Should Congress Give Telecoms Immunity?

Senate Vote Set For Monday; Details On 12 Key Senators
The Senate has scheduled a cloture vote Monday afternoon at 4.30 EST over FISA (Foreign Intelligence Surveillance Act) legislation that would provide immunity for telecom firms. This current impasse highlights the age-old tension between individual liberty and government surveillance.

FISA was enacted almost 30 years ago in reaction to government abuses of electronic surveillance for national security purposes, and most American voters (63%) still believe that the government should have to get a warrant before tapping conversations of US citizens. Moreover, about 6-in-10 "reject immunity for phone companies that may have violated the law by selling customers’ private information to the government, preferring to let courts decide the outcome of any cases." (pdf / tip).

The three Democrats who serve on both Senate Judiciary and Intelligence Committees -- Russ Feingold (WI), Dianne Feinstein (CA) and Sheldon Whitehouse (RI) -- voted Friday on the losing side of a test that foreshadows Monday's filibuster vote. Not voting Friday: Sens. Clinton (D-NY), Graham (R-SC), McCain (R-AZ) and Obama (D-IL). Reportedly, Clinton and Obama will be present and vote "no" on Monday.

<sup>Related: What is cloture? ; What is FISA? ; What is the RESTORE Act? ; What is the wiretapping issue? ; What happened in August to make warrantless wiretaps temporarily legal? ; FISA Reports to Congress, 1979-2006 ; Getting To Know Your Government: The Senate

The Candidates On FISA
Clinton : Edwards : Obama
McCain : Huckabee : Paul : Romney</sup>

The current conflict reflects differences between Senate Judiciary and Intelligence Committee bill drafts. It also showcases White House House insistence that the 30-year-old FISA is insufficient for the modern age, along with the power of telecom lobbyists. Under the language of the original FISA, the Administration had the authority to conduct emergency wiretaps, but it had to get retroactive approval, a procedure the White House has criticized as being onerous.

Backstory: On the eve of summer recess in August 2007, Congress passed the Protect America Act of 2007, giving the White House a six-month period during which it could legally conduct wiretaps without third party oversight. Instead, two political appointees (the Attorney General and the National Intelligence Director) have had joint authority to approve wiretaps (rather than the 11-member FISA court, which almost always says "OK" to wiretap requests).

That grace period expires 1 February 2008. Monday's cloture vote requires a three-fifths (60) majority to end debate on the bill.

Today's Story: Last fall, the House passed a FISA bill (HR 3773); it does not provide for immunity for telecommunications firms that participated in the Bush Administration's unconstitutional wiretapping program.

The Senate has two versions of its FISA bill (S 2248): one with immunity, passed by the Intelligence Committee (26 October 2007), and one without immunity, passed by the Senate Judiciary Committee (16 November 2007). Senate Majority Leader Harry Reid picked the Intelligence Committee version to move forward; Senate Intelligence Committee Chair Jay Rockefeller (D-WV) has three telecom-related firms in a list of his top 10 donors: AT&T, #2; Time Warner, #5; Verizon, #7.

See a side-by-side comparison of the bills from the Congressional Research Service. (pdf)

The Players: Given that a cloture vote is set for Monday, it's worth taking a closer look at the Senate Democrats who voted with the Republicans on Friday. Who are they, and what connection (if any) do they have to the telecom industry?

• Ten of the 12 voted in August to give the White House six months of unbridled freedom to tap phones: Evan Bayh (D-IN), Tom Carper (D-DE), Mary Landrieu (D-LA), Claire McCaskill (D-MO), Barbara Mikulski (D-MD), Bill Nelson (D-FL), Ben Nelson (D-NE), Mark Pryor (D-AR), Jay Rockefeller (D-WV) and Ken Salazar (D-CO).
• Four of the 12 are members of the Senate Intelligence Committee (none are members of the Senate Judiciary Committee) : Bayh, Mikulski, Bill Nelson, Rockefeller
• Four of the 12 are up for re-election this year: Tim Johnson (D-SD), Landrieu, Pryor , Rockefeller

All other Democratic Senate Judiciary Committee members voted not to table: Joe Biden (DE), Benjamin L. Cardin (MD), Richard J. Durbin (IL), Ted Kennedy (MA), Herb Kohl (WI), Charles E. Schumer (NY). But only one other Democratic Senate Intelligence Committee member voted not to table: Ron Wyden (OR).

