The Dodd/Feingold Amendment 3907 to strip retroactive immunity from the underlying SSCI bill just failed, 31-67. 51 votes were needed to pass.
Voting with the Republicans were the following eighteen Democrats (again, rough count):
Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln. Joe Lieberman also voted against stripping retroactive immunity.
Not present and voting was Senator Hillary Clinton, the only presidential candidate serving in the Senate to miss the vote.
Before the vote, Senator Dodd raised a very interesting point that I haven’t previously seen discussed. Three out of of four congressional committees that looked at FISA reform legislation were opposed to retroactive immunity. The Senate Judiciary, House Judiciary, and House Intelligence committees all rejected retroactive immunity for the big telecoms. Only the Senate Select Committee on Intelligence supported retroactive immunity. Yet because the SSCI version of the FISA reform legislation was the underlying bill, we’re stuck with RI coming out of the Senate.
Feingold’s amendment 3912, which would have limited bulk collection, failed 37-60. Again, by rough count, more than ten Democrats voted with the Republicans to ensure this amendment failed.
I don’t have the full count yet, Updated with all twelve Dems voting with the GOP. but here’s who did vote with the GOP on this one:
Bayh, Carper, Johnson, Mikulski, Ben Nelson, Bill Nelson, Rockefeller, Landrieu, Inouye, Lincoln, Pryor and Webb
Bond’s amendment 3938, which includes an exception for wiretaps related to WMDs, passed by voice vote.
Kagro X at Daily Kos writes of the demise of the Senate. I quote nearly in full:
In rejecting the Feinstein “exclusivity” amendment to the FISA revision considered on the Senate floor today — an amendment that failed by a vote of 57 Ayes to 41 Noes, thanks to another “painless filibuster” of precisely the type we were promised would not be tolerated on this bill — the Senate has voted to say that although they were passing a law governing surveillance, it was OK if the President decided that he really didn’t like the law very much and wished to make up his own instead.
Exclusivity — the purpose of the amendment that “failed” — meant simply this: that the law they were passing was the law, and it was the governing authority for how surveillance could be conducted in America.
The Senate just rejected it, so that means that they’re passing a law, but if a president decides later on that he thinks there’s really some other controlling authority besides the law, that’s OK.
The original FISA, of course, had exactly such an exclusivity provision in it. That the new revision of the law will have had that provision explicitly “rejected” can mean only one thing: that nobody will know the actual state of “the law” on surveillance, because the “law” as written might not really be “the law” at all. In fact, it could be something entirely different, and maybe even something you’ve never heard of — or indeed will never be allowed to hear it, because it’s top secret. Or hell, you may not ever hear it because the President will make it up as he goes along. It won’t matter what the reason is, in fact. All that will matter is that “the law” supposedly governing surveillance says that there may or may not be some other authority that really controls. Maybe. Maybe not! Tee hee! Isn’t “law” funny?
This is a terribly sad day for our country.
The Specter-Whitehouse substitution amendment #3927 just failed 30-68. Voting against it were liberal senators like Dodd, Biden, and Murray. They opposed it because it would have taken the cases pending against the big telecoms and substituted the federal government as the defendant in all of them. It was a special treatment amendment and had it passed, it would have undermined the rule of law in America. That said, 31 votes for it were almost all Democrats.
Feinstein’s “good faith” amendment to move consideration of cases to the secret Foreign Intelligence Surveillance Courts (#3919) failed 41-57. 60 votes were needed for it to pass. While the Democratic caucus was largely in favor of this, some liberal senators like Dodd and Menendez again voted against it for the special treatment it would have provided the telecoms.
The SSCI bill just passed cloture, 69-29. In addition to Joe Lieberman,
I believe 19 20 Democrats voted in favor of cloture on the SSCI bill. Here is my currently incomplete the complete list:
Baucus, Conrad, Feinstein, Kohl, Lincoln, Landrieu, Mikulski, Bill Nelson, Pryor, Salazar, Whitehouse, Rockefeller, Inouye, Webb, Casey, Ben Nelson, Carper, Johnson, McCaskill and Bayh.
I’ll update that list when I have all the names.
I will also be looking closely to see which Democrats vote for cloture but against final passage. I don’t see any reason why a Democrat should have voted for cloture and while final passage is a relevant vote, the cloture vote was a lower threshold to stop this bill.
The Senate is taking a break for meetings, but will resume debate post-cloture after 2 PM Eastern. Senator Dodd is expected to take the floor and talk in opposition to the bill for up to four hours. The vote on final passage should take place later this afternoon or evening.