The Federal Advisory Committee Act Amendments of 2008 (Rep. Clay – Oversight and Government Reform)

H.R. 5876 – Stop Child Abuse in Residential Programs for Teens (Rep. George Miller - Education and Labor) (Complete Consideration)

Pending Amendments:

• George Miller/McKeon Amendment
• Shea-Porter Amendment

Kirk Motion to Instruct Conferees on H.R. 4040 - The Consumer Product Safety Modernization Act of 2007 (Rep. Rush – Energy and Commerce)

Postponed Suspension Vote (1)

1. H.R. 3546 - To authorize the Edward Byrne Memorial Justice Assistance Grant Program at fiscal year 2006 levels through 2012 (Rep. Johnson (GA) – Judiciary)

In the Senate:

10:00am
Resume consideration of the House message to accompany H.R.3221, the Housing Reform legislation for up to one hour, equally divided and controlled.

10:30am filing deadline for amendments to Dodd-Shelby Substitute amendment #4983 with respect to the H.R.3221, Housing.

12:30 - 2:15pm Recess for the weekly caucus luncheons.
Votes:
Approximately 11:00am Roll Call Vote on the motion to concur in the House amendment with the Dodd-Shelby substitute amendment #4893: .

What about FISA and the Iraq supplemental? Expected on Thursday or Friday, possibly on the same day. FISA may take a circuitous route, with a cloturevote on the motion to proceed (we'll call it "MTP"), if necessary, on Wednesday, and then debate on the actual FISA bill to follow on Thursday.

Bonus procedure quiz!

Sometimes after debate on a bill is concluded, the House will postpone a vote on it until some later time. Under what rule may those votes -- such as the vote on H.R. 3546, above -- be postponed?

Answer: Rule XX, clause 8.

Who cares? Different question. But now if you find yourself watching C-SPAN on a Monday morning during consideration of suspension bills, and you hear a vote called, and the chair say, "Pursuant to clause 8 of Rule XX and the chair's prior announcement, further proceedings on this motion will be postponed," you'll say, "Hey, I know good old clause 8 of Rule XX!"

And your significant other will leave you.

"The chair's prior announcement," by the way, would have been an announcement at the beginning of the day's legislative business of the intention to invoke clause 8 of Rule XX. In case you were wondering.

Another week that starts with a parade of suspension bills. This is not unusual, by the way. The schedule starts to get a little heavy with them towards the end of a session, though, and we're getting to that point with the August recess just weeks away, and the campaign trail looming.

So Monday starts with an exciting array of suspensions, kicking the work day off at 12:30 -- also not unusual for the House. Remember, everybody's flying in from their home districts after the weekend, so starting work at 12:30 isn't the lackadaisical schedule it appears to be. Unlimited one minutes and other morning business (i.e., talking about anything you want to) takes up the early afternoon, then debate -- such as it is -- begins on 12 suspension bills at 2:00, with votes on those bills postponed (pursuant to clause 8 of Rule XX) until 6:30.

Tuesday's still got 22 more suspensions on the slate.

From late Tuesday, when they've dispensed with the suspensions, work begins on bills subject to rules:

• H.R. 5876 - Stop Child Abuse in Residential Programs for Teens
• H.R. 6275 - The Alternative Minimum Tax Relief Act of 2008
• H.R. 3195 - ADA Restoration Act
• Two Native American land claims bills -- H.R. 4115 and H.R. 2176 -- dealing with claims of the Sault Ste. Marie Tribe of Chippewa Indians and the Bay Mills Indian Community, respectively
• H.R. 6052 - The Saving Energy Through Public Transportation Act of 2008

On the Senate side, work begins at 3:00 today, with no votes expected. Work continues on H.R. 3221, the American Housing Rescue and Foreclosure Prevention Act of 2008, last punted back to the Senate in mid-May.

No floor action is scheduled yet on the supplemental or on FISA, but it's expected early this week, with Congress set to recess after Friday's session for a one-week district work period for the July 4th holiday.

Democrats speaking today in favor of the FISA bill keep coming back to the "exclusivity" provisions in the bill:

Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.

Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United Staes Code, shall constitute an additional exclusive means for the purpose of subsection (a).

These speakers are adamant that these provisions mean no president will ever be able to ignore the established surveillance laws ever again.

So here's the question: What if someone does, anyway?

Here's the "exclusivity" provision of the old FISA law, still on the books when George W. Bush instituted his illegal programs:

[P]rocedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

The "administration's" lawyers -- people like John Yoo -- advised Bush that the president had the "inherent power" to ignore the FISA provisions in the name of "national security." So he did it. Despite the existence of the exclusivity provisions.

Now, we've got a new exclusivity provision that also purports to prevent the president from simply ignoring the law.

But is there really a way to write a law in a way that prevents someone from ignoring it? Of course not. If you ignore the law, you ignore the provisions preventing you from ignoring it. That, it turns out, is actually what "ignoring" means.

Now, there are ways to write laws so that there are penalties outlined for ignoring them. But this bill doesn't do that. And I'm sure that's just fine, since really no one could foresee a president ignoring surveillance laws, right?

