Tuesday, February 12, 2008: Senate passes a FISA update that includes lawsuit protection for telecom companies

Senate passes FISA bill easily

[19:22]
The bill passed the Senate easily, 68 to 29. There never was any filibuster. None of the amendments that senators voted on, this week or last week, passed. Retroactive immunity remains in the bill. Recall that the House version did not include telecom immunity. But if I had to guess, I would guess that the conference report ultimately will include the immunity provision.

Cantwell joins chorus suddenly pointing out flaws in FISA update

[15:18]
Maria Cantwell (WA) is speaking in opposition to the FISA bill pending before the Senate. I am wondering where she was when these amendments were being debated, when it was basically just Dodd, Feingold, and Whitehouse out on the floor speaking in defense of Americans' civil liberties. Barbara Boxer, too. Post-cloture is not the time to start debate.

Dodd speaking against passage of the bill

[14:55]
Right now Chris Dodd is saying that the FISA bill on which senators just invoked cloture is flawed. Barbara Boxer (CA) spoke earlier and announced a similar sentiment.

What I am trying to ascertain is whether Dodd & Co. will attempt some sort of filibuster of the bill's final passage. I am not sure whether such a filibuster is possible. It does seem possible that Dodd et al. could force the Senate to use up all of the available post-cloture time for debate. Keeping in mind that the pertinent versions of FISA expire on Friday, and that the Senate version must still be passed and reconciled with the House version, it is possible that even a short delay could wreak havoc.

Dodd said something about 30 hours of post-cloture debate. He is also holding out hope that the House will not cave to the Senate in conference.

Retroactive immunity set to become part of Senate's version of FISA update

[12:26]
The House-passed version of a FISA update did not include retroactive immunity. Certain parts of current FISA law expire Saturday. This leaves the House and Senate only a few days to conference and agree a final version of the bill. Will retroactive immunity survive the conference? Can Dodd still muster a filibuster of the Senate bill?

Recess until 14:15.

Cloture vote on update of FISA legislation is a success

[12:17]
OK. Not a single FISA amendment has passed by a roll call vote. Now the FISA bill itself faces a cloture vote.

60 votes needed:

• Democratic ayes: Baucus, Carper, Feinstein, Johnson, Kohl, Landrieu, McCaskill, Mikulski, Nelson (FL), Salazar, Nelson (NE), Lieberman, Bayh
• Republican nays:

Notes:

• Cloture will be invoked, limiting further debate on the bill.

• Obama votes no.

Result:

• Cloture is agreed to, 69 to 29.

Feinstein amendment asking for courts to examine whether telecoms reasonably complied with gov't request to spy will fall

[11:58]
This amendment, No. 3919, asks the FISA court to consider whether the telecom companies acted in good faith when they complied with gov't requests to sequester the communications of Americans after September 11th, 2001. If these companies acted in bad faith, they would remain liable to lawsuit. If the company acted with a reasonable belief that it was acting lawfully, it would be immune from prosecution.

60 votes needed:

• Republican ayes: Specter
• Democratic nays: Dodd, Dorgan, Inouye, Johnson, Lieberman, Nelson (NE), Pryor,

Notes:

• This won't pass.

• Obama votes yes, McCain votes no. Clinton is a no-show.

Result:

• Amendment falls, 41 to 57.

Now a Specter/Whitehouse amendment affecting retroactive immunity will fail

[11:45]
The amendment substitutes the U.S. government in the place of the telecom companies in lawsuits stemming from the government's illegal wiretapping program.

51 votes needed:

• Republican ayes: Specter
• Democratic nays: Bayh, Carper, Conrad, Dorgan, Feinstein, Inouye, Johnson, Klobuchar, Pryor, Nelson, Tester, Salazar, Murray, Landrieu, Lincoln, Baucus, Dodd, Biden, Lieberman

Notes:

• This is not going to pass either. These votes aren't even close. Dodd apparently isn't willing to go for this approach to immunity.

• Who knows how Clinton would have voted on these. She hasn't shown up today. Obama has voted yes on this vote (and yes all morning). McCain the opposite.

Result:

• This falls 30 to 68.

After three failed FISA amendments, Feingold's "bulk collection" prohibition will be fourth to fall today

[11:18]
Nine Republicans joined Democrats in the first vote of the day but since then Republicans and Democrats have been unwilling to support Feingold and Dodd amendments, one introducing more safeguards and one stripping telecom immunity from the bill. Hillary Clinton (NY) is a no-show. Now a Feingold amendment banning "bulk collection" of communications. Rockefeller opposes this amendment, saying that the bill already takes into account the safeguards Feingold is seeking. Bond says that the only American being listened to under the FISA update is one calling or being called by a terrorist.

51 votes needed:

• Republican ayes:
• Democratic nays: Carper, Johnson, Mikulski, both Nelsons, Landrieu, Lincoln, Inouye, Webb, Pryor, Lieberman

Notes:

• This won't pass either.

