Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

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A short note about the vote. The DeLay Rule vote, that is.

A number of congressmen (no congresswomen yet) are now telling their constituents that there's no question to answer because the DeLay Rule never came to a vote. (Staffers from Congressmen Tom Davis and Tom Feeney offices have both used this line, according to TPM readers.)

Nice try.

As we noted earlier, the rule was put to a voice-vote in the GOP caucus meeting. That means they asked for yeas and nays. And the yeas had it.

So it's true that there was no recorded vote. So there's no truly definitive way to know one way or another what a particular representative did unless they conspicuously said one thing or another and other members saw them say it.

All we really have to go on is how they say they voted.

Based on published accounts of members in the meeting, the number of 'nays' has been described as anything between a "handful" of members to between 30 and 50.

As we've already noted, it seems there are more members who now claim to have been in the Shays Handful than anyone saw voting 'nea' at the meeting. But what can you do?

In any case, the relevant point is that there was a vote. It wasn't recorded. There's no official tally. But everyone who was there was asked to say yea or nea. Why shouldn't they be willing tell their constituents what they said?

One final note: If your member of congress tells you there wasn't a vote, ask them whether those in the Shays Handful are lying when they say they voted against it.

Arizona round-up ...

Jeff Flake -- letter-writer.

J.D. Hayworth -- Credit where credit is due. Hayworth is a real 'winger. But he's in the Shays Handful. He even spoke against it in the meeting. Say it loud, say it proud, J.D.!

Jim Kolbe -- Apparently a letter-writer.

Trent Franks -- I'm willing to give this guy props. He voted for the DeLay Rule. But he says so prominently right on the front of his website. He's not hiding.

No word yet on Reps. Renzi and Shadegg.

Late Update: We've now gotten word back on Rep. John Shadegg. He's taking the 'private vote' line.

As of 2:30 PM this afternoon we've had TPM readers contacting quite a few Republican members of congress about how they voted on the DeLay Rule. And it seems fair to say that aside from members of congress from tomato-red districts, a very large percentage of Republican representatives find one way or another of not answering their constituents when they ask how their rep. voted.

Whether it's Pennsylvania's Jim Gerlach, whose office won't say how he voted, or Roscoe Bartlett in Maryland, who also won't say, most just find some way to dodge the question or insist the answer is private.

Apparently there's one Republican rep. from Florida who claims a vote never even took place. We'll follow up on that and report back if we hear more.

More to follow shortly.

The Manchester Union Leader is reporting that both New Hampshire reps., Charlie Bass and Jeb Bradley are part of the Shays Handful.

Bass seems to be making comments to the press while Bradley is trying to lay low. But both are in the Shays Handful.

[ed. note: If the 'handful' is starting to look rather large to you, yes, we've noticed the same thing. It has occurred to us as well that there may be a slight discrepancy between those who voted for the DeLay Rule and those who are willing to admit they voted for the DeLay Rule. But then, as we've seen, exit polls sometimes do not match up with the actual tally.]

Late Update: Pennsylvania's Phil English also seems to be a letter-writer.

More news on the DeLay Rule.

It turns out that all three Republican members of congress from Connecticut (Rob Simmons, Christopher Shays and Nancy Johnson) are members of the Shays Handful, according to this article in the Hartford Courant.

But neighboring New York seems like a different story. TPM readers have been told that Rep. Sherwoood Boehlert has a policy of only discussing his position on the DeLay Rule in letters to constituents. Rep. Sue Kelly and James Walsh are keeping mum. And Rep. John McHugh seems to be a letter writer as well.

Let us know if you've heard from your New York Republican rep. We're hoping at least one of them is in the Shays Handful.

Late Update: After several refusals to answer to TPM Readers, a staffer for Virginia's Tom Davis is now putting him in Shays Handful. We'll wait for more definitive word about Davis.

