Hitting The Insurance Industry Where It Hurts

John Conyers and some allies on the House Judiciary Committee have come up with a fabulous way to get the insurance industry in line - by threatening to remove their anti-trust exemption.

Many people don't know that the insurance industry, under the McCarran-Ferguson Act of 1945, has a broad anti-trust exemption that facilitates regional monopolies. The Act allows states to regulate the insurance business instead of the federal government, but also allows that, as long as the state regulates the industry, federal anti-trust laws would not apply.

As a result of this exemption, states have seen markets for health insurance where one or two companies predominate. In the state of Maine, Wellpoint controls 71% of the market. In North Dakota, Blue Cross controls 90%. Using the Herfindahl/Hirschman Index, a metric for market concentration, a 2007 study by the AMA found almost every health insurance market in the United States is highly concentrated.

This edition of the study analyzed 313 MSAs. This compares with 292 metropolitan areas in the 2005 study, 84 in the 2003 study, 70 in the 2002 study, and 40 in the 2001 study.

In terms of market concentration (HHI), the study found the following:

In the combined HMO/PPO product market, 96 percent (299) of the MSAs are highly concentrated (HHI>1,800), applying the 1997 Merger Guidelines.
In the HMO product market, 99 percent (309) of the MSAs are highly concentrated (HHI>1,800), applying the 1997 Merger Guidelines.
In the PPO product market, 100 percent (313) of the MSAs are highly concentrated (HHI>1,800), applying the 1997 Merger Guidelines.

Here's the AMA study. Paul Rosenberg has a lot more on this.

The point is that the concentration of the health insurance market among regional monopolies leads to higher costs for consumers, almost by definition. What the legislation by Conyers (D-MI), Hank Johnson (D-GA) and Diana DeGette (D-CO) would do is end that anti-trust exemption for health insurers, allowing for enforcement in all of these highly concentrated markets. The Senate has companion legislation:

“This legislation would specifically prohibit price fixing, bid rigging, and market allocation in the health insurance industry,” said Conyers. “These pernicious practices are detrimental to competition and result in higher prices for consumers. Conduct that is unlawful throughout the country should not be allowed for insurance companies under antitrust exemption. The House Judiciary Committee held extensive hearings on the effects of the insurance industry’s antitrust exemption throughout the 1980s and early 1990s. It became clear then that policyholders and the economy in general would benefit from eliminating this exemption.

“The legislation we introduced today is intended to root out unlawful activity in an industry grown complacent by decades of protection from antitrust oversight. In doing so, we aim to make health insurance more affordable to more Americans. I want to thank my friend Senator Leahy for his leadership on the bill and for working with the House on this joint introduction.”

Many of the actions taken by the insurance industry over the years simply violate federal law. Repealing their anti-trust exemption would force the industry to end their criminal ways or face punishment. As a companion to insurance regulations designed to lower prices for consumers, but perhaps without the kind of enforcement necessary to maintain it, I couldn't think of anything better. And if nothing else, this legislation is a powerful whip to keep the industry in line as they try to extract more perks from the health care bill. Combine this with the multiple investigations into industry practices from Dennis Kucinich, Henry Waxman and others, and you have real pressure on the industry for the first time in a while.

Good for John Conyers.

Are We Calling This Victory?

You all probably know by now that Karl Rove was deposed in front of House Judiciary Committee staffers the other day, about the US Attorneys scandal and the prosecution of former Alabama Governor Don Siegelman. But what you don't know, and what I don't know, and what nobody knows, is why. At some level, I'm glad that Congress was able to assert a modicum of its authority and at least get Rove (and apparently, Harriet Miers back in June) on the record with a set of questions. But to what end? Certainly not one of precedent, and not an investigative one as well, it seems.

The White House's foot-dragging may have inflicted some measure of political damage. But in terms of the legal repercussions, by coming to a deal while the case was still pending in an appeals court, the Bushies have largely succeeded in one of their goals: ensuring that no clear precedent has been established limiting the president's power to claim executive privilege in such cases. And the Obama White House's role in helping to secure the deal for Rove's testimony suggests that's an outcome they wanted too.

As for the underlying issue -- the quest to learn what really happened in the firings and the Siegelman prosecution, things remain murky at best. There are conflicting reports about whether Rove will sit for another day of testimony. It's also unclear when and how the committee will decide which parts of Rove's testimony, if any, can be made public, and in what form the probe's findings will be released.

Siegelman, quoted later in the piece, thinks John Conyers will continue to investigate until he finds the truth. He must be an eternal optimist. This has reached the point where Republicans can demagogue with the words "old news," and that was precisely the Bush White House's goal. Even if House Judiciary eventually cobbles together a report and makes recommendations, the chances of the Justice Department taking whatever recommendations concern accountability measures are, in a word, remote. They haven't even moved to set aside the verdict on Siegelman, though I did notice that the Justice Department whistleblower in the case has been fired. At least someone is held to account, right?

Update On The Fight To Impeach Jay Bybee And Restore Accountability

Yesterday I kicked off an action item, asking people to call and write the members of the House Judiciary Committee or their California members of Congress, informing them that the largest state Democratic Party in the country has voted to support a Congressional inquiry into Jay Bybee and other lawyers for their actions justifying torture, and that they ought to carry this through. Many people have already contacted their members of Congress and you should do the same. One thing that would help is to get them on the record. If you receive any constituent correspondence from your Congressperson about this issue, please forward it to me at david-dot-dayen-at-gmail-dot-com. We need to build a list of who supports accountability and who does not, of who in the California delegation agrees with their own party and who does not. We're starting to get some on-the-record statements, like this nonsense from Illinois Republican Donald Manzullo, who admits that waterboarding doesn't work, who calls it "more torture than not," as if there's a torture continuum of some sort (the fact that CIA interrogators had to add a tracheotomy kit to the proceedings should tell you what they were up to with waterboarding), but who then says that "no laws were broken" (which is patently false), and that, even if there were, nobody should be prosecuted because the whole thing would get "messy."

MANZULLO: Because then you are going to have to go back and you’re going to have to go through every single interrogation and every single memo and the whole purpose of this is to relive again the fact that somebody made the decision to allow this.

We need on-the-record statements like this for every California Democrat, preferably in writing or on tape.

In other news, John Conyers and Jerrold Nadler announced their support to Attorney General Eric Holder for a special counsel to investigate and prosecute anyone involved in the decision-making process in the Bush Administration that led to illegal torture of detainees. That letter is here.

