In it, but not of it. TPM DC

The Minnesota election court today heard a series of contentious oral arguments, with the decisions likely to have a huge impact on the future of this case.

First up, let's take a look at the Coleman campaign's motion to declare that "Rule 9" -- the set of procedures that the campaigns created for counting original damaged absentee ballots, rather than the duplicates made on Election Night -- was illegal. The Coleman has maintained that human errors in the labeling of duplicates and originals resulted Franken gaining an illegitimate gain, that votes were counted twice.

Lead Coleman lawyer Joe Friedberg argued that the rule created by the Coleman campaign was illegal, overriding the interests of the voters, and pointed out how the Secretary of State's office didn't want to go along. "And the Secretary of State abdicated his function by allowing two political parties to set aside a statute that was not designed for their benefit in the first place," he said. "You can't do that."

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It's often tempting to dive into the GOP's noisy crusade against earmarks, if only to point out the unabashed hypocrisy of lawmakers like Senate Minority Leader Mitch McConnell -- who watched many in his party decry the earmarks in this year's $410 billion spending bill while securing a nice bit of cash for his own home-state projects.

And on the topic of shooting fish in a barrel, Senate Minority Whip Jon Kyl (R-AZ) was pretty exercised about earmarks today on Fox News:

Now is not the time to be earmarking a lot of this money. People don't mind paying taxes and they understand the government needs to be run, but they hate to see their money wasted. So that's a second reason for opposing [the bill.

...

Well, I suspect there will be some that vote for it. Some like these earmarks, for one thing.


And Kyl would be one of those who likes earmarks. He secured $5 million in funding for solo earmarks in the bill, along with $25.8 million for joint earmarks with other lawmakers, according to a database assembled by the non-partisan Taxpayers for Common Sense.

Or as Kyl told the Washington Examiner this week, "Anything I have in the bill, I have a reason for."

The Minnesota Supreme Court just handed down their opinion on Al Franken's lawsuit to force the state to issue him a certificate of election -- and it's a unanimous No:

It is our legislature that is charged by both the federal and state constitutions with the authority and responsibility to fashion the processes for the election of United States Senators from Minnesota. The legislature has done so and has clearly chosen not to authorize issuance of a certificate of election until an election contest is completed. Franken has failed to establish that either the United States Constitution or federal statutes mandate the issuance of a certificate of election immediately. In the absence of such a mandate, overturning a legislative choice in order to maintain comity with a federal scheme is not within our judicial powers.


The remaining question, then, is when does somebody get a certificate? When does a "court of proper jurisdiction," as the law terms it, decide the case? The court cites prior case law declaring "the term 'proper court' in the same section applies to the state court which is given jurisdiction." This appears to suggest that a certificate could be issued after this goes through state court -- and not an onerous federal appeals process as the state's solicitor general said during oral arguments in this case.

However, the possibility would still exist of federal appeals placing an injunction against issuing a certificate -- so who knows.

This line has to be the cruelest cut for Franken. The opinion also says that Franken is not being hurt by the lack of a certificate -- the Senate can seat him if it wants:

In other words, if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so. We cannot conclude, therefore, that the Minnesota Legislature's choice to defer issuance of a certificate of election until the full state election process has run its course unconstitutionally usurps the Senate's authority.


Of course, Senate Republicans are saying they'll block any attempt to suspend the rules and seat Franken without a certificate, even if theoretically the Senate has the power to do so. Remember all that fuss the Democratic leadership made over Roland Burris, demanding that everything be checked out on his credentials? Oy.

Team Coleman has just filed their formal opposition to the Franken campaign's motion to dismiss all of the various counts in the Coleman lawsuit, demonstrating a fundamental disagreement going on here: Team Franken insists that Coleman is bound to a much higher standard of proof than the Coleman lawyers say.

Check out some highlights, after the jump.

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Justice Ruth Bader Ginsburg is responding to Senator Jim Bunning (R-KY), without naming him directly, over his recent prediction that she would be dead from pancreatic cancer within nine months.

In an interview with USA Today, Ginsburg explained why she made sure to attend President Obama's speech to Congress last week. "First, I wanted people to see that the Supreme Court isn't all male," the lone female justice said of the evening event Feb. 24. "I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months."

Bunning made his remarks while speaking to a local GOP event back home in Kentucky, in explaining the importance of his commitment to appointing conservative judges, and how this would be an issue soon.

Josh observed earlier that the International Swaps & Derivatives Association was one of the major lobby groups helping to ensure that derivatives contracts got special repayment privileges from creditors under the 2005 bankruptcy bill. Which got me wondering ... the ISDA must be shaking in its loafers over the possibility of stronger regulation passing Congress this year. Which D.C. lobbyists are in their corner?

