Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

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So much for states-rights and federalism.

From the Post: "Also included in [i.e., slipped in furtively into] the final [omnibus spending] bill was a major provision barring states from enforcing laws that require health care providers, hospitals, HMOs or insurers to pay for, provide or give referrals for abortion."

California, Massachusetts, Illinois, New York -- none of them can make their own reproductive rights policy.

More here from Ms. Magazine.

One of the fringe benefits of the DeLay Rule brouhaha is that it has exposed the sheer level of disorganization, absenteeism and management deficiency that seems to prevail in the 230+ offices that make up the House Republican caucus. Again and again, TPM-reader-constituents would tell us that for days on end staffers were unable to make contact with their given representative. In other cases, messages to contact him or her to find out their vote on the DeLay Rule would again and again go missing. Equally troubling, in many offices the staffer authorized to comment on the DeLay Rule would be 'away from his/her desk' or 'at lunch' for days on end.

One of the most serious cases appears to be the office of Rep. John Sweeney from Upstate New York.

On Thursday afternoon, reader Chris S. told us: "I called the congressman's office this morning and the staffer said he did not know how the congressman voted. I just got off the phone again and was told that the congressman had been in meetings all day and he didn't yet have an answer for me. When he does, I'll let you know."

Early the next morning, though, things seemed little better, according to reader Jeff C.: "Just called Rep. Sweeney's office (NYState) and after being put on hold for 2 mins, told the staffer that normally handles that question is out and will call back." A short time later, Donald Z. did little better: "I was told that the DeLay rule was a closed vote and that no one has had the opportunity to ask the Congressman how he voted. They took my address and said that the office would respond by mail."

By late Friday morning it seemed Rep. Sweeney was nowhere to be found. Brucie R., who had first called Thursday, followed up with his Friday efforts: "I called John Sweeney's (NY-20) office again this morning at 9am. Left an answering machine message and said I'd call again. Did so at 9:30am, asked for Ian, the person I've been talking to, and Ian said that Sweeney was out all day yesterday so that's why he doesn't know yet how he voted, but that he should have an answer 'in a couple hours' -- said he should know 'early afternoon.'" A few hours later a female Sweeney staffer told Bruce: "None of us here know. The Congressman has been busy with the omnibus bill. Ian doesn't know yet either. None of us know. That's what we're telling everyone. Should we call you when we know?" And then before the end of the day Brucie tried one more time: ""We still don't know. We're trying to find out. We have a long list of people to call when we find out."

By the end of the day Friday we could see a definite pattern developing. And our impression got some confirmation when Jon St. gave us a wrap-up of his efforts on Saturday ...

I live in Sweeney's district, and emailed him a couple of days ago asking about his vote on the DeLay Rule. I have received no response. I called the Washington office yesterday morning and was told, after a bit of delay, that "the person who can answer that question for you is out of the office, and we don't expect her back until late afternoon." I called again late yesterday afternoon. It was clear that by that time they had gotten a few calls on the matter, and had a pat answer. They told me (my paraphrase), "We don't know how he voted at this point. He was in a closed voting session all day and we haven't been able to ask him about it yet. Please provide your name, address, and telephone number, and we'll call you as soon as we know." I did provide my contact information, but haven't heard a peep.

By today a few constituents were actually starting to grow worried. TPM reader Casey M. called repeatedly last week and today she wrote in with a rough recitation of how one of her calls went today. We join the call in progress after a Sweeney staffer tells Casey that they still haven't seen Rep. Sweeney ...

Me: Nobody has seen him? Aren't you getting concerned about him? You must be ready to notify police if no one has seen or spoken to him in what, four or five days now?

