With today's fairly stunning (though not shocking) comments from AG Gonzales on habeas, it's worth running down the legislative strategy for restoring this basic tenet of the American legal system. First of all, this is a core base issue. Among others, Moveon went out today with an email on the Habeas restoration, and as the Times has noted, there are half a dozen bills on habeas floating around the House. The key to successfully moving this through Congress is to show that there is a majority on habeas with a floor vote, and then use that show of strength to attach a habeas restoration to one of any number of 'must-pass' legislative vehicles.
The DoD Authorization is one such vehicle, though there are many others, such as various Appropriations bills and Budget bills. To see an example of how this works, consider the difference between passing a stand-alone withdrawal timeline versus attaching it to a funding bill. If we wanted to put withdrawal timelines alone through Congress, they could be stopped by the House, the Senate, or Bush, easily. But when these timelines are attached to a larger vehicle, money the troops need, lots of on-the-fence members voted for something they wouldn't were it a stand-alone bill. This is actually a standard legislative tactic, and why crushing net neutrality was thrown into a large telecom reform bill last cycle which had some stuff we actually like (like cable competition). At the end of the day, of course, the President has to sign these bills for them to become law, so there's always the veto threat. This is why bills often tend to take more than one Congress to pass. For instance, the Bankruptcy Bill was coming up regularly in the late 1990s, and only passed in 2005. Habeas restoration could be on a similar track.
In this cycle, though, what legislative strategy we chooses hinges on the need for a majority of members to vote for a restoration of habeas. It's unclear that there is in fact a majority. There are 34 Democrats who voted for the Military Commissions Act under intense GOP pressure, and presumably some of them can be moved to vote for a restoration of habeas with leadership arm-twisting on the other side. We got 168 votes against the MCA, which means that we have to build 50 more votes to get to a majority of 218 votes. We picked up 30 seats in the 2006 election, flipped from Harold Ford to Steve Cohen (and Sherrod Brown was replaced), and there are 7 Democrats who didn't vote. So starting from the very peak of possibilities and assuming that all the newly elected Democrats are yes votes (a strong assumption), we are at 206 pro-habeas votes. That's 12 short of a majority, though it's more like 20-25 short of a majority considering we'll probably lose a few Blue Dogs and some Republicans who were with us last time.
So that's where we are. 20-25 votes short of a pro-habeas majority. Here's a list of the 34 Democrats who voted for the Military Commissions Act. These are the members to work on, and you'll recognize a bunch of them from earlier, um, problematic positions.
Robert Andrews, John Barrow, Melissa Bean, Sanford Bishop, Dan Boren, Leonar d Boswell, Allen Boyd, Sherrod Brown, Ben Chandler, Bud Cramer, Henry Cuellar, Artur Davis, Lincoln Davis, Chet Edwards, Bob Etheridge, Harold Ford, Bart Gordon, Stephanie Herseth, Brian Higgins, Tim Holden, Jim Marshall, Jim Matheson, Mike McIntyre, Charles Melancon, Michael Michaud, Dennis Moore, Collin Peterson, Earl Pomeroy, Mike Ross, John Salazar, David Scott, John Spratt, John Tanner, Gene Taylor
First of all, let's note that that's a lot of dudes. My gender is laaaame. Ok, second of all, it's pretty clear that voting for Habeas is not a flip-flop against the MCA, since they are different bills, and momentum from leadership can move some of these votes. Third, Ike Skelton, who is a very conservative Democrat, is committed to the restoration of habeas corpus, which is helpful in terms of convincing a lot of these members that they aren't solely associating with liberals here.
Early next week, it's being reported that Tauscher and Skelton are going to 'drop a bill' restoring habeas. It's not clear what this bill will say, and if it will be as strong as Nadler's bill. What will happen is that this is going to go through both the Judiciary and Armed Services Committees before hitting the floor. The timing for this to go to the floor is in June at the earliest, since floor time is tough to come by. The move for a habeas restoration in the DoD Authorization was a quick attempt to stick the bill that looks like it failed, though it's still possible to bring the habeas restoration amendment to the floor during the DoD authorization debate. It wasn't done openly, but you can read the code in the editorials in the NYT and the Washington Post. The insiders were in the know.
There are lots of strategic openings with habeas, and lobbyists and different player are trying different tactics. Some of them are open and many of them are not. There are different rumors flying around, some of which pan out and some don't. What I heard on Tuesday from a well-placed source, while not inaccurate, was certainly out-of-date by the time she told me. That's why I wrote at the time that it was an outside shot.
Long story short, here's the essential roadmap, along with our role. It's never entirely clear how to move something through Congress. There are 435 members and thousands of people involved. We need to take advantage of every single opportunity to put pressure on our members. There are times when legislative changes can be snuck into bills, and if members know that they have felt pressure on a related issue, they will be more likely to sneak our stuff in there or look out and object to bad stuff being put in there.
I have one other observation. Sometimes we'll need to put pressure on Blue Dogs, but sometimes we'll need to put pressure on progressives. Some progressives will just not vote for certain types of legislative vehicles, like the DoD Authorization, because they don't want to legimitize our use of the military. The 37 members that voted 'no' in 2006 for the DoD Authorization bill are after the flip. Most of these members understand and will vote for something like the DoD Authorization if it has a habeas restoration in, but we need to make sure that they do in fact do this. This DoD Authorization bill has some good stuff in it, like Walter Reed changes, cuts in missile defense, and global warming initiatives, and it may get vetoed regardless. But the squeeze between progressives and Blue Dogs is a tight one, and will have to be managed for most important bills going through Congress.