“Civil Unions are clearly an important issue to the people of Colorado. This bill deserves to be debated by all 65 members of the State House,” said House Minority Leader Sal Pace, D-Pueblo. “I call on Speaker McNulty, Judiciary Committee Chair Rep. Bob Gardner and the House Republicans to join House Democrats in sending the bill to the full House so that civil unions can have a robust debate and a straight up or down vote. Coloradans deserve that much.”

Denver Senator Pat Steadman introduced SB 172 in February. The bill would grant gay couples extended domestic partnership rights.

Gay couples are prevented from marrying by Amendment 43, passed in 2006, which defines marriage as a union between one man and one woman. Under current laws, gay couples can’t draw on each others’ health insurance or death benefits. There are also legal and financial hurdles they have to jump to secure the right to make medical decisions for one another and to plan their estates and to adopt children. There are no effective laws by which they can arrange for alimony or child support or visitation. Gay partners can’t visit each other in jail and they can be made to testify against one another in court.

Many straight senior citizens drawing benefits from deceased spouses would also like to take advantage of the legal rights and responsibilities that would come with civil unions.

Steadman’s law has drawn out strong supporters and detractors among the public. It has become one of the high-profile media stories of the legislative session and has gained traction among Republican lawmakers as a way to advance individual liberty and responsibility and support families and children.

Surveys have demonstrated that 72 percent of Coloradans support civil unions as a matter of fairness. A 2010 Greenberg, Quinlan, Rosner poll found that 61 percent of Republicans favor civil unions.

Yet a simple majority of votes on the eleven-member House Judiciary Committee could kill the bill, preventing it from moving to the House floor for consideration. Judiciary Committee Republicans, mostly strong faith-based social conservatives, have said they will give the bill a fair hearing. The bill is scheduled to be heard before the committee Thursday afternoon.

“Enacting Civil Union legislation would provide committed Colorado couples – gay and straight – with the legal protections they need to take care of the ones they love. The bill will also give important protections to the children of gay and lesbian couples,” said House sponsor Mark Ferrandino, an openly gay Denver Democrat.

Ferrandino told the Colorado Independent last week that the fact that the bill drew three of fifteen Republican votes in the Senate and that House Republicans have already gone on record in support of the bill argues strongly in favor of bringing the bill before lawmakers for a roll call vote. Republicans hold a one-seat majority in the House.

“Civil Unions are supported by a vast majority of Coloradans… [The bill] received bipartisan support in the Senate. It is clear that now is the right time to provide committed couples with the tools they need to take care of and be responsible for their families and each other.

“We’re your sons and daughters, your coworkers and your neighbors,” Ferrandino said in a House Democratic caucus release. “We’re taxpayers, business owners, and members of every community across this state. This is an issue of fairness and justice and deserves to be given a full and fair debate by the entire House.”

[ Image: Mark Ferrandino ]

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As expected, Denver Senator Pat Steadman’s bill passed out of the Democratic-controlled Senate late last week. With all of the Senate Democrats signed on as co-sponsors, their support was a foregone conclusion. Yet the bill picked up the support of three moderate Republican lawmakers whose opinions about protecting families and securing individual rights and liberties clashed with their colleagues’ views about the threat the bill posed to traditional one-man-one-woman marriage.

“Fundamentally, as a Republican, what I have to look at is: Does [this bill] fit my core beliefs?” said Durango Republican Ellen Roberts last week, leading GOP support for the bill in the Senate. “I believe strongly in protecting individual core rights and liberties.”

Berthoud Republican Kevin Lundberg led the GOP opposition. “Marriage is not an institution that anyone of us in this room has established. Indeed, it is the Supreme Ruler of the Universe who established it,” he said, warning that passing the bill would lead Colorado to “abandon the family unit as a foundation of human society.”

