Upon hearing that the auto bail-out bill (which is actually H.R. 7005, the Alternative Minimum Tax Relied Act of 2008) failed a cloture vote last night in the Senate 52 - 35 and attracted 10 Republican votes, my immediate thought was: Which Democrats voted nay? However, upon looking at the actual role call vote, what is more clear is that the media is misreporting the result.

Currently, the Senate is really a 49 - 49 tie, with Democrats nominally exercising the power of the majority. President-elect Barack Obama's seat is currently vacant (see Blagojevich, Rod) and Vice President-elect Joe Biden not voting. It's possible that Senator Biden (who has not yet resigned his seat) could possibly vote if his was decisive (the Vice President does break ties in the Senate, after all), but it's far less likely that he would intervene on a procedural vote.

In fact, the real vote was actually 53 - 34, because Senator Harry Reid (D-NV), the Majority Leader, only voted nay for procedural reasons; had he known he had the votes, his would have been yea. That leaves only three Democrats voting nay: Senators Max Baucus (D-MT), Blanch Lincoln (D-AR) and John Tester (D-MT). Again, had the cloture tally been closer to 60, at least one or two (if not all) of these three could've been convinced to vote yea even if they then turned around and voted nay on final passage.

Therefore, as H.R. 7005 currently stands in the Senate, finding five, maybe six, more votes would most likely roll into enough votes for cloture. The little reported fact (and if you do the math) is that there were 12 Senators that didn't vote. Looking at those non-votes, you had three Democratic Senators that would have certainly voted for cloture: Senators John Kerry and Edward Kennedy (D-MA) as well as Ron Wyden (D-OR) - remember, Senator Biden is most likely a non-vote - which gets you to 56 yea votes for cloture.

That means there were 8 GOP Senators not voting: Senators Lamar Alexander (R-TN), John Cornyn (R-TX), Larry Craig (R-ID), Linsey Graham (R-SC), Chuck Hagel (R-NE), Gordon Smith (R-OR), Ted Stevens (R-AK) and John Sununu (R-NH). Of this group of 8, fully five of them were either defeated for reelection or retired. If the behavior of the likes of Senators John Warner (R-VA) - much respected by PN - and Elizabeth Dole (R-NC) are indicative, then it is reasonable to believe that at least a few of these Senators could be at least convinced to vote for cloture, even if, again, they voted nay on final passage. Of these five, it is reasonable to assume that the votes of Senators Hagel, Smith and Sununu are gettable, which brings you to 59 votes.

At 59, you could then have several scenarios to get that last vote. As mentioned earlier, you could easily see any one of the 3 Democratic nays (if not all) vote yea on cloture and nay on final passage. In addition, the two convicted members on the list (Stevens and Craig), you could reasonably hope to get Senator Alexander (a member of the Gang of 14) or two flip more reasonable Republicans such as Senators Judd Gregg (R-NH), who just witnessed Democrats sweep Republicans in his home state, and Mel Martinez, who recently announced that he will not seek reelection in 2010. The bottom line here is that there seem to many several routes to get to 60 votes and enough incentive for Senators to be working through the weekend and Majority Leader Reid's capitulation on the floor last night disappointing.

I have to respectfully disagree on the note about more conservative Republicans making the Sunday rounds this week than Democrats. There is a good reason for this: The MSM has spent a lot of air time this week (what with the RGA meeting in Miami) on the future of the Republican party. From what I've heard so far, most of the GOP-ers that I've heard on TV really don't get it. It can only help Democrats if a parade of top GOP figures go on TV and argue that they lost because they weren't conservative enough, that they lost their way. The election was a repudiation of movement conservatism, so if these guys want to go on TV and make the same losing arguments, I have noooooo problem with that!

Since the selection of Governor Sarah Palin of Alaska by Senator McCain as his Vice Presidential pick, aside from the brief interruption by Hurricane Gustav, it’s been wall-to-wall Palin. In particular, since the campaign itself disclosed that Governor Palin’s seventeen-year-old old daughter is five months pregnant, will keep the baby and marry her boyfriend Levi, the coverage has been extremely intense. The initial media reaction has largely assumed that this was a last-minute pick and that she had not been well vetted - understandable, but wrong. Read more ...