Here's what I found: a healthy $1.9 million in lobbying spending for 2008, more than twice as much as embattled bank UBS and comparable to the lobby bills of Credit Suisse, one bank heavily tied to derivatives trading and other complex financial instruments.

The lobbyist lineup for ISDA looks like a staff alumni list for top GOPers (and a few Dems):

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All signs are pointing to an accommodation of the standoff over Cuba policy that jeopardized a few key votes on the $410 billion 2009 spending bill (and trapped a couple of science nominations in limbo).

Treasury Secretary Tim Geithner is reported to be working with Sen. Robert Menendez (D-NJ) to assuage his concerns that elements of the spending bill would excessively relax the trade embargo against Cuba. But interestingly enough, another senator with identical concerns over the Cuba language, Bill Nelson (D-FL), was prepared to vote for the spending bill last night*, his spokesman told me.

The key for Nelson was not removing the Cuba provisions at issue, but rather "making sure they don't have unintended consequences," Nelson spokesman Dan McLaughlin said.

The apparent disconnect between Nelson's and Menendez's positions notwithstanding, here's the skinny on what specifically alarmed the senators.

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Is this the end for Jeff Frederick, the colorful (and bungling) Virginia Republican Party chairman? NBC reports that state GOPers are mobilizing to try to fire him at the next state committee meeting, due to the various misfortunes the state GOP has suffered over the last year.

It will be tough, though, as the rules require a three-quarters vote to oust a chairman in midstream. However, they do appear to have some momentum, as the Richmond Times-Dispatch reports that the move has been essentially endorsed by the de facto Republican nominee for governor this year.

Frederick is perhaps best known now for Twittering an announcement that a Democratic state Senator was about to switch parties and give the GOP control -- a misstep that was blamed by some for derailing the whole scheme, though the claim of any deal has been denied by the Dem legislator in question.

But Frederick's also done a lot more than that, too. Back in October, he famously compared Barack Obama to Osama bin Laden, while briefing campaign volunteers on the talking points they could employ while going door to door.

It didn't help, apparently: Not only did Barack Obama carry Virginia -- the first Democrat to do so since the 1964 LBJ landslide -- but Dems also knocked off two incumbent House Republicans and picked up another open seat, and gained a Senate seat in a landslide.

The WSJ has a great piece today on the troubled history behind the Food and Drug Administration's approval of Menaflex, a medical device intended to help heal injured knee tissue.

The FDA ended up approving the device under fast-track rules after two of its staff scientists turned down Menaflex, thanks to an "aggressive" and "adversarial" lobbying effort by its maker, ReGen Biologics, according to the Journal. And New Jersey's congressional delegation lent a hand as well:

After the FDA's second rejection of fast-track status, in September 2007, ReGen asked lawmakers from New Jersey, its home turf, for help. Supporters included Democrats Sen. Robert Menendez; Rep. Frank Pallone, chairman of the Health Subcommittee of the House Energy and Commerce Committee; Rep. Steve Rothman of Hackensack; and Sen. Frank Lautenberg.

Messrs. Menendez, Lautenberg and Rothman signed a letter to the FDA in December 2007 asking for Dr. von Eschenbach, the FDA commissioner, to review the issue personally. Mr. Menendez talked with the commissioner by phone, his office said.


Later in the story, we hear from a ReGen lobbyist, Michael Hutton, who talked about the device company's very specific criteria for scientists who would sit on the panel evaluating Menaflex for fast-track approval:

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The slowdown in approval of President Obama's economic team, both at Treasury and the Council of Economic Advisers, is getting a lot of attention today. But let's not forget that two senior White House science adviser-designates are still going nowhere: John Holdren, named to lead the Office of Science and Technology Policy, and Jane Lubchenco, named to head the National Oceanic and Atmospheric Administration, remain in limbo.

The likely source of the culprit would seem to be the Senate Commerce Committee, although that panel approved the nominations last month. "I am unaware of any GOP Commerce Committee members who are raising questions," one Senate source said via email.

But other sources pointed me to Commerce -- so just in case, I reached out to all the Republicans on that committee. The next likely source of the slowdown would be GOPers on the Senate environment committee, particularly given Holdren's progressive views on climate change, but Sen. Jim Inhofe's (R-OK) office did not return a request for comment on the nominations.

Rest assured, however, that we'll stay on this story.

Late Update: A source close to the situation, speaking on condition of anonymity, said that there is, right now, no hold from Menendez on the nominees. It remains unclear when the hold evaporated -- sometime between the WaPo's original report on Tuesday and today, it seems. But either way, the nominees would have been quickly cleared if Menendez were the only original objector. So the search goes on...

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