On the ground

A recent ABC News/Washington Post poll found that national support for gay marriage is now at 53 percent, with solid Democratic and Independent support. Although the poll found that Republicans support gay marriage at only 31 percent, that’s an uptick of 8 points since 2006. What’s more, support for civil unions is much higher among all these groups than is support for gay marriage.

In libertarian-leaning Colorado, it’s no surprise that support for civil unions among Republican and Independent voters is high. A 2010 poll commissioned by gay rights group OneColorado and conducted by Greenberg Quinlan Rosner showed that 61 percent of Colorado Republicans and 84 percent of Colorado Independents support civil unions. Independent voters make up a third of the electorate in the state.

“Support for civil unions is emerging as a mainstream position in the Republican Party,” said Brad Clark, executive director at gay rights group OneColorado. “More and more, conservative leaders are recognizing that civil unions for gay and lesbian couples adheres to a core conservative principle: the less intrusion into personal liberty the better.” Clark was referring to local leaders like Senator Roberts but also to national figures like Dick Cheney, Laura Bush and Cindy McCain.

On the committee

The members of the Republican majority bloc sitting on the House Judiciary Committee don’t seem like the kind of conservatives who would be persuaded by Laura Bush or Cindy McCain, however. Nor do they seem to much reflect civil-unions-friendly Colorado.

Three of the six committee Republicans are Colorado Springs social conservatives, and Loveland Rep. B.J. Nikkel was once an aide to arch social conservative Colorado Congresswoman Marilyn Musgrave.

Nevertheless, consistent media coverage of the debate in the legislature over the bill, clear shifting Republican- and moderate-voter opinion on the issue across the state and the bipartisan Senate support for the bill may have an effect.

“The Senate vote clearly gives the bill more momentum,” Democratic House sponsor Mark Ferrandino told the Colorado Independent. “That’s 20 percent of the [Republican] caucus. That makes a strong case for a full floor vote in the House.”

GOP House Speaker Frank McNulty has said on several occasions that he is committed to giving the bill a fair hearing. Ferrandino has also said he believes he has enough Republican votes to pass the bill in the House and Republican representatives have begun to go on record as supporters.

On Friday, most of the GOP members of the Judiciary Committee told the Denver Post that, like McNulty, they’re also committed to “giving the bill a fair hearing,” even if they are personally opposed to civil unions.

Committee Chairman Bob Gardner, R-Colorado Springs, told the Post he opposes civil unions but that he is “certainly hearing from both sides” on the issue.

Rep. Mark Barker, R-Colorado Springs, said he also was committed to a fair hearing, before adding that he was a Southern Baptist.

Nikkel said she hadn’t read the bill but of course she would also give it a fair hearing.

On the family

Ferrandino told the Independent the family argument is the one that’s gaining traction with House Republicans.

“It’s the eloquent case Ellen Roberts made on the [Senate] floor for the bill that will sway them,” he said.

Roberts said Steadman’s bill reckons with the reality that unmarried gay and straight Colorado couples are committing themselves to one another and raising families. She said that, based on her experience as an estate and divorce attorney, she believes the state government has left glaring holes in the laws intended to govern family life. Unmarried Colorado partners, gay and straight, should be able to draw on insurance policies and collect worker compensation, for example, they should be able to arrange for alimony and child support and make official child custody and visitation arrangements.

Ferrandino said House Republicans wouldn’t be persuaded by gay-rights libertarian arguments. “Nah, that won’t do it,” he said.

“It will come down to the fact that this bill adds important protections for families. When you look at civil laws, they’re there to protect kids.”

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ICE removals are at a record high this year, but Republicans still accuse the Obama administration of lax enforcement. In their defense, administration officials have insisted their policies reflect a commitment to using resources to prioritize removal of the most dangerous undocumented immigrants. ICE Chief John Morton has said current funding allows for about 400,000 illegal immigrants to be deported each year. Republicans contend the administration never asked for more money.