Finally, I will be on Angie Coiro's show on Green960 AM in San Francisco in the 7:00 hour to talk about the CDP resolution, the need for an inquiry and impeachment of Jay Bybee, and the fight to restore the rule of law with respect to torture. Tune in if you can.

...here's that list of members of the House Judiciary Committee to contact:

House Judiciary Committee
John Conyers, Michigan	Howard Berman, California
Rick Boucher, Virginia	Jerrold Nadler, New York
Robert C. Scott, Virginia	Mel Watt, North Carolina
Zoe Lofgren, California	Sheila Jackson-Lee, Texas
Maxine Waters, California	Bill Delahunt, Massachusetts
Robert Wexler, Florida	Steve Cohen, Tennessee
Hank Johnson, Georgia	Pedro Pierluisi, Puerto Rico
Luis Gutierrez, Illinois	Brad Sherman, California
Tammy Baldwin, Wisconsin	Charles Gonzalez, Texas
Anthony Weiner, New York	Adam Schiff, California
Linda Sánchez, California	Debbie Wasserman Schultz, Fl
Dan Maffei, New York	Lamar S. Smith, Texas
Jim Sensenbrenner, Wisconsin	Howard Coble, North Carolina
Elton Gallegly, California	Bob Goodlatte, Virginia
Dan Lungren, California	Darrell Issa, California
Randy Forbes, Virginia	Steve King, Iowa
Trent Franks, Arizona	Louie Gohmert, Texas<
Jim Jordan, Ohio	Ted Poe, Texas
Jason Chaffetz, Utah	Tom Rooney, Florida
Gregg Harper, Mississippi

Who Wrote This?

In the past, the Congress has moved expeditiously to approve funding for our Armed Forces. I urge the Congress to do so once more. I also urge the Congress to focus on the needs of our troops and our national security, and not to use the supplemental to pursue unnecessary spending. I want the Congress to send me a focused bill, and to do so quickly. When this request returns to me as legislation ready to be signed, it should remain focused on our security.

...

If you guessed former anti-war activist Barack Obama, ding ding ding you get a cookie!

Elsewhere in this letter, Obama addresses why this supplemental request is needed at all, considering his intention to put the wars on budget.

As I noted when first I introduced my budget in February, this is the last planned war supplemental. Since September 2001, the Congress has passed 17 separate emergency funding bills totaling $822.1 billion for the wars in Iraq and Afghanistan. After 7 years of war, the American people deserve an honest accounting of the cost of our involvement in our ongoing military operations.

We must break that recent tradition and include future military costs in the regular budget so that we have an honest, more accurate, and fiscally responsible estimate of Federal spending. And we should not label military costs as emergency funds so as to avoid our responsibility to abide by the spending limitations set forth by the Congress. After years of budget gimmicks and wasteful spending, it is time to end the era of irresponsibility in Washington. In this request, we are honest about the costs we will bear as a Nation, and we will use our resources wisely and responsibly to meet the threats of our time and keep our Nation safe and secure.

Fair enough, and I suppose this couldn't have been readied for the omnibus spending bill because the Afghanistan policy review was not completed in time.

However, there is a belligerent tone in this letter that is completely reminiscent of George Bush's snotty rhetoric about "clean bills" and how the Congress has a responsibility to give him exactly what he asks for. And at least a few progressives aren't buying it:

President Barack Obama plans to request new funding from Congress for the conflicts in Iraq and Afghanistan, but he risks a backlash from antiwar lawmakers.

Mr. Obama is expected to seek congressional approval of $75.5 billion for the wars, perhaps as soon as Thursday. The issue is already raising tensions on Capitol Hill, especially among liberals who are sympathetic to the president's broader agenda but voice concerns about his timeline for withdrawal of troops from Iraq and his plans to beef up forces in Afghanistan.

"I can't imagine any way I'd vote for it," said Rep. Lynn Woolsey, a California Democrat and leader in the 77-member congressional Progressive Caucus. It would be her first major break with this White House.

Ms. Woolsey fears the president's plan for Iraq would leave behind a big occupation force. She is also concerned about the planned escalation in Afghanistan. "I don't think we should be going there," she said.

Similar sentiments echo across the House. Rep. Jim McGovern (D., Mass.) said he fears Afghanistan could become a quagmire. "I just have this sinking feeling that we're getting deeper and deeper into a war that has no end," he said.

Rep. John Conyers (D., Mich.) dismissed Mr. Obama's plans as "embarrassingly naive," and suggested that the president is being led astray by those around him. "He's the smartest man in American politics today," Rep. Conyers said. "But he occasionally gets bad advice and makes mistakes. This is one of those instances."

Hopefully these urgent questions and concerns get addressed instead of just rubber-stamping this funding. Congress has a role to play. Shouldn't they inquire about the endemic corruption in the Afghan government and police force, and how we can possibly trust the same people to bring economic development to the nation? Can they ask about the impact of Predator drone strikes on recruitment of the Pakistani Taliban and stability of the Pakistani government? Can they request an exit strategy?

Or will there be more my-way-or-the-highway talk?

Rove Faces The Music... In Private

After years of wrangling, the House Judiciary Committee will finally receive testimony from Karl Rove and Harriet Miers about their roles in the US Attorneys scandal. Here's the statement:

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited. (emphasis mine)

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

I figure that the Obama Justice Department was going to release the documents anyway, so Rove and Miers could either explain them or not. And the limiting of privilege is good. But I'm a little dismayed that this is all happening in private. It's unclear whether or not the public will have access to the transcriptions generated, but my guess is no.

Here's John Conyers' statement:

“I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”

Symbolically, this is very important, agreed. Whether it means that the truth will actually be uncovered about who authorized the firings of US Attorneys is less clear.

Rep. Conyers On Why We Need Cram-Down

Yesterday, Nancy Pelosi announced that a housing bill which could come up for a vote this week would include the "cram-down" provision, which would allow bankruptcy judges to modify the terms of mortgages for borrowers on their primary residence (currently judges have the ability to do this on secondary residences). This is an important provision, which most economists believe will be the best tool homeowners can have for them to stay in their homes, and for lenders to agree to loan modifications. The banksters hate this idea, mainly because they know it would blow the whistle on their consistent violations of the spirit and the letter of the Truth In Lending Law, in their mania to lock as many people into mortgages as possible without regard for ability to pay, so they could sell those mortgages on as securities, and so on and so forth. This ultimately is the fault of the lender, who are clearly the irresponsible ones in the whole scenario.

