[EVE GITTELSON]: [. . .] Senator Specter, right now I am in Kansas City, Missouri at my second free health clinic. I attended a free health clinic in Little Rock, Arkansas about two weeks ago and now I’m here in Kansas City documenting the American healthcare horror stories on video. My first question for you, Senator Specter, is to let you know that many of these people that we’re seeing here are, what I suppose, are known as the working poor and the legislation that is currently being discussed is not going to help them. They are working, they have fulltime jobs, many of them, and they are unable to pay for health insurance; some of their employers offer insurance, but it’s unaffordable. The rest of them are deliberately only able to work, you know, like an hour less than would entitle them to healthcare benefits, so these people are working, I hate to say the word ‘too rich’ for Medicaid, but they are and therefore they are absolutely falling through the cracks. My question for you, Senator Specter: would you commit today to attending and seeing with your own eyes and bringing a Senate delegation to the next free health clinic. It seems to me members of the United States Senate are able to travel to Baghdad and into the green zone and to Islamabad and all around the world, but to see how our fellow citizens, our American brothers and sisters are suffering; I don’t believe one member of the United States Senate has ever attended a free health clinic and I’d like to ask you to commit today to coming to the next free health clinic and bringing as many of your colleagues as you possibly can. Thank you and apologies for the long question.

[. . .] And by the way, the Executive Director of the National Association of Free Clinics, Nicole Lamoureux, knew that I had been invited to participate in a conference call with a United States Senator; I didn’t say which Senator because I was asked to maintain the conference call in confidence, and she begged me to please beg you to make yourself available. They’re not sure, Senator Specter, of the next location; it should be in the east coast, it might even be in Washington, DC. It’s being worked on right now; it takes an enormous amount of man power to put these clinics together. There are thousands of American citizens who are without healthcare coming through.

AS: Well, if it’s in Washington I will give you a commitment; doesn’t even depend on whether we’re in session or not because if it’s here I could do both. If we’re on recess, I would come back here from my home state if it’s in town I’ll do it.

Q: And if it’s somewhere not in Washington could you also make every effort to attend and bring some of your colleagues?

AS: Well, you talk about every effort, yea. I would try to attend. It depends on where it is and what my other obligations are. If the Senate’s in session, for example, and its someplace far, it’s not doable. Let’s see where it is. [. . .] On my other colleagues, I would invite some, sure. I can’t say they’d come, but I would be glad to invite some, sure.

Q: Thank you, Senator Specter.

AS: Well, I continue to support a robust public option. I do not know whether it is dead. The majority leader has scheduled a caucus for 5:00 this afternoon to go over the fine print. I have talked to my colleagues ten Senator negotiating committee, as you know from the public disclosures and I’ve talked to people in the negotiations and it appears that the group has moved away from it. They think they have come pretty close in some of the alternatives, which they were still talking about and none of it was in concrete when they finished up. They were talking, for example, about a non-profit, which would have many of the indicia of a public option and they were also talking about having government run plans by the federal agency, which runs the Congressional plans and they were also talking about having, what would be similar to or maybe even a public option if a number of other proposals did not work out, to give the kind of coverage they’re looking for. So, that’s a generalization about what I have heard and we’ll know more when we get it straight from the majority leader.

Q: Would you ever consider voting against a public healthcare reform if it didn’t include the public option?

AS: Would I consider it? Yes, I would consider it. Let me see what happens. I do not want to walk away from all that has been done without some program, some advance. I haven’t had a chance to talk to Senator Feingold today, but he’s quoted as saying that strong terms in favor of the public option; very much as I feel. He hasn’t closed the door on a compromise and I would wanted to see where all the pieces fit before I took a definitive stand, but I have spoken up for a robust public option and I continue to feel that way.

Q: Do you have any benchmarks in place that you would like to see guaranteed in order to support healthcare reform that doesn’t include a public option?

AS: I would want to see exactly how it fits in. There’s talk about having Medicare for people 55 and older. There’s talk about raising the poverty level from 133% to 150%, that further reports that that may not be on the drawing board, and there’s talk about a nonprofit, talk about requiring private companies to pay out 90% of the premiums for medical care and I want to see where this business comes in on the potential bringing in a public plan if the others don’t work, which sounds a lot like the trigger, which Senator Snowe has talked about. I think a good bit’s going to depend here on where you’re going to get 60 votes, so it’s pretty hard to have any benchmarks until I have a lot better look at the bench.