“ICE has cited a lack of resources as one of the reasons for its prioritization of cases and for its selective enforcement,” Republicans on the Senate Judiciary Committee wrote to Homeland Security Secretary Janet Napolitano on Oct. 21 . “But to date, we have not seen any efforts by ICE, your Department, or the Administration to request an increase in ICE funding. … As a result, it appears that your Department is doing the very thing that we have raised concerns about in several letters – allowing illegal aliens to evade the law.”

Mark Krikorian, executive director of the Center for Immigration Studies, told TWI he thinks the House could try to give ICE more funding even if the agency does not request it. “When the administration asks for money for detention beds, I could see the House giving them more than they request,” he said.

Of course, any increase in funding in the current economic climate could be difficult, and it’s possible Republicans wouldn’t even go down this path given their statements on reducing spending. But if Republicans were able to find a way to pay for the bill, it is possible the White House would accept the funds, given insistence from ICE that it deports as many illegal immigrants as possible given its funding.

But Gutierrez, an outspoken supporter of immigrants’ rights, has a different motivation for supporting hearings: he thinks Republicans are posturing and wants Congressional leaders to “call their bluff“:

Imagine a United States where every birth initiates an investigation to determine the citizenship and immigration status of each parent. Let’s have the hearing so we can take careful notes when the Republican’s witness explains how this government intrusion into maternal and child health — burdening our health care system and discouraging pregnant women from seeking medical care (while perhaps discouraging claims of paternity) — is justified to secure our borders and protect the core liberties of America. I would love to hear the opening remarks of Judiciary Committee Members Lindsey Graham in the Senate or Lamar Smith in the House broadcast live from coast-to-coast on C-SPAN. I can hear it now. “Mr. Chairman, I would like to express my support for a full federal background check and proof of citizenship for every precious human life.”

Republicans have been accused of using the issue to win support from voters, as but as Gutierrez argued, it’s not necessarily a winning political statement. Still, it doesn’t look like many Democrats will be joining Gutierrez in his effort: Sen. Russ Feingold (D-Wis.), chairman of the subcommittee that would theoretically look into the issue, shot down the idea of hearings to The Plum Line today.

Today’s Kagan files are broken up with headings sure to appeal to GOP lawmakers and aides eagerly awaiting a “smoking gun”-type revelation that could complicate her upcoming confirmation hearings. More than a dozen bundles of files deal with abortion, and another half-dozen touch on gun ownership issues.

But at least one Senate Republican didn’t need to wait for this afternoon’s Kagan documents to draw his own conclusions.

In a morning statement, Judiciary Committee ranking member Jeff Sessions (R-Ala.) said the nominee’s memos from her clerkship under the late Supreme Court Justice Thurgood Marshall reflect “a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution.”

Sessions continued:

Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner. Given this thin legal resume, her candid memos as a Supreme Court clerk arguably provide some of the best insight into how she would rule as a Supreme Court Justice. These troubling memos have to be carefully examined, and it is now doubly important that the White House fully produce the overdue documents from the Clinton Library in order to shed further light on the philosophy Ms. Kagan would bring to the bench.

It’s enough to make one wonder if Sessions, who requested Kagan’s Clinton-era files two weeks ago, knew what would come just hours after his statement was made. The Alabama Republican has vowed to hold up Kagan’s scheduled June 28 confirmation hearing in the Judiciary panel “unless the files were produced in time for senators to peruse them well in advance,” according to the AP.

The official roll call hasn’t been posted yet, but according to People for the American Way, which has been following the Hamilton nomination closely and pushing for a vote, the following ten Republican Senators voted with all Democrats to support cloture: Lamar Alexander (Tenn.), Saxby Chambliss (Ga.), John Cornyn (Texas), Orrin Hatch (Utah), Richard Lugar (Ind.), John Thune (S.D.), Judd Gregg (N.H.), Olympia Snowe (Maine), Susan Collins (Maine) and Lisa Murkowski (Alaska).

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.

“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.