Along with my friends at Brave New Films, I talked to Rep. John Conyers, the chair of the House Judiciary Committee and the author of HR 200, the cram-down bill, about this provision and why it's needed at this time.



We know that the housing bubble bursting was a major, if not the major, cause of the current financial crisis. And we have as many as 10 million homeowners at risk in the near future for foreclosure, or for being underwater on their homes as prices crash. With securitization slicing and dicing mortgages into tiny parts and selling them all over the world, it's nearly impossible for homeowners to bargain with their lender - it's hard for them to know who even owns the property. And while it costs lenders to have a home revert back to them in foreclosure, both on the defaulted mortgage and on continued upkeep of the house until resale, there are perverse incentives for them not to enter agreements with homeowners that will allow them to stay in their homes. Barack Obama's plan seeks to incentivize in the other direction to get loans modified, but only cram-down will really bring the lenders to the table. As Rep. Conyers says, this "levels the playing field" and gives homeowners a tool to bargain with the lenders. Currently they have none. While Obama's plan holds open the option for cram-down, and he has been supportive of the change in bankruptcy law, we really need legislation to define this specifically.

Mind you, practically every other asset that anyone who goes into bankruptcy has - second and third homes, yachts, cars, you name it - is eligible for a rewriting of terms by the bankruptcy judge. It's only the primary residence that is excluded. This is perverse and seeks to only benefit the wealthy. Far from encouraging bankruptcy among the poor, this bill would encourage the bankers to help them avoid it. As Conyers said:

The very people that prevented the bankruptcy judge from having this power in the first place are the ones now that are most seriously resisting us giving it to them, even while we're in a national crisis. You know, it's amazing how greed and self-interest makes people forget about the fact that we're in a recession that could get much worse. It could be a depression. And by the way, this helps not just the poor borrower who may be locked up or laid off or their job has moved away or anything may have happened, but what we're doing now is that we're saying the judge has the authority to help everybody. You know, the more houses that are put into foreclosure, the more run-down the neighborhoods become, and also the more property of everybody is involved. This provision is to keep you from going into bankruptcy.

This is a classic political argument, as Mike Lux argues, between those "rugged individualists" who think everybody should be out for themselves (except when their investment firms and giant insurance companies are about to go under), and those who think we are linked and we have a responsibility to our brothers and sisters, as surely as they do to us. Forcing everybody off a foreclosure cliff makes no sense to either those newly homeless or the property owners who will see their values plummet. And contra the Santelli revolution, the public basically gets this.

Rove A No-Show

I had a tip that Karl Rove was going to show up at a House Judiciary Committee hearing yesterday, but I held off on reporting it because I got a qualified "maybe." Turns out I was right to hesitate:

So today was the day that Karl Rove was supposed to appear before the House Judiciary committee to testify about the US Attorney firings. And of course, Rove didn't show.

That wasn't a surprise. After getting the deadline pushed back, Rove had already publicly indicated he didn't plan on being there, citing President Bush's claim of executive privilege. Rove's lawyer had then asked for a second postponement, a request that Judiciary chair John Conyers had declined to grant.

So Rove is in violation of an issued subpoena. Yet the Obama Administration has until March 4 to deliver an Appeals Court brief over what to do with the sought testimony of Harriet Miers and Josh Bolten. Emptywheel wonders about the connection between the two:

Now, I have no reason (besides noting the coincident dates) to believe that there's a connection between the additional week extension on the Appeals Court brief and any response to Rove's latest contempt for an HJC subpoena.

But I do note that if Rove were immediately held in contempt by HJC and if the House were to act with any dispatch to vote on contempt, Rove might well be in contempt by the time Obama briefs the Appeals Court a week from Wednesday. Mind you, things like that don't usually happen so quickly in the House. But it would make the discussion about the Appeal more interesting.

I think the White House is trying to make a deal acceptable to all sides. It would be good for John Conyers and HJC to force their hands. Eventually, we have to have a framework where executive privilege isn't used as a way to evade accountability.

Psst... Karl

John Conyers would like to have a chat.

Last week, we talked to a number of experts who said that President Obama's executive order on presidential records might well affect the ongoing effort to get information about the Bush White House's role in the US Attorney firings.

And it looks like John Conyers is of the same mind. The House Judiciary chair this afternoon issued a subpoena to Karl Rove to testify before the committee on February 2.

Rove had claimed immunity from an earlier Conyers-issued subpoena, citing executive privilege. (The case is currently on appeal.) As a press release accompanying today's subpoena points out, "[t]hat "absolute immunity" position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as 'completely misguided.'"

Rove's testimony wouldn't necessarily be covered by Obama's executive order, but the principle is basically the same. Obama has argued against blanket coverages of executive privilege, which Rove is operating under.

Rove only has a week to comply. Stay tuned...

House Whip Getting Whip Counted

So I guess Jim Clyburn, the House Majority Whip, would rather go slow with an incremental approach to health care reform. None of this is new - Clyburn first said this right after the election on Meet The Press, and I question just how influential he is on this issue. Nevertheless, what's interesting to me is the speed with which progressive groups are confronting Clyburn over his comments.

One of the leading health care reform groups in Washington on Monday issued a strong rebuttal to House Democratic Whip James Clyburn for suggesting a comprehensive health care reform bill would not pass Congress in 2009.

Health Care For America Now's National Campaign Manager Richard Kirsch wrote:

"We hope that Congressman Clyburn will join with President Obama and the 178 Members of the 111th Congress, including a great majority of the House Leadership, who have all stated that they want to see comprehensive health care reform passed in 2009. Now is not the time to take small steps to solve big problems. The Health Care for America Now (HCAN) statement signed by President Obama and Members of Congress explicitly states support for an enactment of quality, affordable health care for all in 2009."

The statement, notable for its direct targeting of Clyburn, comes after the South Carolina Democrat said over the weekend that an incremental approach towards health care reform would be better "than to go out and just bite something you can't chew."

HCAN is asking South Carolinians to call Clyburn and urge him to reconsider his comments. His DC office is at (202) 225-3315.

It's important that there is a group ready to mobilize as soon as any Democrat in the leadership gets cold feet or attempts to create some wiggle room on comprehensive health care reform. This happened within a day, and it's something that almost never happened in 1994. Constituent pressure in the direction of a progressive solution has been sorely needed on this issue, and HCAN is fulfilling its role.

Meanwhile, John Conyers is dropping HR 676 today. Backers of the plan need to take that lesson from HCAN - bottom-up pressure is crucial.