I just posted a response to the ludicrous Appeals Court ruling today that, apparently, being in JFK does not necessarily mean you're in the United States:

Today, thanks to the United States Court of Appeals for the Second Circuit in New York, there is, for the time being, a new legal black hole - and this one wasn’t even created by the Bush Administration. The appeals court decided the case Arar v. Ashcroft, et al. (Circuit docket 06-4216) 2-1 that Arar could not file suit because he was not technically inside the United States - this is totally ludicrous.

This video was featured tonight on Countdown with Keith Oberman - nicely done!

Most outlets have New Hampshire as a battleground this November, not so fast:

Conventional wisdom has it that New Hampshire, largely thanks to Senator John McCain’s history there in presidential primaries, will be competitive this fall. In fact, in my initial picks on what the electoral map would look like this November, in most scenarios outside of a total Obama sweep, I had NH in the McCain column. Almost every recent media discussion has had NH as a “battleground state” this fall. However, as is quite often the case (particularly in this election cycle), is conventional wisdom wrong?

In recent months, an unholy trinity has emerged between lobbying (most notoriously symbolized by felonious former lobbyist Jack Abramoff ), earmarks and the National Renewable Energy Laboratory (NREL). On its surface, the three may not necessarily seem to converge; at least not the third. However, in a (very) minor flap after the State of the Union Address, in which President Bush stated that Americans are “addicted to oil” and stressed alternative energy sources such as ethanol, wind and biomass, NREL, due to earmarks, was going to have to cut staff in these very fields. In the end, these positions will be retained because the Department of Energy (DoE) will transfer funds from other programs to make up the difference in NRELs budget lost to earmarks. While this does save the Administration some amount of embarrassment, it is very illustrative of our sad state of affairs; and gives us a chance to offer a simple, elegant solution.

The day after the State of the Union Address, NREL announced that a $28 million dollar budget cut, largely due to earmarks, was forcing it lay off researchers in its ethanol and wind technology divisions. The weekend before President Bush was to visit the laboratory in Golden, Colorado, the DoE announced that it would transfer $5 million to NREL from other programs and that the 32 laid employees would be reinstated. While it’s certainly good news that these researches in critical fields will be back at work, three disturbing problems still loom; first, NREL still faces a $23 million shortfall, second, the $5 million from DoE had to come from somewhere and, lastly, the earmarks that caused the shortfall are unaffected. Therefore, in the end game, $23 million from NREL and $5 million from other DoE programs will go to pork barrel projects rather than simply $28 million from NREL; a wash (or a white-wash, depending on your perspective).

While we are unlikely to completely get rid of earmarks in the near future, we can find simple solutions to insulate critical areas – such as energy and homeland security – from earmarks. As the Abramoff scandal has illustrated, earmarks are a very lucrative way for quid pro quo (or at least questionable) budgets items to be inserted into legislation, often times at the last minute, in return for everything from fat campaign contribution to free travel to lavish fundraisers. However, there already exists a simple model that can be used – at least in the short term – to insulate important national programs from this type of politicking; the Corporation for Public Broadcasting.

The Corporation for Public Broadcasting (CPB) was founded in 1967 when President Lyndon B. Johnson signed the Public Broadcasting Act of 1967 as a private, nonprofit corporation with a charter to promote public broadcasting. In 2005, the agency received $368.8 million in federal appropriated – about 90% of which was distributed to public broadcasters across the country. Specifically, the creation of the CPB was done with a deliberate attempt for it to act as a “heat shield” in order to ensure that politics doesn’t influence public broadcasting. While there has been some scandal recently due to the blatant political actions of a recent Bush political appointee, the CPB model has, by all accounts, been very successful; this model should be emulated for NREL and other critical agencies.

What should be important is merit; the best ideas and the highest priorities should decided based on merit, not on which key lawmakers is in a position to insert line items into the DoE budget. NREL should act like the CPB; the majority of funds will go to the centralized NREL lab for basic research with the rest distributed to meritorious programs applying the technological advances to marketable solutions based upon a rigorous review program where only the fittest proposals emerge. Each Senator or Representative will could certainly lobby the board on favor of individual proposals; and, to be sure, strong cases can be made. However, experts should decide which proposals are the best bets in a world of limited resources.