[BTD] Q: Senator [. . .] Your mention of 60 votes and 50 votes put in mind to me and considering your considerable experience in the Senate; has this idea that 60 votes to get a bill passed; when did that become basically the rule of thumb in the Senate? Wasn’t there a time, Senator, when the filibuster was not something that would be used quite so frequently and basically as a rule of thumb? Wasn’t there a time when, yes, on certain, very contentious measures, of course, there would be a filibuster, but most bills could go to the floor and then there’d be an up or down vote; 50, plus the Vice President or 51 would pass the measure? When did it become the custom for the Senate to say they need 60 ‘yes’ votes on a measure in order for it to be enacted as law?

I can remind you that in 2005 the Bankruptcy Reform Bill was voted on for cloture, there was 60 votes for cloture, but there was not 60 votes for that bill itself. I can remind you that Senator Lieberman, himself, voted for cloture on the Bankruptcy Reform Bill, but then against the bill itself. When did this happen and do you think that’s a good thing?

AS: The rule has been 60 votes for a long time. When did it start to happen? I believe if you look back to Senator Mitchell’s leadership; he was the leader after the ’86 election. Byrd was for the first Congress and then Mitchell took over. I think it started to be used then and it picked up a lot of steam when Lott was leader and then it sort of went wild in 2005 and ’06 on the judges where there was a lot of talk about the so called nuclear constitutional option and we worked that out with the committee of gang of 14. When did we technically have 60? Well, it used to be 67.

Q: Right. I understand the history, but in terms of just the day to day custom of operation, Senator, and, again, I like the notion of the extraordinary [circumstances.] The gang of 14, I think you were a member of it, in the judicial context argued a filibuster should only be used in extraordinary circumstances. That doesn’t seem to be a rule anymore.

AS: That is true. The gang of 14 structured a compromise where a number of judges were confirmed and others were rejected and we got over that hump and then the filibuster has been used again on judges who are really spotless; Hamilton, Vanaskie, and other, so that now it is the vogue and it’s not only on judges, it’s on nominations, and it’s on bills. At the same time it has become commonplace. We have moved away from making people filibuster, but only to say they will filibuster and then to require 60 votes. Then we have amendments where the agreement is made to require 60 votes to pass it where you don’t even have a cloture vote; you have imported to 60 vote rule. I would say it really picked up during Lott’s tenure as Majority Leader.

Q: Senator, one last one and I’ll keep this short. I just recently saw Senator Buriss made some noises about him potentially filibustering any bill that did not have a public option. The last time I spoke to you and I asked you about reconciliation, you said as a last, last, last resort; certainly, we’re not there yet, but we’re closer to it being a situation of a last, last, last resort situation. Are you still of a mind that if we must, you would support reconciliation?

AS: I would stand by the last, last, last resort and I’ve thought about it carefully in articulating that. I also said that if you have to fight fire with fire if the partisanship and the Republicans continue to stonewall; if they had 41 votes, which were stonewalled and we didn’t have the chance to pass constructive legislation; if we were looking at the stimulus votes, which was the most important one I’ve passed in 10,000 and a very costly vote, but if you move away from the 60 vote margin, you are undercutting a Senate tradition, which has served the country very well. I’ve spoken about this before, but in a nutshell, there was an impeachment proceeding of a Supreme Court Justice, I think it was Chase in 1805, and the Senate saved the independence of the Judiciary when they rejected that. Then we had the famous impeachment of Andrew Hamilton in 1868 and had Hamilton been impeached, he had a big fight with the Secretary of War, etc., and the Senate took the position that the Senate had to approve of firing a cabinet officer. He was saved by the Senate, by the Senator from Kansas, and the ability of the Senate to hold up to beat the so called saucer cooling the tea has served the country very well. Now, if you have something like the stimulus package and 41 all objectors and the country’s going down in flames, well, that’s fire with fire, but we aren’t there here.

[EVE GITTELSON]: Sen. Specter, would you support, would you go ahead with reconciliation if necessary?

AS: Well, I’ve just answered that about as fully as I could. If it was the last, last, last, last resort and you had to fight fire with fire, I would consider it, but it would be a very tough thing institutionally. We’re gonna have a lot more issues for the Senate in a lot more years.

[LINDSEY BEYERSTEIN]: Senator Specter, this is Lindsay Fierstein with UN Dispatch. Do you have any concerns that the abortion issue is going to be a roadblock to passing the final bill in the Senate?

AS: Yea, I think it may be. I haven’t had a chance to catch up with Ben Nelson since we tabled the Nelson-Hatch amendment. There’s really no basis for it. There’s a perfectly solid way to make an accommodation to allow women the right to choose to pay for their own abortion services and maintain the principles of Hyde. I don’t like Hyde, but Hyde’s been the law of the land for a long time. We’re not going to change it. I was on the floor the day before yesterday and was on the floor yesterday debating with Hatch about it. I cited the Medicaid example, where Medicaid can’t be used to pay for abortions. 23 states pay for it separately and the business about segregating is a very solid principle and I think we’ll get that worked out but if Senator Nelson refuses to go along and we can’t get Lieberman and Snowe, I don’t know.