Conyers Needs A Better Word Processing Program

I'm not getting why John Conyers is expending the energy to attack Sanjay Gupta, whose role as surgeon general would be peripheral at best. Conyers is defending his single-payer bill which Gupta indirectly but unfairly swiped at in his infamous dust-up with Michael Moore. But I'm not sure if anyone believes that Gupta would influence policy rather than being a public face for it. And Conyers' argument that Gupta lacks the requisite experience to handle the National Health Service Corps seems petty. If you're going to go after Gupta, there are questions of conflict of interest that may be pretty substantial. I'd start there.

Meanwhile, if you do step out and write a Dear Colleague letter of this nature, use the spell-check, would be my advice.

Guinea Pig

So Mary Beth Buchanan has been drafted to manufacture the first bogus scandal of the Obama Administration.

Mary Beth Buchanan was appointed by President Bush to serve as U.S. attorney in Pittsburgh in Sept. 2001. Buchanan has held several significant posts within the Bush/Ashcroft/Gonzales Justice Department, most notably serving as director the Executive Office for U.S. Attorneys.

Just last month, the Pittsburgh Post-Gazette reported that Buchanan’s reign was expected to end. Indeed, when a new president is elected, U.S. attorneys of both parties generally submit their resignations to make way for the new appointees. But Buchanan has other plans:

Despite a new administration coming into power, U.S. Attorney Mary Beth Buchanan said she plans to stick around.

“It doesn’t serve justice for all the U.S. attorneys to submit their resignations all at one time,” she said yesterday. […]

More than that, she said she would consider working in the Obama administration. She would not discuss what her future might hold beyond the U.S. attorney’s office.

“I am open to considering further service to the United States,” Ms. Buchanan said.

Well, isn't that nice, she's open to it!

Buchanan, by the way, is one of the US Attorneys Bush kept in power because she was doing the bidding that those federal prosecutors who were fired wouldn't do. She has been implicated in politically motivated prosecutions of Pennsylvania Democrats, in particular Cyril Wecht:

...in 2006, Buchanan raised more than a few eyebrows when she went after former Allegheny County Coroner Dr. Cyril Wecht, indicting him on multiple counts of various federal crimes, including theft from an organization that receives federal funds.

What, exactly, did Wecht do? Apparently, his transgressions included the improper use of the coroner's fax machine for private work. There was no evidence "of a bribe or kickback" and no evidence that Wecht traded on a conflict of interest.

But Wecht's a Democrat, and for a U.S. Attorney anxious to impress her superiors in the Bush administration, apparently that was enough.

This week, a jury mulled over Buchanan's case against Wecht. The case ended, at least in the short term, with a hung jury.

Actually, a judge eliminated more than half of the charges and the trial was stayed indefinitely. The case was criticized by Republican attorney general Dick Thornburgh.

Buchanan has very close ties to the Bush Justice Department - she HIRED Monica Goodling. And so she's going to try and hang on as US Attorney. And Obama will likely fire her in favor of his own selection, and then the right will scream bloody murder. The concept that US Attorneys generally resign at the beginning of a new President's term will be completely forgotten, and instead there will be a false equivalence made between this and the US Attorney purge. It's so patently obvious.

Digby writes:

This is a Republican soldier and if Obama attempts to fire her, she will become a martyr to the cause. And she's not alone. They are all over the Justice Department.

When the US Attorney scandal broke, you'll recall that there was a lot of wingnut chatter saying that because Bill Clinton had asked for the resignations of all US Attorney's at the beginning of his term, Bush had a perfect right to fire US Attorneys who refused to do political dirty work. They set the stage for this at the time. It was entirely predictable that the new administration would be held to a completely new standard --- he would not be allowed to fire any US Attorney who had been appointed by Bush for any reason at all or risk being accused of using the Justice department for partisan gain. It's how they roll.

Digby says that Democrats made this tougher by not pursuing the scandal enough, which I don't agree with up to the point of them not filing inherent contempt and jailing Harriet Miers, Josh Bolten and Karl Rove in the Capitol basement. And not only are they are still seeking investigations inside Congress, but the independent prosecutor probe ordered up by Mukasey looks to actually have some teeth, and just yesterday Main Justice reopened the Don Siegelman trial, responding to a dogged effort by John Conyers.

Siegelman, the Democratic former governor of Alabama, was convicted in 2006 on corruption charges. (He is appealing the conviction). The whistleblower, who works in the US Attorney's office in Alabama, has claimed that, during his trial, there were inappropriate contacts between members of the jury and the prosecution, including messages passed by jurors revealing that some jury members had developed a romantic interest in an FBI agent attached to the prosecution team.

A DOJ investigation of the claims, launched after the whistleblower came forward and carried out by two US Attorneys, concluded that no such contacts had occurred. But in a letter to Attorney General Michael Mukasey last month, Rep. John Conyers, whose judiciary committee has been looking into the issue, questioned the thoroughness of that probe, noting that investigators had not contacted the jurors themselves, or the federal marshals who allegedly passed notes between the jurors and the prosecution team.

In the recent court filing -- which responds to a filing made previously by Siegelman's defense lawyers in connection with his appeal -- prosecutors referred to that DOJ investigation, then added in a footnote:

"Out of an abundance of caution, the Department of Justice recently reopened the investigation into this matter in response to concerns raised about the completeness of the investigation ... It remains the case that we are not aware of any improper contacts."

In other words, DOJ appears to agree that Conyers' concerns have merit, and has reopened the investigation into whether inappropriate contacts between jurors and the prosecution team did indeed occur. That could be good news for Siegelman as his lawyers seek to have his conviction thrown out on appeal.

So there may be potential consequences at the margins. But what's important right now is that Buchanan will be made a martyr if she's fired. The right wing and talk radio will make her famous. She'll have her own talk show on Fox within a few months. And it will all be based on a lie - a deliberate lie at that.

This is just the beginning of how the right will try to distract and distort right from the beginning of the Obama Administration, at a time of absolute financial crisis. They are still playing a very partisan game - in fact, there's a credible case to be made that they'd favor a deep recession for a variety of reasons. "The good of the country" isn't going to matter to these people. They are in this for the long haul.

Fighting Back On Voter Suppression

This is welcome news from Jennifer Brunner, the Ohio Secretary of State.

Ohio Secretary of State Jennifer Brunner told the Huffington Post on Thursday that she is ready not only to fight the state's current election law battle in front of the Supreme Court, but is also willing to wage a new fight, if necessary, to make sure hundreds of thousands of new voters are not "forced" onto provisional ballots on election day.