• Obama votes aye. He has supported every amendment so far this morning. Clinton hasn't shown up yet.

• Lieberman has voted with Republicans this morning.

Result:

The Dodd amendment stripping retroactive immunity from the bill falls well short of 50 votes

[11:00]
Let the courts determine the legality (or illegality) of this program, says Chris Dodd (CT). Bond rises to say that immunity is an "essential part of this bill." The discovery process will lead to disclosure of our sources and means of collection, he says. Our private sector partners would also be discouraged to cooperate with us in the future. Rockefeller "strongly oppose(s)" this amendment, No. 3907.

50 votes needed:

• Republican ayes:
• Democratic nays: Bayh, Feinstein, Johnson, Kohl, Landrieu, McCaskill, Rockefeller, Stabenow, Salazar, Mikulski, Conrad, Webb, Lieberman, Lincoln

Notes:

• Clinton has missed the first two (going on three) votes of the morning.

• This is not even close. It remains to be seen whether the bailing Democrats will support two other amendments altering the bill's retroactive immunity provisions.

• Obama votes "aye".

Result:

• Big loss, 31 to 67.

A Feingold "safeguards" amendment falls well short of 50 votes

[10:42]
Rockefeller opposes this Feingold amendment, No. 3979. It seeks to provide additional safeguards on communications involving persons in the U.S. Barack Obama is among nine co-sponsors.

The amendment needs 51 votes to pass:

• Republican ayes:
• Democratic nays: Feinstein, Landrieu, Levin, Pryor, Rockefeller, Lincoln, Bayh, Nelson (FL), Lieberman, Carper, Salazar

Notes:

• This thing is not passing. Feingold has lost eleven Democrats already and isn't picking up any of the nine Republicans that were willing to support the Feinstein amendment.

• McCain votes no. Obama votes yes. Clinton has not yet appeared today.

• Salazar changes his vote from "no" to "aye."

Result:

This amendment falls big time, 35 to 59.

Feinstein's "exclusivity" amendment falls, despite getting nine Republican votes

[10:15]
This Dianne Feinstein amendment, No. 3910, specifies that FISA is the sole means by which the government can conduct surveillance electronically. Feinstein wants such a provision in the bill in response to the Bush Administration's decision to go outside the realm of FISA when it introduced its warrantless surveillance program earlier this decade. Feinstein seeks to make clear that Congress has spoken on the matter, thus diminishing the president's power in the same arena. Bond opposes the amendment but Intelligence committee chairman Jay Rockefeller urged its passage.

60 votes needed for passage:

• Republican ayes: Smith (OR), Hagel (NE), Murkowski (AK), Snowe (ME), Collins (ME), Sununu (NH), Voinovich (OH), Specter (PA), Craig (ID) (need two more)
• Democratic nays: Lieberman (CT), Nelson (NE)

Notes:

• Barack Obama (IL) is on the floor. He has just voted "aye." He is talking in the well with McCaskill (MO) and Rockefeller (WV). Then he talks with who I think was Barbara Boxer (CA). He left after shaking hands with some of the clerks.

• Pryor (AR) has just [10:35] changed his vote from a "nay" to an "aye".

• John McCain (AZ) has voted no.

• Hillary Clinton (NY) did not vote.

• It is remarkable to see so many Republicans joining the support for this amendment. The Republicans voting "aye" are some who also joined Democrats in opposing portions of the PATRIOT ACT reauthorization (Specter, Sununu, and Murkowski). The Craig vote was surprising.

The result: Amendment falls 57 t0 41, despite getting nine Republican votes. Losing Pryor and Lieberman cost the Democrats, not to mention the Clinton absence.

Whitehouse amendment on minimization procedures passes by a voice vote

[10:13]
Overnight, Sheldon Whitehouse (RI) modified his amendment stressing minimization procedures in the course of intelligence collection. The modification brought with it the support of Intelligence Committee vice-chairman Kit Bond (MO) as well as FBI director Robert Mueller. The amendment, which had faced a 60-vote threshold, passed by a voice vote.

Votes begin at 10:00

[8:50]
The Senate convenes at 10:00 and launches directly into a series of votes on FISA amendments, eight before it's all said and done. Three amendments must meet 60 vote thresholds, but the amendments either stripping or watering down the retroactive immunity in the legislation need get only 51 votes to pass. What I'm wondering now is whether the presidential candidates will be present today. After all, it is the Potomac Primary or Chesapeake Tuesday. In other words, they're not far away. Some of the votes today will be very close.

Chris Dodd (CT) spoke for two and a half hours at the end of yesterday's session. He was not real optimistic about the vote for his amendment stripping immunity from the bill. Instead, he asked 39 other senators to join with him and Russ Feingold in opposing cloture on the bill itself. A cloture vote on the bill could occur today. If so, it would occur after all of the votes on amendments are complete.