Q: Today Michelle Goldberg I think it was said in the Daily Beast that there was kind of a strategic trade-off, pitting abortion against the public option, but it assumes that it’s either going to be one or the other to get those swing votes. Do you think that’s a valid assessment?

AS: I don’t agree with that, no. I don’t think the Senate’s going to give on rejecting Nelson-Hatch and I think that we’re finding a way through, or it appears to be. I’ll know better in an hour and a half on the public option.

[EVE GITTELSON]: Senator Specter, this is Eve again, I have a question. As far as you know, did President Obama ever ask the centrists to support the public option?

AS: No, never to my knowledge. He never asked me or any group of which I was a member. [. . .] He has not mentioned – we just had a session with him this week, which is fresh in my mind, and he did not mention it. There was no Q & A. He has been quoted early on as saying the public option was not indispensable. But to answer your question directly, no.

[BTD]: Senator[.] Can I ask you a parochial question as a lawyer? [. . .] Did you see the Supreme Court decision [Mohawk Industries v. Carpenter (PDF)] Judge Sotomayor’s decision today on the appealability of rulings on attorney-client privilege? If you haven’t seen it I won’t ask you about it.

AS: Well, I haven’t seen it. Is that the case coming out of the Southern district of New York?

Q: I believe it came out of the 11th circuit. I could take a minute – the issue was that there was a claim of privilege and that it not be discoverable. The district court rejected it and the issue that was presented to the Supreme Court was was that decision appealable, Should that have been appealable immediately or whether it should wait for the final decision of the case. Judge Sotomayor, writing for a unanimous court, said that it should wait for final decision. What interested me – I just read the decision, first of all, I don’t like where an attorney-client privilege question could be left in the air, but one of the things that struck me was Justice Thomas in his concurrence cited Justice Sotomayor for making a value judgment that was more properly that of the legislative branch which does indeed determine the scope of attorney-client privilege. You haven’t seen the opinion, so I feel like I shouldn’t even ask you the question, but if something like that came up, would you consider a rule on appealability of attorney-client determinations by a district court, because if it’s breached at that point, that bell cannot be unrung. Once the communication is out, you can’t pretend not to have heard it. It seems to me that that’s an issue that should be something that should be subject to immediate appeal. If you feel you could comment on that or not.

AS: I’d take a swing at it. It’s my bill to change the Thompson rule, the rule that has come down since 1999 where the Justice Department extracts concessions from firms on reducing the charges or not asking for as much sentence if they wave the privilege and that has put some of the employees in a bind, because their privilege is being waived by their company, which has a very different interest, and there are some times where there are interlocutory appeals, we have an interlocutory appeals statute, which provides standards for taking matters up to the Circuit and then the Supreme Court before the case is finalized. I do have legislation pending to mandate the Supreme Court consider cases like the terror surveillance program, there the Supreme Court refused to decide the warrantless wiretaps, which I think is the most important case in history of clash between the legislative and executive authority with the legislature passing the foreign intelligence surveillance act mandating that the only way you get the information on wiretaps is with a warrant and the president saying that he has Article II powers, and the Supreme Court ducked the case, wouldn’t take cert from the 6th Circuit on standing. It was fairly involved, and Congress has the authority to legislate on the subject and establish what cases the Court hears. We can’t tell them how to decide, but we can tell them what to decide. Would I consider such legislation, sure, but I’d have to have my hands around the issue.

Q: Sure, absolutely. If you haven’t seen the case it was obviously unfair of me to ask you about it. But if you get the chance I would appreciate you taking the look at that. Thank you, Senator.

AS: Yea, I’ll do it.

[EVe GITTELSON]: Well I’m gonna jump in again. It’s Eve, if everyone is still thinking. Senator Specter, do you think we’re moving – I hate to say dangerously, but I’m gonna, healthcare is critically important to this country – do you think we’re moving to the area of we have to pass anything, we have to pass something, in other words, is that the direction that we may be headed? Another question, on a personal level, Senator Specter: I don’t know you, obviously, but I’m starting to – these brief conference calls – you strike me as somebody almost, not weary in the, weary almost in the best sense of the word, deeply frustrated and almost pained that this healthcare legislation is not moving in a more straightforward trajectory. Am I reading you correctly?