Spurred by revelations that the community organizing group ACORN has submitted many thousands of ineligible voter registration cards in battleground states, Ohio Republicans have been calling for a wholesale comparison of the state's nearly 666,000 new active voters against data collected by the local DMV.

Brunner charged that Republican demands are meant to create confusion at the polls and keep all the ballots from being counted.

Brunner says that, according to the League of Women Voters, there were only four instances of "illegal voting," or the actual casting of an illegitimate ballot, between 2002 and 2006 -- when just under 8 million ballots were cast. As such, she said, ACORN's registration problems are being improperly lumped in with the casting of bad ballots, something she says is not likely to occur no matter how many fraudulent registrations are turned in. "Unfortunately, despite the messaging of certain political parties ... when they bring ACORN into it, they're talking about false voter registration. Seldom does that lead to illegal voting. Mickey Mouse and Jive Turkey don't vote."

ACORN itself has launched a truth-squad site and has released this statement on the news of the ridiculous FBI investigation:

ACORN has not been contacted by any federal law enforcement agencies. Should any investigation be forthcoming, we are confident that we would be exonerated. We have always, and will continue to, work with any inquiry.

It is well established and documented that in 2004 the Bush Administration was involved in a scandal where Bush Administration political appointees, working in concert with the Department of Justice, pressured some U.S. Attorneys, such as David Iglesias, to pursue partisan investigations of ACORN. Given that in the last forty-eight hours we have seen a coordinated attack by the Republican Party, including a conservative think tank in Ohio connected to the well-know voter suppresser and McCain supporter Ken Blackwell, file a frivolous lawsuit that is virtually identical to the lawsuit filed in 2004 that was dismissed for lack of evidence, followed by Senator Voinovich, a supporter of Senator McCain, calling for a Justice Department investigation, followed by Senator McCain's attack in the debate last night, we believe that dirty politics are at work.

ACORN is extremely proud of our work to register 1.3 million new voters this year. Through ACORN's voter registration drive, Americans of all political persuasions and all walks of life are participating in our democracy. Through the course of ACORN'S voter registration drive we hired over 13,000 canvassers most of who worked to the highest standards of accuracy. ACORN has a zero tolerance policy and works closely with local elections officials to get to the bottom of any problems, as we have in this case. But let us be clear - and this is a critical fact: issues related to voter registration are not voter fraud. These are not cases where people are able to vote multiple times. Let us repeat - these are not situations involving actual votes.

John Conyers is on this as well, as is David Iglesias, who you'll recall was fired for refusing to press bullshit investigations like this.

What ACORN needs, and the progressive movement needs, a coordinated media strategy. It's clear that the traditional media has no institutional memory and will continue to unquestioningly pass along these "voter fraud" charges without any meaningful evidence. The goal here is a legitimacy goal, not a law enforcement one. And the media are being willing dupes for this GOP strategy.

Health Care Reform Partners

This happened a few days ago, but John Conyers has teamed up with Health Care For America Now, which is a big deal. Conyers is carrying HR 676, the single-payer health care bill. When HCAN was announced, it was criticized from the left for being a sellout in terms of their principles for a solution to the health care crisis, which was insufficient for single payer advocates. I always considered HCAN as an attack dog against the insurance companies, which would mobilize to try and kill any meaningful change to the health care system. HCAN's policy prescriptions didn't seem to me to be that germane. And now, with Conyers' backing, it seems like he considers it that way too.

"I am proud to join HCAN’s broad progressive campaign to raise awareness about the need for true universal health care reform. The HCAN coalition and I are united by our belief that the current non-system of health care run by profit hungry insurance companies is unsustainable and inhumane. It will take a monumental effort to defeat the entrenched special interests that benefit from the status quo. I remain firmly committed to the passage of my single-payer universal health care bill, H.R. 676, and believe that private insurance will never provide the kind of guaranteed affordable health care America needs. However, I agree with HCAN that a true policy debate in the Congress can only begin when there is broad consensus that the sham reform trumpeted by the industry is off the table."

HR 676 and HCAN are indeed compatible. In fact, spokesman Jacki Scheckner has explicitly said so:

A properly designed single-payer system could meet our principles, but it’s one of many approaches that would meet our principles.

We appreciate the passion and commitment of the single-payer movement and hope they will work with us in opposing the health insurance industry and health care reform plans that benefit the industry by leaving us alone to fend for ourselves in the unregulated, bureaucratic insurance market.

What's most important here is the team concept. Conyers and his allies can work inside the system to get the best bill out of the Congress. HCAN can work outside the system to beat on the insurance companies and win in the court of public opinion. And both of them can make sure that John McCain's principles in health care are never allowed to see the light of day.

• McCain's health care plan will increase taxes on employer-based insurance, and kick 20 million people off the rolls.

• McCain's plan will throw you into the individual market, where the same plan your employer offered will cost $2,000 more, and you can be refused care because you were sick 10 years ago.

• McCain's plan will shift costs onto the sick.

That would be mutually distasteful to anyone who seeks health care reform.

House Judiciary Warns DoJ on Perata Leaks

I've been mulling this around in my head for a few days. Three powerful members of the House Judiciary committee have have sent a letter to the Justice Department calling for an investigation into leaks surrounding the inquiry into State Senate President Pro Tem Don Perata.

No article since November 2004 has explicitly said that any information came from a federal government source. But in a letter to U.S. Atty. Gen. Michael B. Mukasey obtained by The Times on Monday, U.S. Reps. John Conyers Jr., Linda Sanchez and Zoe Lofgren wrote, "We are disturbed and concerned that news story after news story . . . has cited federal law enforcement sources as the basis of information."

The only article specifically mentioned in the July 31 letter was a story in the San Francisco Chronicle. The article cited "sources familiar with the probe," a broad term that could encompass federal agents, defense attorneys and people who have been questioned [...]

On Friday, the day after the congressional letter was sent, a Wall Street Journal article said the investigation into Perata "gained momentum over the past year." The article's details were attributed to anonymous people "close to the defense," who said Perata's longtime political consultant, Sandi Polka, was granted immunity to compel her to answer questions.

(Here's that SF Chron article mentioned in the letter.)

The Perata investigation certainly has dragged on for years, leading to him needing more and more funds to raise in his defense. In particular, the dumping of $250,000 from the California Democratic Party into his legal defense fund raised a lot of eyebrows around these parts. After the initial explanation of "We're the CDP and we can do what we want," a secondary explanation was that the investigation had been politicized and that this was part of the DoJ's efforts to prosecute and delegitimize Democrats. A couple weeks later, out comes this letter, signed by two members of the California delegation. But it's Conyers' participation that makes me believe that this is a real concern. I trust Conyers enough to think that he wouldn't simply badger the DoJ to help out a political problem in California.