However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”

The seven organizations who signed onto the letter are the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.

The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).

Rep. John Conyers (D-Mich.) (WDCpix)

Eight years after it was passed, the USA Patriot Act remains among the most controversial pieces of counterterrorism legislation in the so-called “war on terror.” On December 31 of this year, some of its more controversial provisions will expire, forcing Congress to revisit it and decide whether to reauthorize the expiring provisions, amend them, or re-work the entire law.

The sections set to expire give the government the authority to access business records, operate roving wiretaps and conduct surveillance on “lone wolf” suspects with no known link to foreign governments or terrorist groups. A justice Department official last week told Congress that the Obama administration supports their renewal. Assistant Attorney General Ronald Weich wrote to Senator Patrick Leahy (D- Vt.) that the administration would consider stronger civil rights protections “provided that they do not undermine the effectiveness of these important (provisions).”

Illustration by: Matt Mahurin

But at a House Judiciary Committee hearing on Tuesday, it was clear that Democrats don’t uniformly support the White House on that. Some Democrats on the committee were still bitter that some Republicans back in 2001 had pushed aside a bipartisan version of the bill produced by the Judiciary Committee in favor of a version substantially revised and altered by the Rules Committee, led by then-chairman David Dreier (R-Calif.).

“Then-Chairman Dreier under Lord knows whose instructions, substituted that bill for another bill, that we at judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring” and that, according to committee Chairman John Conyers (D-Mich.), created problems that the bill he’d approved would have prevented.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act,” Rep. Jerrold Nadler (D-NY) echoed later in the hearing. “Then the bill just disappeared. And we had a new several hundred page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

The fight over the bill appears to be as partisan today as ever. At the House hearing, Democrats and their witnesses warned that provisions of the law that allow “roving wiretaps” of different communications devices used by unnamed suspects, or electronic surveillance of suspects with no affiliation to known terrorist organizations, violate constitutional safeguards against unreasonable searches and seizures. And a “gag order” provision of the bill, they complained, violate the First Amendment by preventing the recipient of an FBI-issued National Security Letter, which can request customer information from businesses, from disclosing to their customers that the information was requested.

While Democrats in the House yesterday cast these provisions as unnecessary and abusive, Republicans deemed them critical to national security.

“We must not be lulled into a false sense of security,” warned Rep. Lamar Smith (R-Texas). “The threat remains high,” he added, and proceeded to list about a half a dozen terrorist plots that were either carried out or planned but foiled by the FBI since September 11, 2001, including the 2004 Madrid train bombings, the 2008 terrorist attacks in Mumbai, and the thwarting of what he called a “plot to kill U.S. soldiers at the Fort Dix Army base” in 2007.

But several witnesses, such as Suzanne Spaulding, a national security lawyer and former staff director of the House Permanent Select Committee on Intelligence, testified that parts of the law such as the “lone wolf” provision, which allows the FBI to monitor suspects with no connection to foreign terrorist organizations, “undermines the policy and constitutional justification for the entire [Foreign Intelligence Surveillance Act] statute. “This extraordinary departure from the Fourth Amendment’s warrant standards is justified only in investigation of foreign powers or their agents,” she said. The “lone wolf” provision would allow the government to spy an someone suspected of participating in terrorism but where the evidence is not strong enough to meet the stricter standards for obtaining a regular warrant from an ordinary federal court.

Michael German, a former FBI agent and now policy counsel at the American Civil Liberties Union, noted that the FBI inspector general himself in 2007 concluded that the Patriot Act had been abused. Section 505 of the Act increased the number of officials who could authorize national security letters, seeking private information about certain businesses’ customers, reduced the standard necessary to obtain information with them, to the point where information could be collected about people who are not even suspected of having done anything wrong, testified German.

Even with such broad latitude, German testified, the Inspector general reports “confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities.” The inspector general reported that the FBI’s record-keeping was so poor it didn’t know how many national security lettesr it had issued, and it often sought private information that it was not entitled to.

