I’m going to do two things in this post. First, I will explain the likely legislative process on FISA in the Senate and House. Second, I will discuss Chris Dodd’s course of actions regarding a filibuster and where that stands now.

Tomorrow looks to be the big day for FISA votes in the Senate. Senator Dodd’s amendment to strip retroactive immunity from the underlying SSCI bill will be given a vote – it will need 51 votes to pass. Other amendments pertaining to retroactive immunity will also be given votes – Whitehouse’s substitution amendment and Feinstein’s “good faith” amendment. The bad news is that these amendments are all likely to fail, though Feinstein’s might have the best chances of passing, even with a 60 vote threshold.

Following the votes on all remaining amendments – a number are still out there on Title I of the SSCI bill and would succeed in improving congressional oversight of domestic surveillance – there will be a cloture vote on the bill. If we have any hope to stopping retroactive immunity and a bad Intel bill in the Senate, this is it. Most likely, though, the Republican caucus will be joined by a significant number of conservative Democrats and cloture will pass. After cloture, Senator Dodd will have up to four hours to speak in opposition to the bill. He may share some of that time with Senators Feingold, Leahy, and Kennedy. No more than 30 hours after cloture passes, there will be a vote on final passage of the SSCI bill. That will probably pass and the Senate – thanks in large part to the diligent work of Jay Rockefeller and the decision-making of Harry Reid – will have given George Bush, Dick Cheney, and the big telecom companies what they wanted.

As the Senate version of FISA reform legislation is dramatically different from the RESTORE Act, passed by the House last November, there will be a conference committee to sort out the legislation. Unless both chambers quickly pass another 15 day extension to the Protect America Act, the conference committee will have to finish their work and send it along for votes by this Friday, when the PAA is set to expire. Once it’s out of conference, no amendments will be allowed to the legislation, so the bill will only be voted on by the two chambers and not modified any further.

Now, here’s where things get worse. It’s possible that during the conference committee, Blue Dog Democrats in the House will side with the GOP and lobby hard for retroactive immunity. If the conference report strips retroactive immunity (that is, if Title II of the RESTORE Act prevails over the SSCI version), then the conference report will most likely fail to pass in the Senate. Jay Rockefeller and somewhere between 14-16 Blue Dogs in the Senate will join the Republicans to oppose the bill. When the Senate voted on the Protect America Act last August, sixteen Democrats voted with the Republicans in favor of the bill; that roster is a good starting place for potential aisle-crossers this time around. We’re clearly up against real obstacles in both the House and Senate Democratic caucuses.

To finish up the process side of this, the conference report will be introduced in the Senate (and House), cloture will be filed, cloture will ripen, there will be a cloture vote, there will be up to 30 hours for debate (though no guarantee it will all be used), and then there will be a vote on the conference report. Again, it’s my understanding that the goal of the Senate leadership would be to have all of this take place by Friday if no extension is passed. Without an extension, the telecoms will likely have retroactive immunity by the end of this week.

Now, I think there’s a need to look back at this process and answer some questions about what brought us here and what, if anything, could still be done by someone like Chris Dodd to stop the bill from moving forward. I’ve previously been highly critical of the unanimous consent agreement brokered by the Democratic and Republican leadership in the Senate, but will be offering a defense of Dodd’s vote in support of the agreement in the context of the course of events and what alternatives existed in this legislative fight.

The short version is that the unanimous consent agreement which negotiations between Democratic and Republican leadership produced about two weeks ago included a cloture vote (which will be taking place tomorrow) and that limits the ability of Senator Dodd to draw out debate beyond what is currently taking place. Cloture was filed on the underlying SSCI bill on Friday, so today’s debate has been taking place while it is ripening.

The question at hand is: Has Dodd done all he can? Has he filibustered? Is he breaking his promise to filibuster any bill that includes retroactive immunity?

There are a number of levels at which I can try to answer these questions. The short view is the UC agreement that’s governing the debate, which Dodd consented to, does not allow him to draw out debate beyond tomorrow’s cloture vote. Did not objecting to UC constitute a failure to uphold his promise to filibuster? I don’t think so, and here’s why:

The negotiations had been very slow going and hinged in part on the vote totals required to pass each amendment. While some Senators were willing to raise their vote total to 60 (Feinstein, Cardin & Whitehouse), Dodd refused. As a result of standing firm, he was able to get consent from people like Rockefeller who didn’t want Dodd’s amendment to require a simple majority. But the tradeoff was that he had to consent to the UC agreement as well. That included cloture. Now, the reality is that had Dodd sought to extend debate following his amendment’s failure, someone would have filed cloture at some point on him. There’s no way to reasonably argue that cloture would not have been filed to stop Dodd from talking and move to vote on final passage. In that regard, I don’t think consenting to cloture in the UC agreement constitutes him breaking his word on the filibuster.