[staffer]: Well, I don't have an answer for you Casey. Me: Why is that [staffer]? [staffer]: I don't know, I just don't have an answer. Can you hold? Me: Sure. (( crickets )) [staffer]: Cathy? Me: No, it's Casey. [staffer]: Oh, sorry, Casey, I'm going to put you into The Chief of Staff's voicemail and he can get back to you on this. Me: [staffer], why is so difficult to get an answer to a simple yes or no question after five days do you think. I mean, we are through the omnibus bill for now, and that was the reason you gave me last time we spoke. Why is this hard do you suppose? [staffer]: (getting annoyed now). I don't know Casey but I am going to put you into [CoS's] voice mail and you can talk to him. Me: Okay.

[CoS] voicemail: Hi this is [CoS]. I will be out of the office from Nov. 22 through Nov. 26th. Please leave me a message....[blah, blah, blah] -------

Hmmmmmm. Time to call [staffer] back. I call [staffer] back and I am put into her voice mail. I call [staffer] back and speak to [staffer #2]. I tell [staffer #2] that I am trying to call [staffer #1] back because she put me into [CoS's] voicemail and I need to get an answer On hold: trying to transfer. Wow, I got cutoff!! Calling again, I ask to talk to [staffer #1] ... please put me on hold....oops, after three minutes on hold they put me back into [CoS's] voicemail. Oh dear, time to call back. Hi, is [staffer #1] there? I don't mind holding...What [staffer #1] stepped away from her desk? You know, I just called and she was on her phone, and I'm starting to think she's avoiding me....Sure, I can hold ..[wating for four or five minutes...] Casey, it's [CoS], I'll have an answer for you in a minute.

Me: Oh okay [CoS], thanks. So here's the upshot. They called [CoS] on vacation in [vacation place] to get an answer an make sure it was okay to give out that answer. From the staff, it's a yes. Not so much loud and proud, as whispering from a distance. Say, from-Seattle-type distance. Now it was their turn to question me....how do I feel about the matter. I told them, blah, blah, blah, and then debated the staff into a corner and got bored and said I had to go wash my socks. Okay, I made up the socks part, but my three year old conveniently started begging for popcorn, and Motherhood calls. So that's the story.

We hear some local media may be reporting soon that Sweeney's a DeLay Rule man. We'll let you know when we hear more.

Still loud, still proud and still in the Shays Handful.

Arizona's J.D. Hayworth wrote a letter to the editor of the Arizona Republic yesterday ("Board's brush a little too broad") in which he praises their denunciation of the DeLay Rule but takes exception to their "broad-brush approach."

"In the interest of fairness and full disclosure," wrote Hayworth, "I am writing to inform you and Republic readers that when Republicans met in conference last week to discuss the rules change, I spoke passionately in opposition to the proposal, voted against it, and voted against the final package of rules that included the change."

As we noted earlier, the latest story seems to be that Rep. Istook not only claims that the LPFKI was drafted by IRS personnel but that neither he nor his staff were the ones who asked them to write it.

Late this afternoon TPM spoke to IRS spokesman Terry Lemons, who provided us with the following statement: "The Commissioner [Mark W. Everson] was unaware of this provision until after it was already approved. He strongly supports the measure being deleted from the final bill."

Lemons said the IRS had commenced an internal inquiry into the origin of the provision at the behest of Sen. Kent Conrad.

Now, earlier this afternoon a TPM reader wrote in to say that he found it unlikely that Appropriations Committee staffers would not be aware of the sensitivity attached to tax return confidentiality or the fact that the plain language of the LPFKI (as per this afternoon's post, this is our acronym for the Legislative Provision Formerly Known as Istook) gives the chairs of the appropriations committees carte blanche to review them.

More to the point, though, he found it extremely implausible that IRS personnel would draft the language in the way that they allegedly did unless they were given specific guidance to do draft it in such an expansive fashion -- and perhaps not even then.

I quote from the reader's email, where he notes the basis of his skepticism ...