Furthermore, if NREL misses the boat on some new technology, Congress would be able to create a new board within DoE outside of NREL. However, in contrast to the earmark method, this would have to be an act that would be debated by the full body in the light of day; in stark contrast to budget items inserted into appropriations measures in the dead of night which are read by nobody. Sensitive areas like energy are not only critical to our economy, but to our national security as well. In these critical programs, politics should play no role and, oddly enough, the CPB provides a perfect model to ensure that we have a “heat shield” to protect them from the lobbying-earmark explosion.

On December 16^th, 2006 the New York Times published and article (which it had been holding back, the paper said, for a year) disclosing a highly classified NSA program for intercepting the calls of Americans without warrants. The program was authorized by President Bush in the wake of the terrorist attacks of September 11^th, 2001. After initial reaction focusing on the fact that the program seemingly circumvents the 1978 Federal International Surveillance Act, or FISA, the White House responded that the program was legal based on the 2001 Joint Resolution of Congress authorizing the use of force against the 9/11 attackers and his inherent power as President.

More recently, Attorney General Alberto Gonzales appeared before the Senate Judiciary committee and Vice President Dick Cheney on PBS’s “The News Hour” with Jim Lehrer to defend the program. Questioners, in the Senate and the media, have pointed out that many members of Congress have pointed out that they never imagined the Authorization for Use of Military Force (AUMF) would allow the President to circumvent FISA. The common response by the administration in defending what it is trying to rebrand the “Terrorist Surveillance Program” is that AUMF doesn’t mention it, but the Supreme Court, in Hamdi v. Rumsfeld, decided that President had the power to “detain American citizens”. On its surface, this sounds like a strong point. However, this is actually just clever spin; so what does Hamdi actually say?

The case of Hamdi v. Rumsfeld was decided by the Supreme Court on June 28^th, 2004. The reason the case was elevated to the Supreme Court because a petition for habead corpus had been dismissed by a lower court. However, the issue before the Court was whether or not the President had the authority to detain an American citizen without charge, indefinitely and without the ability to challenge their detention before an impartial judge. The Court ruled 6 – 3 reversing the lower court’s decision in denying Hamdi’s request. However, the decision goes much further than that.

With its recent rhetoric, the administration is treating the decision as if it was a victory for its policies, a vindication of Presidential powers and a precedent for the legality of its NSA program; this is far from the truth. In fact, on the most basic level, the administration lost this case; it argued against remand and for the 4^th Circuit’s decision while the Court ruled against it. Justice O’Connor wrote the majority opinion, joined by Chief Justice Rhenquist, and Justices Kennedy and Breyer with Justice Souter writing a concurring opinion joined by Justice Ginsberg. Not only did a majority rule against the administration, the concurring opinion went further and challenged the legality of the detention itself.

The administration uses the phrase “detain American citizens” in a way that sounds very blanket and expansive; as if to say that any American can be plucked off of a street corner and held as an “enemy combatant”. The facts of Hamdi, however, concern an American citizen who was captured in Afghanistan when his Taliban unit surrendered to the Northern Alliance and he was turned over to the American military. Hamdi was captured in an active war zone along with an enemy unit; this is certainly far, far more narrow than the administration’s language would have use believe.

Some administration officials have gone even further and claimed that even in the absence of the AUMF, notably Vice President Cheney, Hamdi reaffirms that the President’s Article II wartime powers allow the President to authorize the NSA program; nothing could be further from the truth. Justice O’Connor, in her majority opinion stated:

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF."

Furthermore, the administration was dealt a succinct slap in the face by Justice O’Connor in stating:

“First, the Government urges the adoption of the Fourth Circuit’s holding below–that because it is “undisputed” that Hamdi’s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected.” [bold added]

Justice O’Connor goes further:

“In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Therefore, without even looking at the concurring Souter opinion – which holds the detention of Hamdi as an “enemy combatant” illegal – we can see that the Hamdi decision completely flies in the face of the administration’s recent claims that it supports the legality of President Bush’s decisions to circumvent FISA. The decision makes clear that, even in a time of war, there is role for all three branches of government, therefore, that the President’s powers are not unchecked. Surely, the Attorney General understands the content of the Hamdi decision; what is truly sad is that the Senators on the Judiciary committee, most of whom are lawyers, didn’t call him out his misleading characterization of it.