No, there's no way to prevent a president who's willing to believe he's got the "inherent power" to ignore the law from doing so. There's only the opportunity to enforce that law against such a president. The "checks and balances" we all learned about in school.

Unfortunately, we all know that particular check has bounced for insufficient funds votes.

If there's one thing the 110th Congress has taught us, it's that this bill can only be the "exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted" to the extent that the Congress itself insists it is.

Insists. Using all their powers. Every time. All the time. Forever.

How much you wanna bet?

UPDATE: And Hoyer closes his speech with the same ridiculous argument. What a capper.

UPDATE 2: The House Majority opposes the bill by a margin of 105-128. The bill passes.

UPDATE 3: And the great payoff for this week's "bipartisan compromises?" Republican one minute speeches blaming Democrats for high gas prices.

Despite Democrats voting nearly two-to-one against a blank check for the Iraq war, oh, and also despite their holding the majority in the United States House of Representatives, another $150 billion-plus has been appropriated for the war that would pay for itself, and give us 50 cents-a-gallon gas.

UPDATE: Dems go 230-3 for the domestic spending portion of the bill. And happily, the passage of the bill honoring Chi Chi Rodriguez went smoothly, as did yesterday's bill designating April 2008 National Public Radio Appreciation Month. Not a typo. April 2008.

UPDATE 2: War funding roll call vote here.

The House currently stands in recess, subject to the call of the chair. That means nothing's going on on the House floor right now, and that's the case because the Rules committee is meeting to work out the procedure under which the Iraq war supplemental will come to the floor later this afternoon.

It's already late afternoon on Thursday, with just one more week in session for the Congress before it breaks for its July 4th recess. Still pending are the supplemental and the FISA bill, two enormously important pieces of legislation that the Congress definitely wants to dispense with before it breaks.

That puts us in a similar position to last December, when Senator Chris Dodd's filibuster of the FISA bill backed the Senate up against the recess wall, and the bill was eventually pulled so that they could finish up other pressing business before their recess.

Under ordinary circumstances, the deals that have been cut on these two bills would pretty much make them a done deal, especially in the House where there's very little capacity to significantly delay a bill for which there is the support of a determined majority. In the Senate, of course, a 60-vote majority can overcome even the famed filibuster power.

But sometimes, all you really need is a delay, and that is something that an equally determined minority -- even a very small one -- can almost always provide, if they're willing to endure varying degrees of the scorn of their colleagues.

In the House, the ground rules of the debate will be set by the Rules committee, as usual. But within the usual procedure used by the chair to put the Rules committee dictates in place are often numerous opportunities to cause delay, none of which are enough by themselves to significantly slow down important legislation, but which together can buy an hour here, an hour there, and pretty soon, you're talking about real time.

For instance, the House is asked for unanimous consent for various procedural and ministerial functions dozens of times during any given day. Most of them are merely requests routinely granted out of courtesy to colleagues, such as unanimous consent requests to insert written material in the record. But others, though equally routine, are requests for things like dispensing with the reading of bills, which can sometimes take hours all by itself. That's a huge waste of time (even though most Members haven't read the bills), and it's routinely dispensed with... unless somebody's pissed off. And then they utter the magic words, "I object." And then we either sit through hours of bill reading, or have to call everyone out of their meetings and onto the floor for a vote authorizing the dispensation of the reading, or whatever it is that's been objected to.

With two highly controversial bills coming down the pike in two days in the House, and the Senate poised to take them up immediately after, the serial objections of Members who want to slow things down can really add a significant burden to the work of passing them. What's more, you don't even really have to object in the end (though you might force a vote if you do, and that's 15 minutes by itself right there). Instead, you can rise and "reserve the right to object," and sometimes go on at some length about why you're thinking of objecting, casting about for some sort of concession or accommodation from the other side before withdrawing or finally asserting your objection. And if you're not the only one with potential objections, well, this can go on for some time.

But in end, House rules make it nearly impossible to hold matters up for much more than a few hours or a day. Twice that, though, if you've got two bills facing the same threat.

And that brings us to the Senate, where the power of a very small minority to delay is considerably greater, though also limited. But if the supplemental were delayed for a day in the House, thus delaying the FISA bill for another day in the House, you'd find FISA not reaching the Senate until early next week -- unless the Senators gave up their weekend to get to it, which is a distinct possibility.

But if FISA and/or the supplemental didn't get to the Senate until next week, and one Senator attempted to "hold" the bill, the bill's supporters would make a motion to proceed, which can overcome the "hold" (which is itself just another form of objecting to unanimous consent). The motion to proceed, however, is itself subject to a filibuster. And if a Senator did in fact begin a filibuster of the motion to proceed, although a cloturemotion could shut him or her down, the Senate by rule must wait two days before voting on cloture, and even if cloture is invoked, it still allows for 30 additional hours of debate before calling things to an end. That's more than three days that it would take just to get to a vote on the motion to proceed.

And if that weren't enough, the underlying bill may be subject to a filibuster as well, though it's possible that the particular procedures used to move these bill could conceivably preclude it. But if not, you'd be looking at another three days. That puts them right up against their recess.