“Most troubling, FBI supervisors used hundreds of illegal “exigent letters” to obtain telephone records without national security letters by falsely claiming emergencies,” German added in written testimony submitted to the subcommittee on Tuesday.

And Thomas Evans, a former Republican Congressman from Delaware testified on behalf of the bipartisan Constitution Project that the section of the Act allowing the FBI to issue National Security Letters without a court order and accompanied by gag orders creates “great potential for abuse.” Last week the Constitution Project sent a letter to the Senate Judiciary Committee, signed by 26 policy experts across the political spectrum, seeking major reforms to the Patriot Act.

On Tuesday, Todd Hinnen, Deputy Assistant Attorney General in the National Security Division of the Justice Department testified that many of the problems identified by the Inspector General and others have been solved. “Since that time, FBI has put in a new data subsystem governing those [national security letters],” he said, adding that the National Security Division of the Justice Department has increased its oversight and Congress and the Inspector General retain their oversight authority.

Hinnen testified further that the expiring Patriot Act provisions were absolutely necessary tools for law enforcement to pursue terror suspects. “We feel that these are very important investigative authorities and that it would be very unfortunate to allow them to lapse. The administration firmly supports renewal before December 31 so there’s no gap in the investigative abilities of the government.”

Conyers was not impressed. “You sound like a lot of people from DOJ that have come over here before, and yet you’ve only been there a few months,” he said, after Hinnen said he started in the job on January 21. “Do you think that’s a good thing or a bad thing?” Conyers asked. As Hinnen hesitated, Conyers added: “You don’t have to respond to that.”

On Wednesday, the Senate Judiciary Committee will hold its own hearing on the Patriot Act. That promises to be equally contentious. Already, several senators have introduced bills to reauthorize and amend expiring provisions of the Patriot Act, although there’s already evidence of disagreement among Senators on the same side of the aisle.

Last week, Senator Russ Feingold (D-Wisc.), with co-sponsorship from Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR), introduced a bill to narrow the Patriot Act, called The Judicious Use of Surveillance Tools In Counterterrorism Efforts Act, or the JUSTICE Act. The Act would amend not just the expiring provisions but would add protections for privacy civil liberties in each section fo the Patriot Act and other surveillance laws. It would also repeal the retroactive immunity granted to telecommunications companies included in the FISA Amendments Act passed last year.

The Obama administration has supported and defended in court this immunity for telecom companies.

A bill introduced on Tuesday by Sens. Patrick Leahy (D-Vt.), Benjamin Cardin (D-Md.) and Ted Kaufmann (D-Md.), does not repeal the immunity provision, and makes more modest amendments to the Patriot Act. It extends all three of the provisions set to expire this year, but expands reporting requirements to allow Congress to monitor how the administration is using the law.

After the House Judiciary Committee worked for days shortly after September 11, 2001 to hammer out a bill that both parties’ representatives unanimously agreed to, Conyers recalled with obvious irritation, the House Rules committee managed to hack it up so much behind closed doors that by the time the full House voted on it the next day, it was unrecognizable.

“Then Chairman Dreier” — referring to Rep. David Dreier (R-Calif.), then chairman of the House Rules Committee — “under lord knows whose instructions, substituted that bill for another bill, that we at Judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring.” Conyers proceeded to say that many of the problems being discussed at the hearing with the current law would have been addressed by the original bipartisan one, such as offering an opportunity for people harmed by the Patriot Act’s abuses to seek redress. The original law also “may have eliminated, or simplified, litigation about Patriot Act abuses that continue today,” said Conyers.

Rep. Jerrold Nadler (D-N.Y.), who chaired today’s hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, backed up Conyers’ version of what happened.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act. Then the bill just disappeared. And we had a new several-hundred-page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

None of the Republicans at today’s hearing challenged the Democratic chairmen’s version of events.