|Note the Library of Congress's website showing that while almost all of the 2008 appropriations bills funding the government have already passed the House, they are still awaiting Senate votes, and are further awaiting House-Senate conference committee votes. Any Senator can offer a floor amendment to the Defense Appropriations Bill or the Commerce/Justice/State Appropriations Bill banning the use of government funds for warrantless wiretaps. Similarly, any House or Senate lawmaker on the Appropriations Committee can offer an amendment in these bills' conference committees to do the same thing. If such an amendment became law, the warrantless wiretapping program may still remain technically "authorized" by Congress (though unconstitutional, of course), but the White House would be prohibited from actually using it.
This was precisely the strategy then-Rep. Bernie Sanders (I-VT) employed in passing legislation aimed at limiting the Patriot Act. Building a left-right coalition of progressives and libertarian conservatives like then-Rep. Butch Otter (R-ID), he used the Appropriations process - and the rules that allow such riders to be attached to spending bills - to pass his legislation through the Republican-controlled House. Back then, the Republicans used the murky conference committee arena to strip the legislation out of the final bill - but now that Democrats control the conference committee, it would seem that they would have a far harder time doing the same thing to an appropriations rider preventing the Bush administration from violating Americans' constitutional rights.
Undoubtedly, short-sighted, self-declared political "gurus" like Sen. Chuck Schumer (D-NY) would likely oppose such a high-profile move in the same way he embarrassed himself by citing his "red state" candidates as the reason he pushed for reauthorization of the Patriot Act - even though many key "red state" candidates were actually campaigning against the Patriot Act in order to win over libertarian-leaning voters. Schumer displayed a shortsightedness that many Democratic "strategists" cloistered in Washington are afflicted with. They have never understood how to build left-right coalitions, why they are politically valuable, or how to really look strong on national security issues. They operate with the wholly outdated view that Americans automatically equate support for the Iraq War and unconstitutional presidential power grabs as "strength." (Note: Schumer did vote against this latest bill - perhaps he's learned something).
But whereas Democrats have sadly been too afraid to use Congress's power of the purse to stop the War in Iraq, they shouldn't be too afraid to use that power to protect Americans' freedoms. We know for a fact that the FISA courts already have extraordinary tools to process warrant requests (there is even a process to approve them retroactively so as to prevent federal agents from losing precious time in the hunt for terrorists). We know, in other words, that Congress passing an appropriations amendment like the one I've described would merely force the Bush administration to follow a law that does nothing to hurt our national security, and everything to protect our freedoms.
The beauty of this strategy, of course, is that it is available to individual Democrats who are unhappy with how their party's leadership is addressing the issue. Because appropriations bills are brought to the floor under open rules, any lawmaker can offer this amendment. Same thing within the Appropriations Committees themselves. Any appropriator can bring up such an amendment in conference committee.
Additionally, this is a legislative path designed to build momentum. Instead of single random votes like we saw last week right at the end of the session, appropriations bills come along at set times throughout the year. If this defunding amendment doesn't pass Congress this time, lawmakers can try to tack it on to appropriations bills next year...and the year after...and the year after. Each vote starts from where the last vote left off, adding more and more support, pressuring more and more libertarian-leaning conservatives to support it.
I'm not saying that's ideal. I hope the Democratic leadership comes to its senses and refuses to reauthorize the entire warrantless wiretapping program. But if that doesn't happen because Democrats yet again come down with a case of Autoshadowphobia on national security issues, this strategy gives us an alternative to build off of.
So, now's the time to ask: Which House and/or Senate Democrats is going to pick up this strategy and run with it?
UPDATE: For those wondering which House or Senate lawmakers would be most likely to pick up this strategy and run with it, take a look at the House and Senate Roll Call votes. The lawmakers voting "nay" are the ones we should be asking to offer the defunding amendment.
UPDATE II: Kagro X has noted that Rep. Jack Murtha (D-PA) has included appropriations riders on this subject before, but that Bush has ignored them through a signing statement. However, the riders Murtha wrote were extremely broad - prohibiting the use of funds for unconstitutional behavior. Bush easily argued that this program is constitutional as a justification for ignoring the legislation. These amendments, therefore, have to be much, much tighter. They have to focus like a laser on the specific program and appropriations line-items in question so as to make sure there is no wiggle room.