In it, but not of it. TPM DC

The Franken campaign has sent us this statement from lead attorney Marc Elias, responding to the state Supreme Court's decision against their lawsuit to force the state to give Franken a certificate of election during the election-contest litigation: "We'd hoped for different results, but we're moving forward. At this point, we're within a couple weeks of completing the election contest."

Earlier today, the Coleman campaign posted a comparatively longer statement from legal spokesman Ben Ginsberg, celebrating the ruling. The first sentence: "The Minnesota Supreme Court's decision is a victory for Minnesota Law and Minnesotans. This wise ruling will ensure that Harry Reid, Al Franken and Chuck Schumer cannot short-circuit Minnesota Law in their partisan power play."

Ginbserg also referred in the statement to the court having an "obligation to certify the number of 'lawfully cast ballots' for each candidate." As I've pointed out, this is not what the law says -- nor can I recall ever seeing any Coleman lawyer actually saying this in court, where it matters.

The statute actually says the court is to decide which candidate "received the highest number of votes legally cast." This is obviously a much lower standard than certifying the exact number of votes for each candidate -- a task that no rational person would even attempt with 2.9 million ballots. Then again, this daily line from Ginsberg has to be viewed in light of the current push by the Coleman campaign to throw out the election result on the grounds that a winner can't be determined.

Another series of arguments took place in the Minnesota election court today, as lead Franken lawyer Marc Elias argued the campaign's motion to dismiss Norm Coleman's whole lawsuit, either in whole or at least partially.

Some good news: The "partially" part is now guaranteed, as Coleman lawyer James Langdon agreed during his counter-argument that the claims in the suit that weren't argued when Team Coleman presented its case have been abandoned and could be dismissed.

The others, as you can imagine, remained very contentious.

Elias reiterated his charge that Coleman has failed to present evidence on the absentee ballots he wanted to present -- and pointed out how Coleman's numbers seem to use a different standard, noting that they don't have the full registration information.

"I think a clue to where they get their number -- and I may be wrong, it's found in their brief -- because their brief seems to take the position that the registration of voter and witness is at this point optional."

Elias quoted a part of Coleman's latest brief, saying the lack of registration information "should not be dispositive" because of clerical errors in the system. "It's an essential element to prove that the voter was registered and the witness was registered," Elias said. "This court ruled that a month ago. A month ago."

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The budget debate has yet to reach critical mass on Capitol Hill, but here's one Republican talking point to watch out for in the coming days: criticism of President Obama's choice to put the cost of the Iraq war in the annual budget, rather than relying on "emergency supplemental" war funding that doesn't impact the deficit (as George W. Bush did).

Rep. Paul Ryan (WI), the senior GOPer on the House Budget Committee, was the first to raise this point during a hearing with White House budget chief Peter Orszag on Tuesday. Ryan derided as a "budget gimmick" the Obama team's decision to assume savings from a gradual end to the war in Iraq. As the AP put it, Ryan

told Orszag that administration claims of deficit-cutting are mostly bogus since the deficit would fall anyway as the war in Iraq winds down.

Orszag offered a rebuttal to this claim on his blog this afternoon, pointing out that former President George H.W. Bush assumed a similar savings from the gradual winding-down of the Cold War -- which ultimately panned out.

As Orszag's numbers show, assuming that defense spending would fall below the budget "baseline" (which Obama bases on 2008 previous war costs) ended up paying dividends for Bush 41.

The Senate Budget Committee's Republicans go into more detail in their critique of the president's budget, available for download here (second link from the top). The Senate GOPers argue that "the budget claims 'silly' savings by imagining new baselines," asserting that the real model for 2010 war spending is what was spent so far in 2009, or $70 billion.

Now, at the risk of attempting to analyze a budget debate that's far in the weeds, should the budget baseline assume a full year of war spending or a partial one? The former is a far more honest method.

The Minnesota election court today heard a series of contentious oral arguments, with the decisions likely to have a huge impact on the future of this case.

First up, let's take a look at the Coleman campaign's motion to declare that "Rule 9" -- the set of procedures that the campaigns created for counting original damaged absentee ballots, rather than the duplicates made on Election Night -- was illegal. The Coleman has maintained that human errors in the labeling of duplicates and originals resulted Franken gaining an illegitimate gain, that votes were counted twice.

Lead Coleman lawyer Joe Friedberg argued that the rule created by the Coleman campaign was illegal, overriding the interests of the voters, and pointed out how the Secretary of State's office didn't want to go along. "And the Secretary of State abdicated his function by allowing two political parties to set aside a statute that was not designed for their benefit in the first place," he said. "You can't do that."

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It's often tempting to dive into the GOP's noisy crusade against earmarks, if only to point out the unabashed hypocrisy of lawmakers like Senate Minority Leader Mitch McConnell -- who watched many in his party decry the earmarks in this year's $410 billion spending bill while securing a nice bit of cash for his own home-state projects.