Now, if that were to happen with both the supplemental and FISA (and no, I haven't heard of any combination of Senators who were willing to do that to either one, let alone both), then you could find yourself approaching the end of next week with neither bill complete, and that recess looming. Could they just wait until after the recess and take it up then? Sure. So what's the value of that?

The only value there is that from early July through early August is the last five legislative weeks before the Congress breaks for the national party conventions. The last chance for the parties to frame their issues going into the big show. And the last chance for Barack Obama to be a Senator.

At this point, Barack Obama is the nominal leader of the Democratic Party. He's opposed to retroactive immunity for the telecoms, and everyone who was opposed to it before this so-called "deal" was struck is, you'll notice, still opposed to it, though some have opted to throw up their hands and pretend they're being forced to vote on it.

But a word from Barack Obama at this point would have the potential to change everything. A word from him saying that this "deal" stands in direct contradiction to the agenda he's bringing to the presidential race would weigh heavily on Majority Leader Harry Reid, who's really only getting heavy pressure from Intelligence committee chairman Jay Rockefeller on this, and thus is likely to be inclined (despite his own opposition to immunity) to grease that particular squeaky wheel. There could be a counterbalance from Judiciary chairman Pat Leahy, but so far, we haven't heard that squeak. He's issued a statement saying he opposes the "deal," but he's not pushing the way Rockefeller is pushing. And though Reid is the Majority Leader, that's as much a service position as it is a leadership position. His membership just isn't telling him no. The voices that are speaking with conviction are the voices saying yes.

Barack Obama, though, is the heavyweight in the arena right now, and his voice, properly applied, could be worth a dozen chairmen. But he's not using it, and in fact, there's no guarantee he ever will.

But get us into next week, pitch a fight in the Senate, back the Congress up against the recess wall, and call in the biggest gun we have, and we just might have that snowflake's chance in the hot place.

UPDATE: And here comes the rule for the supplemental, on the floor now.

The first report was from the AP, but since they don't like bloggers to use them or link to them, we'll just talk about the facts of their story without burdening them with the traffic. We'll send it to other, friendlier and more web-savvy sources instead.

The news: A deal has been struck on the House side to move an Iraq funding bill.

Details are still emerging, but initial reports (from that news source that doesn't like links) said only that an agreement had been reached, and that the package would include approximately $165 billion in funding for military operations, plus the Webb "GI bill" provisions, Midwest flood relief, and an unemployment benefits extension.

As time -- here measured in mere minutes -- passed, new details emerged. A second AP report that they also don't want links to hinted that Bush was backing away from his earlier threats to veto war funding that was accompanied by significant restrictions on its use, and unemployment benefits that went to people who had worked less than 20 weeks out of the previous year. Bush had also ruled out a provision Blue Dogs had insisted on to pay for the GI bill, that being a 1/2% surtax on top-earning taxpayers.

That seemed rather curious, until a report in The Hill cleared it up:

The compromise bill will include about $165 billion in funding for the Iraq war with no conditions, such as banning torture or blocking a "status of forces agreement" between the Bush administration and the Iraqi government.

It will include a new program, called the "new GI Bill," to pay the college tuition of Iraq and Afghan war veterans, which will be transferable to family members. The cost of the program will be added to the federal deficit, because there will be no offsetting tax increase.

It will extend unemployment benefits by three months, but will require recipients to have worked at least 20 weeks, a requirement Democrats had sought to shorten.

Mmmm, yeah. That smells like a deal to me! In exchange for agreeing to accept $57 billion more for the Iraq war, Bush was willing to allow Democrats to drop their demands for a ban on permanent bases, torture and the SOFA and their demands on expanding eligibility for unemployment benefits. It really must be said that he's truly a generous man.

Should be an interesting vote, if both the Blue Dogs who said they wouldn't vote for GI bill provisions that weren't budget neutral and the 70 other Members who said they wouldn't vote for war funding that didn't have withdrawal language all stick to their guns.<sup>*


*</sup> Note to McCain campaign: This is not a statement on firearms policy.

UPDATE: The text of the rule they're going to use isn't available yet, but here's how that "interesting vote" is going to be managed. First, the House will have to pass H. Res. 1281, reported from the Rules committee yesterday, which:

Waives clause 6(a) of rule XIII (requiring a two-thirds vote to consider a rule on the same day it is reported from the Rules Committee) against any resolution reported from the Rules Committee on the legislative day of June 19, 2008, providing for consideration or disposition of a measure making supplemental appropriations for the fiscal year ending September 30, 2008

Then they're going to have to cobble together a procedure that waives PAYGO rules so they can shoehorn in the GI bill provisions, and allows for separate votes on the various provisions -- the war money, the GI bill, the unemployment benefits, etc. -- and then have a final vote on a package that includes whatever provisions get a majority along the way.

The end result will be that the progressives can vote against the war money but for the rest of the stuff, the Blue Dogs can vote against the GI bill but for the rest of the stuff, thereby producing a different majority for each of the provisions, and then everybody can throw up their hands and vote for the final package, which will represent "the best we could do despite my opposition to provision X, Y or Z."

Happy C-SPAN viewing, everybody!