Of course, let's look at what the letter is actually alleging. It's not suggesting that the investigation itself is unnecessarily political, but that someone inside the investigation is using the media to disparage Perata. That may well be true, but it doesn't necessarily follow that the whole investigation is a farce.

Let's now look at what this does NOT suggest:

• It in no way excuses the CDP for paying off Perata with $250,000 in the middle of an election year, whether that money was simply laundered through them and earmarked for Perata or not. Based on this SacBee report, it appears Perata is perfectly capable of raising money for himself:

Senate President Pro Tem Don Perata has solicited at least $200,000 this year from political interest groups for a nonprofit foundation that promotes and rallies support for one of his bills.

The arrangement, apparently legal, allows the Senate leader to solicit unlimited funds for his own political agenda without having to detail how the money is spent.

"He may have found a loophole in the Political Reform Act that needs to be closed," said attorney Bob Stern, a co-author of the state's Political Reform Act who now runs the Center for Governmental Studies in Los Angeles.

Which leads me to point 2:

• There is no way that Perata should still be Senate President Pro Tem at this point. While he has done a good job of hammering Republicans for their intransigence on the budget, this image hit, as well as the constant distraction of having to find new ways to raise money for his legal bills, are not what we need at this sensitive time, ESPECIALLY when Darrell Steinberg is waiting in the wings and perfectly capable of performing the same duties without the black cloud of indictment hanging over the head of the Democratic leadership. They haven't even taken a caucus vote on this yet, to my knowledge - it's currently scheduled for August 21, but during these budget negotiations that's doubtful to come off.

It is perfectly consistent to be skeptical of the Justice Department's case against Perata and to ALSO demand that he step down from his leadership position, and to excoriate the CDP for their conduct in either shoveling Perata money or acting as a conduit for that fund transfer.

You Won't Be Able To Serve Out The Last Two Days

Kind of too little, too late from John Conyers:

Join Me in Calling on President Bush to Respect Congress’ Exclusive Power to Declare War

Dear Democratic Colleague:

As we mark five years of war in Iraq, I have become increasingly concerned that the President may possibly take unilateral, preemptive military action against Iran. During the last seven years, the Bush Administration has exercised unprecedented assertions of Executive Branch power and shown an unparalleled aversion to the checks and balances put in place by the Constitution’s framers. The letter that follows asks President Bush to seek congressional authorization before launching any possible military strike against Iran and affirms Senator Biden’s statement last year that impeachment proceedings should be considered if the President fails to do so.

Never mind the fact that the dead-ender Senate Republican caucus wouldn't convict. A military strike on Iran would be likely to happen this summer at the earliest, probably not until October (surprise!). Then there are the hearings, and the vote in the House Judiciary Committee, and the vote in the full House, and the trial in the Senate, and the vote. Let's say for the sake of argument that every Republican in the Senate gets religion and decides to convict to sever all ties with this guy for good.

What does that mean, he gets to leave early and skip a weekend? The guy's got senioritis as it is.

The leverage of impeachment is over. That moment has passed. I agree with the need to reassert Congress' power to declare war (it's but one of the ways Congress must reassert power), but letting the executive get away with murder for 7 1/2 years kind of takes the edge off of a threat like this. Good luck putting the genie back in the bottle.

Shorter Bush

Yeah, we torture, what are you gonna do about it?

President Bush says he knew his top national security advisors discussed and approved specific details about how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, according to an exclusive interview with ABC News Friday.

"Well, we started to connect the dots, in order to protect the American people." Bush told ABC News White House correspondent Martha Raddatz. "And, yes, I'm aware our national security team met on this issue. And I approved."

[snip]

In his interview with ABC News, Bush said the ABC report about the Principals' involvement was not so "startling."

As emptywheel notes, this is no different from Fourthbranch Cheney telling Martha Raddatz "So" when she mentioned that 2/3 of Americans disagree with fighting in Iraq. The utter contempt from this Administration, for the opinion of Americans or the law, comes from a belief that they will never be held accountable for their crimes. And it's a well-earned belief, borne from the experience of a lapdog Congress, Republican and Democrat, that has never bothered to so much as lightly challenge the President and his cadre on these issues. It's taken this long for John Conyers to hold a hearing. And in 2006, the Military Commissions Act essentially gave them immunity from US prosecution. Of course that wouldn't affect the international courts.

We're going to have to struggle just to get all the relevant information. The White House will throw up stonewalls and barriers and the media is too busy talking about pizza and orange juice to give a damn. There's a Pentagon review of the FBI's involvement in interrogations that has been delayed because they're too busy redacting all of it.


This is OUR problem. All of us, actually. We enabled this and we consented to this. We thought that we could just win an election and move on. We don't even want to think about this guy occupying the White House. But he's there. And he's a war criminal. An entire branch of the government is populated with them.

This is a spot that won't come out.

Yoo's Law: And Why We Cannot Be Silent

As I wrote earlier today, the revelation that top-level officials in the White House actually debated what interrogation techniques to use on high-value targets, including torture, just sickens the stomach. In this context, it's clear that torture lawyer John Yoo was writing a document that was already written - a justification for the most heinous of crimes. That the Administration had to dip all the way down into the mid-level of the Justice Department, bypassing even the Attorney General, shows how difficult it was to find a cad willing to cover up their misdeeds, someone willing to disgrace the office and disgrace himself.

Yoo was a pawn bit none of this absolves him from blame. House Judiciary Committee Chairman John Conyers would like a word with him. Attorneys for Ali al-Marri, a so-called "enemy combatant" at Guantanamo, are using the memo to make the legal argument that his detention was actually illegal, since the memo was eventually withdrawn after al-Marri was captured and detained based on its legal theories. The "footnote" contained in the memo, that a previous memo waived the Fourth Amendment with respect to "domestic military operations," is causing Administration officials all sorts of grief on Capitol Hill. (That worm Mukasey, by the way, wouldn't say whether or not the Fourth Amendment waiver memo has been withdrawn.)

And now the National Lawyers Guild has called on Yoo to be disbarred and removed from the Boalt Hall School of Law, and for the Congress to repeal that part of the Military Commissions Act which gives him essentially legal immunity for his crimes.

In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President's detention and interrogation of enemy combatants. According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

"John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," said National Lawyers Guild President Marjorie Cohn.

Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country's premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

For those who want a "variety of views" to be expressed in the academic sphere, I think the National Lawyers Guild has a broader perspective about the First Amendment and freedom of expression.

There are things we can do at home as well. First, Mark Ridley-Thomas' resolution on torture must be passed, and used as a means to discover more about how medical professionals served this lawbreaking and who was involved all the way to the top of the chain of command.

As we recently commemorated the non-violent life and legacy of Dr. King, we cannot ignore the immorality of war that, he said, ravages our economy and “mutilates our conscience.”

Nowhere is that “mutilated conscience” more evident than in the alarming issue of health professionals involved in torture in the Iraq War [...]

Reports from the International Red Cross, The New England Journal of Medicine, the British Medical Journal, military records, and first-person accounts, provide overwhelming evidence that military physicians and psychologists have directly participated in the development and cover-up of torture and abuse of detainees in U.S. custody.

Medical professionals are reported to have advised interrogators as to whether particular prisoners were fit enough to survive physical maltreatment, informed interrogators about prisoners’ phobias and other psychological vulnerabilities that could be exploited during questioning, failed to report incidents of alleged torture, force-fed prisoners who were on hunger strikes, and altered the death certificates of prisoners who died [...]

As professional licensure and codes of ethics are regulated by states, California has the obligation to notify members of laws concerning torture that may result in their prosecution.

This week, I will put to a vote Senate Joint Resolution 19 on the floor of the Senate that states that the U.S. Department of Defense has “failed to oversee the ethical conduct of California-licensed health professionals related to torture.” [...]

Torture is much more than a political issue. It is an ethical, moral and spiritual issue that has not only become a shame, but it is an evil in our midst.

Dr. King would not remain silent on an issue of such moral importance. Nor will I. Dr. King repeatedly warned us that, “He who passively accepts evil is as much involved in it as he who helps to perpetrate it.”

And perhaps most important, on April 14 at the Bancroft Hotel, Yoo will make a public appearance in an event with Georgetown Law Professor David Cole and others. Perhaps citizens who stand against the torture and murder of human beings in service to a failed theory of extreme executive power ought to stop by and let him know how you feel.

April 14, Bancroft Hotel. Be there.

Powder Un-Drying?

I agree with emptywheel, John Conyers has kind of had it. He's been in Congress long enough to know how decayed the current one-way relationship between the legislative and executive branches truly is. So after months of wheedling, cajoling, strongly worded letters, even more strongly worded letters, and the like, he's finally starting to understand that jail is probably the only thing that the Bush Administration cronies will respond to. And so he reminded everyone today that there's a jail in the Capitol basement:

Madam Chairwoman, Ranking Member Drier, members of the Committee, thank you for this opportunity to testify on two related resolutions: 1) H. Res. 979, the Judiciary Committee’s resolution recommending that the House find White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers in contempt of Congress for refusing to comply with subpoenas duly issued by the Committee, and 2) H. Res. 980, a privileged resolution I introduced today authorizing the Committee to initiate or intervene in civil judicial proceedings to enforce those subpoenas.

Recommending that the House cite someone for contempt of Congress is a step that the Committee, and I as Chairman, take with great reluctance. Unfortunately, it is a step that is clearly necessary to preserve the role and constitutional prerogatives of Congress as an institution, in addition to getting to the bottom of the U.S. Attorney controversy.

The Judiciary Committee voted on July 25 to recommend the contempt resolution because, despite months of effort to secure voluntary compliance, the White House has refused to provide access to crucial information requested by the Committee. In fact, as of today, I have written nine letters over more than eight months trying to resolve this matter. But despite duly issued subpoenas, the White House has determined that it has the unilateral authority to prevent Mr. Bolten from providing us with a single piece of paper and to prevent Ms. Miers from even showing up at a Committee hearing.

If the executive branch can disregard Congressional subpoenas in this way, we no longer have a system of checks and balances. That is the cornerstone of our democracy, and it is our bipartisan responsibility to protect it. As our former colleague, Republican Mickey Edwards, has explained, taking action is crucial in order to defend Congress “as a separate, independent, and completely equal branch of government.”

I'll tell you, when I saw a hint of this in today's New York Times I dismissed it entirely. But I think Conyers finally understands that at stake is the legitimacy of the Congress itself. And as emptywheel notes, he has gone further than just bringing up the contempt citiations, calling on the House Judiciary Committee to intervene in civil lawsuits to force the US Attorney and the Justice Department to enforce the subpoenas. Conyers is trying to go over the head of the Attorney General here, and he has the ability to do it.

This really is a long time coming. I hear that Rahm Emanuel wants to keep the powder dry until after the elections because the Congress could lose in a court fight and would not have the ability to enforce their contempt citations in the future. But an unused weapon never struck anybody. The time to fight this out is now, before the precedent is established that a rogue President can grab whatever power he wants for himself and will face no resistance from the co-equal branches of government. I also agree with Kagro X on this:

And here's another consideration: the contempt vote was last postponed in order to avoid poisoning the atmosphere of "bipartisan cooperation" (cough, cough!) supposedly necessary for the passage of the economic stimulus package. With that out of the way, the stage is apparently set for this more confrontational issue.

But the House is also now wrapped up in the FISA issue, where the pressure is increasing for them to stand firm behind their already-passed RESTORE Act rather than agree to go along with the horrible, Rockefeller-backed betrayal passed by the Senate.

Will the House panic and back off of the contempt vote again, for fear that confrontations on both FISA and contempt at the same time is simply too much to bear? Quite possibly.

Here, it might be time to borrow a page from the White House playbook, and pursue a "flood the zone" strategy. When the White House has multiple outrages to perpetrate (as is so often the case), it does so in overwhelming waves, with no mind paid to pacing or any insistence on decent intervals in between. Indeed, the strategy seems to be to flood the public, the media, and the Democratic opposition with everything it can throw at them, all at once. And each time they've done it, the national media have been for the most part unable (or uninterested) in keeping up. Light five fires at once, and four go relatively unnoticed.

So perhaps it's time to bring out all the grievances against the executive now roiling beneath the surface inside the Congress. Why not deal with contempt at the same time as we (hopefully) fight on FISA? And why not encourage the Senate to add its pending contempt votes to the pile as well? And why not get down to issuing subpoenas aimed at the "administration's" stonewalling on questions surrounding the missing e-mails? The destruction of the torture tapes? The withholding of key documents and testimony by the Department of Education? By NASA? In fact, by virtually every department of the executive branch that's been asked to comply with Congressional oversight over the past several years?