This is not because the IRS are good guys but because it would very strongly go against their bureaucratic interest. First of all it is a giveaway of power -- one does not draft something to give away more of one's exclusive power than absolutely necessary; and this is an exclusive right that the IRS has on a very important and indeed explosive subject. It's the IRS's official position that the assurance of confidentiality is critical to keeping taxpayers honest in filing returns. The tax system, as has often been pointed out (most notably by Justice Robert Jackson) relies almost entirely on voluntary compliance. Once the word got out that your tax returns might be inspected by Congress, many people would not want to be honest, and, more importantly, many more would use that as an excuse not to be honest.

I'm no expert on the IRS. But I do know a bit about Washington bureaucracies. And what this TPMer says at least sounds on the mark to me. It seems quite unlikely that an IRS staff attorney, asked simply to provide language authorizing senior appropriations committee staffers to conduct visits to IRS facilities in the course of their oversight duties, would produce language of such breadth.

But that's what Rep. Istook says. But then, how would he know, since he says he didn't have anything to do with asking them to write it?

Breaking News !!!

We seem to have our first case of a TPM-reader-constituent who's represented in Congress by a DeLay Rule letter-writer and has now received his letter.

Further updates as the story develops ...

Hmmm. Exit polls showed opposition leader Viktor Yushchenko heading toward victory in Ukraine over current Prime Minister Viktor Yanukovych. But now that the official results are in, Yanukovych holds what the Post calls an " insurmountable three point lead."

Says the Post: "Tens of thousands of people flooded Independence Square in the capital Monday amid calls for a general strike or even the kind of revolution that toppled regimes in Serbia and Georgia after suspect elections."

Okay, now for the trivial but funny.

The standard line, true or not, is that grand juries are such pushovers that a good DA can get an indictment against a ham sandwich.

But a TPM reader (SL) points out that in his comments in defense of Tom DeLay to the Anniston Star on Thursday, Rep. Mike Rogers seems to be arguing that the problem is actually rogue ham sandwiches securing indictments against well-meaning politicians like Rep. DeLay.

As we noted earlier, but without apprehending their full comedic value, Rogers told the Star, "I’m an attorney, and any attorney knows you can get an indictment with a ham sandwich. We’re trying to raise the standard, to make it so that you don’t allow what is purely a political indictment to make someone step aside from a leadership role."

Does Ronnie Earle have a ham sandwich with Tom DeLay's name on it?

I'm a little confused about the <$Ad$>current explanation of the origins of the Legislative Provision Formerly Known as Istook (LPFKI).

Sen. Frist originally said it was inserted by Rep. Istook. The Times reported yesterday that Istook "was responsible for the insertion of the tax provision in the 3,000-page, $388 billion legislation."

And in his statement yesterday Istook appeared to concede this, while asserting that the actual language was drafted by personnel from the IRS.

Today, however, Rep. Istook seems to be saying that he had no involvement in the matter whatsoever. From his statement this morning ...

"I want to reiterate what I said on Sunday, namely that this was not my language. I then spent most of the day tracking down what happened.

"I had nothing to do with inserting this language. I never knew what was happening until it was done. Had I known, I would have intervened to omit or to fix this provision.

"I didn't write it; I didn't approve it; I wasn't even consulted. My name shouldn't be associated with it, because I had nothing to do with it, and didn't even know about it until after the bill was done and was filed."

Now, I'm not trying to be nettlesome or willfully dense. But even if we take as granted the basic outlines of the current account (namely, that Appropriations committee staffers wanted some language empowering oversight and folks at IRS wrote it too broadly), something seems missing.

Somone on the committee wanted more oversight power or wanted that power more clearly defined in legislation and asked the IRS for the appropriate language. Was that not Istook or one of his staffers?

In his statement Istook seems to suggest [but murkily] that "appropriations [committee] staff" had the language put in and that he, as chairman of the relevant subcommittee was "bypassed."

If he and his staff had nothing to do with it, who did exactly? And what did they tell the folks at the IRS that they wanted? Because clearly the language is specifically written to allow inspection of tax returns without reference to existing privacy laws.

Is the LPFKI really not tied to Rep. Istook in any way?

And isn't it about time someone talked to whomever at the IRS provided the language?