What about censure?

Soon after Senator Russ Feingold, Democrat of Wisconsin, proposed censuring the President for his unauthorized wiretap ping program, Democrats began tripping all over themselves as they rushed to back away from the proposal. Columnists, news reporters, and bloggers documented the stampede to the exits by Feingold's colleagues. In one hilarious report, Washington Post columnist Dana Milbank described Hillary Clinton literally trying to hide behind the diminutive Barbara Mikulski to avoid answering a question about censure.

The conventional wisdom in Washington was that Feingold's resolution was bad politics. Republicans, most notably Rush Limbaugh, crowed that censure was a "gift," the kind of fringe issue that would turn off the public and bring Americans more solidly into Bush's corner. Brian Nick, spokesman for the National Republican Senatorial Committee, told the San Jose Mercury News that the censure issue could only help the Republicans in the midterm elections. "The bottom line is that Republicans have worked with President Bush to enact policies that kept America safe during the war on terror," he said.

Richard Benedetto, a columnist for USA Today, concurred, writing of the censure debate that Democrats already lag behind Republicans on national security. Democratic support for censure which shows they oppose extralegal measures to combat terrorism--could widen the gap, Benedetto wrote.

But the polls tell a different story. To an April Washington Post/ABC News poll that asked, "Which political party do you trust to do a better job handling the U.S. campaign against terrorism?" 46 percent of respondents chose the Democrats, while 45 percent chose the Republicans. Bush's low poll numbers are causing Republican candidates to distance themselves from the President. Meanwhile, with or without the Democratic leadership, support for censure keeps growing. The Post/ABC poll showed 67 percent of Democrats favor censure.

There are some Democrats who are inclined to form a more aggressive opposition to Bush. Mong with Fein gold, Senators Barbara Boxer and Tom Harkin co-sponsored the censure resolution. John Kerry announced on Meet the Press on April 9 that he would support censure, if it came to a vote. John Edwards said in a recent speech that Bush "deserved censure" for his role in the Valerie Plame scandal. And more politicians might change their minds if pressure grows.

But the party leadership is not exactly championing Feingold's confrontational approach.

Senate Minority Leader Harry Reid's spokesman Jim Manley responded to my question about censure very cautiously: "Well, uh ... What are you trying to do with your story, if I may be so bold? ... I guess, you know, he [Reid] has already been through one impeachment and he's not prepared to see another one now. He wants to see the Judiciary Committee do a full investigation of the eavesdropping program to make sure the President has the authority. We need to get a full handle on what the program entails and whether it violates the law."

Senator Ted Kennedy's press aide, Laura Capps, expressed a similar sentiment: "He believes a major part of [the problem] is the stonewalling by the Administration, so he hopes [censure] is not a step we need to take. The Administration cooperating with hearings, and attempts to get information on the program, would help."

And if it came to an up-or-down vote on the censure resolution?

"He hasn't said definitively. When pressed he said it was a close call," said Capps.

Jeff Bingaman, Democrat of New Mexico, is on the same page. "Senator Bingaman's position is that the Senate should take a more active role in investigating the President's approving of wiretaps before we get to censure," spokesperson Maria Najera explained. "There's still a lot of information that needs to come out. We need an investigation before we move to a consequence."

Even Pat Leahy, who sided with Feingold at the Judiciary hearings--saying it made no sense to assert that Congress unwittingly approved wiretaps, as the Administration claims--is noncommittal on censure. David Carle, Leahy's press guy, says: "He could support the resolution. He hasn't outright announced a decision on it yet."

Freshman Senator and rising star Barack Obama has the clearest position. "He is opposed to the resolution," spokesman Tommy Vietor says. In a letter to constituents on the issue, Obama explained that while he agrees with Feingold that the President "exceeded his authority with his domestic wiretapping program," and furthermore, that the Administration's justifications don't hold water, he doesn't support censure. "The question is whether the President understood the law and knowingly flouted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows," Obama wrote. "Ultimately, this debate must be resolved by the courts." But he said he'll keep a close watch on any future Judiciary Committee hearings, in case something comes up that could change his mind.

What happens next on the Judiciary Committee is up to Republican Chairman Arlen Specter. There could be more hearings, a vote on censure, or the issue could be shelved indefinitely. Politically, whether the Dems decide to become a more aggressive opposition will be up to the party leadership--and pressure from constituents. But on the merits, the idea that censure needs "more study" doesn't make a lot of sense.

As Feingold points out, Bush has admitted to skirting the Foreign Intelligence Surveillance Act. The Administration's legal justifications--that Congress unwittingly approved domestic wiretapping in its 2001 Authorization for Use of Military Force after 9/11, and that the commander in chief has the inherent authority to wiretap without court approval--are absurd.

Furthermore, the Democrats can't really have it both ways--intimating that Bush's actions are egregious, and that censure for those actions is beyond the pale. Even as a purely political calculation, running away from censure doesn't seem like a very clever strategy. But more than that, it is the basic duty of Congress to speak up when the President breaks the law. If the Democrats can't do that, what good are they?

Ruth Conniff is the political editor of The Progressive.