The other main feature to note in the negotiation of the UC agreement was that it was taking place under duress. Senator Rockefeller was threatening the Democratic leadership that if they didn’t sort out a UC agreement that would allow debate to move forward, he and a block of Blue Dog Democrats would support Republican efforts to pass cloture on the SSCI bill before any amendments could be voted on. Recall that Rockefeller and the Blue Dogs had previously voted with the rest of the Democratic caucus to stop the Republican efforts to have cloture on the SSCI bill earlier in the fight. The threat Rockefeller was levying was simple: agree on how we’re going to proceed or you won’t get to put any amendments onto the SSCI bill.

The UC agreement included a simple majority vote to strip retroactive immunity from the underlying bill. Dodd had long said that he sought a majority vote on his amendment – that’s why he stopped the SSCI bill cold last December, by refusing UC on the motion to have all amendments require 60 votes. Agreeing to the UC agreement allowed him to have that. Disagreeing would have likely prevented from their being any vote to strip RI from the SSCI bill.

Though it’s unlikely that any Democratic amendments receiving roll call votes under this UC agreement will pass, it’s also worth noting that the agreement did include updates to Title I to make it technically somewhat better through the manager’s package. I’m not going to sit here and tell you it went all the way to turning it into a good bill – it didn’t. But it is more than we would have gotten had Rockefeller and the Blue Dogs sided with the GOP and steamrolled the process.

If Dodd had objected to UC, we would not have a chance to amend the underlying bill. We would not have gotten the improvements agreed to in the manager’s package. Rockefeller and the Blue Dogs would have flipped, and we’d end up with the SSCI bill moving forward in worse shape. I’ll grant that we’re going to end up fairly close to that point anyway, but I do not think that objecting to UC because the option was open to him would have been the best course for Chris Dodd. This way, his amendment to strip RI will get a vote tomorrow. It needs a majority to pass and there are 50 Democrats in the caucus. We’re not going to get closer to defeating retroactive immunity in the Senate than that and it’s simply a shame that so many Democrats support immunity. It’s also a shame that Harry Reid does not have the same control over the Democratic caucus as Mitch McConnell has on the Republican one.

Lastly, the rules of the Senate aren’t what they used to be. The rules don’t allow Dodd do to a stand up, “Mr Smith Goes to Washington”-style filibuster like Strom Thurmond did on civil rights legislation. From a practical standpoint and in my assessment, Dodd has been filibustering the SSCI bill since December 17, 2007. His filibuster has allowed us time to organize grassroots pressure on the Senate. It has allowed us to get get votes on amendments that will improve the underlying bill. It has kept the Republican Party’s efforts to destroy the rule of law in the spotlight for all to see. It has taken an issue that Bush, Reid, and Rockefeller wanted done in a matter of hours so the Senate could go on Christmas vacation and stretched the process out over eight weeks. At a certain point, we have to recognize that we simply do not have the 41 votes needed to defeat cloture and uphold Dodd’s filibuster.

I know that Dodd’s course of action may not be what some people expected. Given the reality of the situation and given the rules of the Senate, I can honestly say that I do not know what else Dodd could have done to ensure a different outcome. That may not be what some others think, but please note that I make this judgment this as someone who desperately wanted to see the Senate kill retroactive immunity and has been as thoroughly invested in the fight as just about anyone else out there.

In my eyes, the blame for retroactive immunity passing in the Senate will lie with two people: Jay Rockefeller, for holding a gun to his Democratic colleagues while trying to ensure his buddies at Verizon and AT&T get their “Get Out of Jail Free” card, and Harry Reid, for inexplicably choosing to make the SSCI bill the underlying bill before the Senate and not the better alternatives provided by the Senate Judiciary Committee and the House of Representatives. Reid also circumvented Dodd’s hold on the SSCI bill; under normal circumstances, the hold would have been the most powerful weapon Dodd had it his disposal. Reid’s decisions, more than anything else, made it impossible for us to pass a bill without retroactive immunity in it.

At the end of the day, to defeat retroactive immunity and to uphold a filibuster, Chris Dodd needed more support for his efforts than exists in the Senate. He needs 40 other Democrats and the sad reality is that there are not 40 other Democrats who are opposed to retroactive immunity. Dodd was our strongest ally in the fight, but he couldn’t win it on his own. I respect and appreciate the work he has done and though I wish the outcome were different, though I wish he could have done something to else to stop this legislation from moving forward, the obstacles set by Harry Reid, Jay Rockefeller, and an all-too spineless Democratic caucus were too much for him to overcome.

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It should be worth noting that I no longer have any connection to Senator Dodd’s campaign, nor his Senate office, and I am speaking solely for myself here.