And on the topic of shooting fish in a barrel, Senate Minority Whip Jon Kyl (R-AZ) was pretty exercised about earmarks today on Fox News:

Now is not the time to be earmarking a lot of this money. People don't mind paying taxes and they understand the government needs to be run, but they hate to see their money wasted. So that's a second reason for opposing [the bill.


Well, I suspect there will be some that vote for it. Some like these earmarks, for one thing.

And Kyl would be one of those who likes earmarks. He secured $5 million in funding for solo earmarks in the bill, along with $25.8 million for joint earmarks with other lawmakers, according to a database assembled by the non-partisan Taxpayers for Common Sense.

Or as Kyl told the Washington Examiner this week, "Anything I have in the bill, I have a reason for."

The Minnesota Supreme Court just handed down their opinion on Al Franken's lawsuit to force the state to issue him a certificate of election -- and it's a unanimous No:

It is our legislature that is charged by both the federal and state constitutions with the authority and responsibility to fashion the processes for the election of United States Senators from Minnesota. The legislature has done so and has clearly chosen not to authorize issuance of a certificate of election until an election contest is completed. Franken has failed to establish that either the United States Constitution or federal statutes mandate the issuance of a certificate of election immediately. In the absence of such a mandate, overturning a legislative choice in order to maintain comity with a federal scheme is not within our judicial powers.

The remaining question, then, is when does somebody get a certificate? When does a "court of proper jurisdiction," as the law terms it, decide the case? The court cites prior case law declaring "the term 'proper court' in the same section applies to the state court which is given jurisdiction." This appears to suggest that a certificate could be issued after this goes through state court -- and not an onerous federal appeals process as the state's solicitor general said during oral arguments in this case.

However, the possibility would still exist of federal appeals placing an injunction against issuing a certificate -- so who knows.

This line has to be the cruelest cut for Franken. The opinion also says that Franken is not being hurt by the lack of a certificate -- the Senate can seat him if it wants:

In other words, if the Senate believes delay in seating the second Senator from Minnesota adversely affects the Senate, it has the authority to remedy the situation and needs no certificate of election from the Governor to do so. We cannot conclude, therefore, that the Minnesota Legislature's choice to defer issuance of a certificate of election until the full state election process has run its course unconstitutionally usurps the Senate's authority.

Of course, Senate Republicans are saying they'll block any attempt to suspend the rules and seat Franken without a certificate, even if theoretically the Senate has the power to do so. Remember all that fuss the Democratic leadership made over Roland Burris, demanding that everything be checked out on his credentials? Oy.

Team Coleman has just filed their formal opposition to the Franken campaign's motion to dismiss all of the various counts in the Coleman lawsuit, demonstrating a fundamental disagreement going on here: Team Franken insists that Coleman is bound to a much higher standard of proof than the Coleman lawyers say.

Check out some highlights, after the jump.

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Justice Ruth Bader Ginsburg is responding to Senator Jim Bunning (R-KY), without naming him directly, over his recent prediction that she would be dead from pancreatic cancer within nine months.

In an interview with USA Today, Ginsburg explained why she made sure to attend President Obama's speech to Congress last week. "First, I wanted people to see that the Supreme Court isn't all male," the lone female justice said of the evening event Feb. 24. "I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months."

Bunning made his remarks while speaking to a local GOP event back home in Kentucky, in explaining the importance of his commitment to appointing conservative judges, and how this would be an issue soon.

Josh observed earlier that the International Swaps & Derivatives Association was one of the major lobby groups helping to ensure that derivatives contracts got special repayment privileges from creditors under the 2005 bankruptcy bill. Which got me wondering ... the ISDA must be shaking in its loafers over the possibility of stronger regulation passing Congress this year. Which D.C. lobbyists are in their corner?

Here's what I found: a healthy $1.9 million in lobbying spending for 2008, more than twice as much as embattled bank UBS and comparable to the lobby bills of Credit Suisse, one bank heavily tied to derivatives trading and other complex financial instruments.

The lobbyist lineup for ISDA looks like a staff alumni list for top GOPers (and a few Dems):

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All signs are pointing to an accommodation of the standoff over Cuba policy that jeopardized a few key votes on the $410 billion 2009 spending bill (and trapped a couple of science nominations in limbo).

Treasury Secretary Tim Geithner is reported to be working with Sen. Robert Menendez (D-NJ) to assuage his concerns that elements of the spending bill would excessively relax the trade embargo against Cuba. But interestingly enough, another senator with identical concerns over the Cuba language, Bill Nelson (D-FL), was prepared to vote for the spending bill last night*, his spokesman told me.

The key for Nelson was not removing the Cuba provisions at issue, but rather "making sure they don't have unintended consequences," Nelson spokesman Dan McLaughlin said.

The apparent disconnect between Nelson's and Menendez's positions notwithstanding, here's the skinny on what specifically alarmed the senators.

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