Well, we've been getting all sorts of reports from readers about how their representatives voted on the DeLay Rule. First, we should announce that we've found two new members of the Shays Handful. The first is Mark Kirk of Illinois. The second is a possible member. A staffer for New Hampshire's Charlie Bass told a TPM reader that he opposed the DeLay Rule. But, as yet, I have not seen his opposition noted in any published report.

What we're hearing a lot of are cases where the Rep. in question either says the vote was private or their staffers claim not to know how they voted. Interestingly enough, there seems to be a high correlation between these responses and whether the member is a moderate and/or in a swing district. We're also getting a slew of reports of members who will only respond to constituents in writing about whether they supported the DeLay Rule.

Staffers for Rep. Judy Biggert of Illinois have so far pulled off a trifecta, managing to give different readers each of the three versions of no answer noted above.

We'll bring you more shortly.

One final point: We already have our name for the folks who bucked DeLay and are willing to say so publicly. They're the Shays Handful. But what do we call the Reps. who are afraid to tell, or refuse to tell, their constituents how they voted? Send us your suggestions.

Late Update: So far, I think the best bet is to call them the Shamed Handful, but I'd like to do better.

One final thought on the DeLay Rule passed on Wednesday in the House GOP caucus.

The Republicans' argument for passing the DeLay Rule is that Travis County DA Ronnie Earle is on a partisan witch-hunt against DeLay and that all they're doing is taking steps to prevent Democrats from dictating the leadership of their caucus.

DeLay himself says that Earle is "trying to criminalize politics and using the criminal code to insert himself into politics." And to further this argument his lieutenants have enlisted members of the caucus to make various defamatory remarks about Earle. New York's Peter King calls him a "runaway prosecutor." (DeLay earlier called him a "''runaway district attorney''; so presumably King got it from him.) Henry Bonilla of Texas calls him a "partisan crackpot district attorney." There are many other examples.

So DeLay is getting members of the Republican caucus to accuse Earle of being an unethical district attorney and pursuing a prosecution to advance a political agenda.

Now, is there any evidence of that?

In Texas, the DAs are elected, not appointed. And Earle is a Democrat. Because his jurisdiction includes Austin, the state capital, his office runs the state's Public Integrity Unit, which gives him jurisidiction over this case. But that's the system in Texas. Earle's been in office since 1976. And his website lists various awards he's won that seem to show that he's held in high regard by fellow DAs. But of course, who knows what these awards mean?

The Times profiled Earle recently and this is the graf most revelant to our question ...

''The only people I antagonize more than Republicans are Democrats,'' Mr. Earle said later. He said the record showed he had prosecuted 12 Democratic officials and 4 Republican officials, although for much of his time in office, he acknowledged, Republicans were on the outs. ''We prosecute abuses of power,'' he said, ''and you have to have power to abuse it.''

So let's open it up. Does Earle have a history of more aggressively prosecuting Republicans than Democrats? Are there valid arguments that the indictments already handed down against the three DeLay aides are legally questionable? Or does Cong. DeLay just think he's above the law?

Nancy Pelosi (D-CA) criticizes the DeLay Rule: "Republicans have reached a new low. It is absolutely mind-boggling that as their first order of business following the elections, House Republicans have lowered the ethical standards for their leaders."

Trent Franks (R-AZ) on why the old rule wasn't right: "In my sincere opinion, it [the possible indictment of DeLay] only provoked the timing. When you look at the rule, it is an outrageous rule."

Denny Hastert (R-IL): DeLay Rule "fair and equitable"; voting for DeLay Rule a "a good decision."

Henry Bonilla (R-TX): DeLay Rule "takes the power away from any partisan crackpot district attorney who may want to indict" House leadership.

Kevin Brady: (R-TX): DeLay Rule is "a recognition that the rules of politics have changed. The courts and judges and prosecutors are all now part of what used to be the voters' decision. We're in an ugly world."

Pravda: "The controversy surrounding DeLay does not seem to have dented his considerable power. He is credited with helping Republicans increase their majority in the House in this month's elections and many Republican lawmakers feel indebted to him for his fund-raising prowess."