AS: No. You are not. To take your first question first, I’m not going to vote for a bad bill – [. . .] I’m not going to vote on a bad bill. It depends on how it all comes out. This is a big decision for reasons we all know. But I’m not gonna vote for a bad bill. Am I weary of the process? No. We have some really complex matters here. I went through asbestos when I chaired the Judiciary Committee and we fell one vote short, and we had the immigration case, again when I chaired the Judiciary Committee we didn’t go to conference. I’ve seen a lot of tough issues. But we work through a very complex legislative process, and I learned a long time ago that the Senate is a lot smarter than I am. I wonder sometime when we go days on end in quorum calls and don’t vote and then are up all night or here on weekends but these rules have a purpose and the filibuster rules and the 30 hours after cloture and vote and all the rest of it. You have to be patient. It’s a great, frankly this may sound a little [inaudible] , it’s a great privilege to be a senator. You have to put up with a lot, but not much considering what opportunity you have to impact really big issues of the day. I’ve been at it a long time and I’m anxious to stay, as you can tell.

Q: Sure, well, Senator, obviously, to change gears just a little bit, it’s been a very long year, with a lot of different items for yourself, and now that we’re reaching the end of it, do you have any sort of reflections on all the events of the past twelve months?

AS: Well, yea. I have a reflection. It’s that the public interests are being thwarted by the partisanship here and to find our way back to not be ideologically tied and be fact-oriented and consider public policy based upon what the facts are and be willing to talk across the aisle I think is very important. Collins and Lieberman and I came together sort of symbolically on an amendment on cost containment and I think it is really a sad state of affairs when Lindsey Graham is the subject of censure because he talks to John Kerry about climate control. It’s not as bad as Joe Wilson on the State of the Union speech, but it’s not going to affect Lindsey. I think it’s pretty tough stuff when resolutions of censure were filed against me by the Republican Party when I cast the stimulus vote. I’ve cast 10,000 votes and I don’t know how many more I’ll cast but it would be pretty hard to find one more important than that and what we really need to do – the American people are very dissatisfied with Congress now, which we all know. Approval ratings are plummeting. I cover almost every county every year and in August when I started my county tour in Lebanon, Pennsylvania, you may have seen that volatile town meeting with the guy waving his arms and raising holy hell, and what it’s going to take is middle America to be more concerned about what’s going on. Too much of what happens in Washington is dictated by the talk shows and the fringes of the parties and by the extremists. I think most Americans want to see the Democrats and the Republicans working together, but the electorate is going to have to insist on it. But as long as I’m here I’m going to try to do that. That’s my deepest reflection at the moment. Anything more? You’ve got four minutes left before I gotta go see Harry Reid.

Q: I’m going to ask you another question, Senator Specter. As a former Republican, can you take us inside the Republican delay machine, I mean how does that, tell us what really happens and how the, I believe one of your former colleagues, forgive me, Senator Gregg I believe it was, circulated a memo that we have to stall and do anything we can to defeat this, whatever it was. But what really happens inside the Republican kill the bill machine?

AS: Well, nothing stays secret. Senator DeMint epitomizes it, with his famous statement, ‘This is going to be his Waterloo and we’re going to break him,’ and that’s the object. He wants thirty true believers rather than having a majority of Republican control, and there are a lot of cabinet positions which haven’t been filled in judicial – not cabinet, but confirmable positions, judicial positions, and they’re not being filled because it takes several days to confirm them, so the procedures are being used to stymie the way the government is supposed to run and that’s pretty much the approach. I can tell you on the stimulus package, the word was don’t talk to Democrats. The question was raised by Snowe, Collins, me and some others. There were some others who participated for a while. We had six people in the talks and it dwindled to three and the object was to break Obama on the first big vote and the country was [. . .] If 41 Republican senators had stuck together there wouldn’t have been a stimulus package. And well how about the economy? Well politics was elevated over the public interest. That’s not news, but that’s what it was and that’s what it is, and that’s why I voted as I did and why I’m a Democrat, providing the 60 votes.

Q: And Senator Specter, just a quick follow-up. When you say the word goes out, don’t talk to Democrats, forgive me, but that sounds almost like a kindergarten classroom. Is that literally what happens, is that literally the way it operates?

AS: It is not literally, because nobody can stop me from talking to Democrats or Lindsey Graham from talking to John Kerry, but it’s on the record, what DeMint said as to Obama and his Waterloo, it’s on the record. You can’t have it any more explicit than that. And when you say it sounds like kindergarten, I think I know a lot of kindergarteners who would object to your statement. You can quote me on that, or anything else I’ve said. Well, listen, it was great talking to you guys. I’ve got to go now and find out what the answers to your questions are.

Q: Senator, thanks for doing the call.