Here are the details on the 12 who sided with Republicans in Friday's vote. Their vote on Monday will be critical to whether or not a filibuster is successful. Pick up the phone and call your Senator now, if he or she is on this list:

1. Evan Bayh (D-IN) 202.224.5623
   Member, Senate Intelligence Committee. Bayh voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has one telecom (Qwest, 19th) in his top 20 contributors. The top industry supporting Bayh is law firms. He was just re-elected in 2004.
2. Tom Carper (D-DE) 202.224.2441
   Carper voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has no telecoms in his top 20 contributors. The top industry supporting Carper is law firms. He was just re-elected in 2006.
3. Daniel Inouye (D-HI) 202.224.3934
   From OpenSecrets: he has two telecomm-related firms in his top 20 contributors (AT&T, 7; National Cable & Telecommunications Assn, 11). The top industry supporting Inouye is law firms. He was just re-elected in 2004.
4. Tim Johnson (D-SD) 202.224.5842
   From OpenSecrets: he has no telecomm-related firms in his top 20 contributors. The top industry supporting Johnson is law firms. He is standing for re-election in 2008.
5. Mary Landrieu (D-LA) 202.224.5824
   Landrieu voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: she has one telecomm-related firms in her top 20 contributors (BellSouth Corp, 17). The top industry supporting Landrieu is law firms. She is standing for re-election in 2008.
6. Claire McCaskill (D-MO) 202.224.6154
   McCaskill voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: she has no telecomm-related firms in her top 20 contributors. The top industry supporting Landrieu is law firms. She was elected in 2006.
7. Barbara Mikulski (D-MD) 202.224.4654
   Member, Senate Intelligence Committee. Mikulski voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: she has no telecomm-related firms in her top 20 contributors. The top industry supporting Mikulski is law firms. She was re-elected in 2004.
8. Bill Nelson (D-FL) 202.224.5274
   Member, Senate Intelligence Committee. Nelson voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has one telecomm-related firm in his top 20 contributors (Comcast Corp, 18). The top industry supporting Nelson is law firms. He was re-elected in 2006.
9. Ben Nelson (D-NE) 202.224.6551
   Nelson voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has no telecomm-related firms in his top 20 contributors. The top industry supporting Nelson is Insurance. He was re-elected in 2006.
10. Mark Pryor (D-AR) 202.224.2353
    Pryor voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has one telecomm-related firm in his top 20 contributors (AT&T Inc, 20). The top industry supporting Pryor is lawyers. He is standing for re-election in 2008.
11. Jay Rockefeller (D-WV) - Rockefeller is the chair of the Senate Intelligence Committee and has indicated he will vote no on Monday
    From OpenSecrets: he has four telecomm-related firms in his top 20 contributors (AT&T Inc, 2; Time Warner, 5; Verizon, 7; National Cable & Telecommunications Assn, 20). The top industry supporting Rockefeller is lawyers. He is standing for re-election in 2008.
12. Ken Salazar (D-CO) 202.224.5852
    Salazar voted in August in support of the six-month grace period making warrantless wiretaps legal. From OpenSecrets: he has two telecomm-related firms in his top 20 contributors (Qwest, 8; Time Warner, 10). The top industry supporting Salazar is lawyers. He was elected in 2004.

Other reading: A History of FISA, Sen. Russ Feingold on FISA, Discussion On US Politics Forum, Greenwald Outlines Why This Immunity Opposition Is Not Business-As-Usual, FISA cloture vote coming up; let’s hope they block it (Tech Talk), On FISA Reform (Swampland, TIME), The FISA Follies, Redux (NYT) , Oops, wiretap disrupted over failure to pay bill (San Antonio Express-News), Judiciary Committee Should Move To Impeach Bush and Cheney (Philadelphia Inquirer)