It looks to me like the House may put up a fight on the FISA issue. Note that Speaker Pelosi very clearly lays out that a lapsing of the Protect America Act, which expires on Friday and will not be renewed (the Progressive caucus helped Republicans put a stop to that today), would not mean that any surveillance of foreign targets would stop whatsoever. Seems to me like a great strategy to have all of these fights at once, considering that a public and media distracted by the Presidential race won't take the time to figure it out.

And of course, there's the fact that whatever George Bush is screaming about on the teevee, Democrats who want to be loved by the public should do the exact opposite. Their approval numbers will skyrocket.

My encouragement is to fight. Support Conyers, support the progressives like Rush Holt who want to go back to the original FISA statute, and make Bush and his pals mental. It'll work.

What A Crappy Birthday Present

The Senate passed the final version of the piece o' crap Intelligence Committee's FISA bill by a count of 68-29. There are only 29 Senators who care at all about civil liberties. The bill not only gives amnesty to the phone companies, but gives the President a great amount of leeway to spy on really whoever he wants. DiFi, who said she would have a lot of trouble voting for the final bill if her amendments didn't pass (and they didn't), did opposed the bill, but that's a small victory indeed.

Here's Russ Feingold:

“The Senate passage of this FISA bill, while not surprising, is extremely disappointing. The Senate missed a golden opportunity to pass a bill that would give our intelligence officials the tools they need to go after suspected terrorists while also safeguarding the privacy of law-abiding Americans. Instead the Senate, with the help of too many Democrats, is yet again giving the administration sweeping new powers – and letting it off the hook for its illegal wiretapping program. I hope that our House colleagues will hold a stronger line, and refuse to accept the deeply flawed Senate bill. The calls from Americans tired of having their rights and their Constitution trampled on by this administration are only growing louder. Congress should stand up for the American people, and the Constitution, by opposing such a badly flawed bill.”

Four committees looked at this bill. Three thought it needless to give amnesty to the phone companies. Only the Intel Committee saw it as a necessity, and they got their way. As Chris Dodd called it on a conference call today, this is "the single largest invasion of privacy in American history."

The bill is going to conference, and the House's bill is manifestly better. You can sign here to demand that the House stands behind their bill. Many House leaders have come out today and spoken in defense of stripping amnesty out of the bill. Today John Conyers wrote that secret documents provided by the White House do not justify amnesty for the phone companies.

But we'll see if this means anything. Truly this is the perfect crime: the President decides to break the law, he employs industry to help him do so, then when he's called on it, he enacts the state secrets privilege to evade oversight from the Congress and the courts, and then demands immunity to let industry evade responsibility because they can't defend themselves, restricting any peek into the scope of the lawbreaking.

Thanks for making me sick on my birthday!

UPDATE: Sorry but this is true.

So Hillary Clinton missed all the FISA votes today. It's a shame--the Dems trying to block telecom immunity and add surveillance oversight were badly beaten, and I'm sure Clinton's 35 years experience and legendary ability to work for change would've come in real handy.

The primaries today are in Maryland, Virginia and DC. You could have come back to vote. This was important.

UPDATE: After voting against stripping telecom amnesty from the bill, and seeing her amendments fail, Sen. Feinstein voted against the final bill. Here's her statement:

“I have decided to vote against the FISA Bill before the Senate. This is not an easy decision because I strongly believe that we need to modernize the law relating to the gathering of foreign intelligence, and I support many of the provisions in the Senate bill.

However, I believe this bill didn’t do enough to protect against the assertion of executive power. I have said on many occasions that without the additional language to strengthen and tighten the exclusivity already in FISA, I could not support final passage.

I offered an amendment on this very issue. My amendment, which would have made it clear that FISA is the excusive authority for wiretapping U.S. persons for foreign intelligence purposes, received well more than a majority of this body – 57 votes. But it did not receive the 60 votes required. Given this strong vote, I remain hopeful that similar language will be included in a FISA bill that goes to the President.

There should never be another warrantless surveillance program. And I continue to believe that there should be a strong statement in law making it crystal clear that FISA must be followed, period.

Unfortunately, the bill before the Senate did not include such language and simply didn’t go far enough in protecting against executive power. That’s why I voted against the Senate bill.”

This elides the immunity issue and foregrounds the exclusivity amendment. But take it for what it's worth.

UPDATE II: This is the best explanation for why Dodd and the others agreed to the pretty bad unanimous consent agreement:

3.) Why didn't Dodd object to unanimous consent on the "compromise" that determined vote thresholds?

Well, the answer is simple: If he didn't Jello Jay would have bolted and brought Democratic Senators with him to vote in favor of a subsequent McConnell cloture motion. The same kind we beat back before the extension.

Had Dodd objected, there would have been no amendments at all. Not that the ones we got made a difference.

It was a damned if we did, damned if we didn't situation.

They Just Don't Have The Guts

The White House has defied subpoenas from the House and Senate Judiciary Committees, and demanded that its employees not answer subpoenas to testify to Congress. It's a fairly unprecedented, bold and brazen act. And they get away with it because the Democratic leadership keeps playing this "stop or I'll shoot, I swear I'll shoot!" game, when everybody on the planet knows that they'll eventually back down.

House Democrats have postponed a vote until December on contempt resolutions against White House chief of staff Josh Bolten and former White House counsel Harriet Miers, delaying for now any constitutional showdown with the White House over the president’s power to resist congressional subpoenas.

Judiciary Committee Chairman John Conyers Jr. (D-Mich.) has been pushing for the contempt vote, arguing that the White House must be held accountable for ignoring subpoenas issued by his panel as part of the U.S. attorney firing scandal. Other top Democrats, including Caucus Chairman Rahm Emanuel (Ill.), have argued that the House should put off that fight while debates over Iraq funding and electronic eavesdropping dominate the floor. The contempt vote had been tentatively scheduled for Friday before Majority Leader Steny H. Hoyer (D-Md.) informed his colleagues that it was being delayed.

“[Emanuel] has been saying that this week is not the time to do this, that it will step on our message on Iraq and FISA,” said a top House Democratic leadership aide.

I guess then they'll wait for a time when there's no pending legislation on the floor of the House. So we can all expect those contempt charges sometime around the 5th of never.

Conyers' committee authorized the contempt charges in JUNE. It's just unbelievably weak to wait five months before bringing it up for a vote. The body constituted in Article I of the Constitution is marginalizing themselves. They don't even need any help from the power-grabbing President.

The electorate learns through action. They see no action, they assume weakness and spinelessness. They're usually right.