updated 3/12/2010 9:56:27 AM ET 2010-03-12T14:56:27

Guest: Ezra Klein, Ted Kaufman       

KEITH OLBERMANN, HOST:  Good evening, from New York. 

As I left my father‘s hospital room, I was accosted on the street by

an EMT, an emergency medical technician, who had run half a block at full

speed to tell me something he thought was very important.  It‘s not just,

he said, about life panels—about end-of-life care decisions and

conversations.  It‘s something even more important than that—living

wills.  What you can do to ensure that nothing is done to you that you

don‘t want.

I‘ll be back with that later on, along with an update, a positive

update on the health of my father.  Thank you again for your inquiries to

that.

And now, if you‘d be so kind as to give your attention to Lawrence

O‘Donnell and his edition of COUNTDOWN.

(BEGIN VIDEOTAPE)

LAWRENCE O‘DONNELL, GUEST HOST (voice-over):  Which of these stories

will you be talking about tomorrow?

The road to reconciliation—Majority Leader Reid to Minority Leader

McConnell: like it or not, the Democrats are moving ahead with health care

reform through reconciliation.

And the roadblock to reconciliation: The Senate parliamentarian rules

President Obama must sign the original health care bill before

reconciliation can continue.  Will this derail the Democrats‘ plans and the

promise of reform?

The end of the Stupak 12.  “The A.P.” reports the Democratic

leadership will try to pass health care legislation without the support of

anti-abortion Democrats.  So, what is the vote count now?

The Massa mess: What did the Democratic leadership know and when did

they know it?  The GOP blames Nancy Pelosi.  And despite Eric Massa‘s

resignation from Congress, Minority Leader Boehner tries to force an ethics

investigation.

Going it alone after bipartisan talks fail, the chairman of the Senate

Banking Committee will propose financial reform without GOP support.  The

Republicans call Dodd‘s decision stunning.

(BEGIN VIDEO CLIP)

SEN. BOB CORKER ®, TENNESSEE:  There‘s no question that White House

politics and health care have kept us from getting to the goal line.

(END VIDEO CLIP)

O‘DONNELL:  Meanwhile, Dodd‘s Democratic colleague calls for the end

of the megabank and the financial policies that caused the economic

meltdown.  Senator Ted Kaufman will join us.

And the crisis at Toyota.  Today on Capitol Hill, government

regulators are in the hot seat trying to explain why they didn‘t do more to

protect drivers.

All that and more—now on COUNTDOWN.

(END VIDEOTAPE)

O‘DONNELL:  Good evening from New York.  I‘m Lawrence O‘Donnell.

Six words you never want to hear from your mechanic, your contractor,

or your surgeon: “Don‘t worry, we‘ll fix that later.”

If the narrow path to final health care reform legislation is by

reconciliation, House Democrats are going to have to trust that Senate

Democrats will fix the bill later—after they pass it in its current

form, especially if the Senate parliamentarian has ruled, as Republicans

claim he has, that President Obama must sign the original Senate bill into

law before Democrats can act on a reconciliation package to amend it.

Senior GOP officials have told “Roll Call” that the Senate

Parliamentarian‘s Office has told them, in response to questions posed by

the Republican leadership, that the president has to sign the bill into law

before reconciliation can happen.

In a letter to Minority Leader McConnell today, Majority Leader Reid

officially declared his intention to use reconciliation to get a final part

of the bill to the president‘s desk.  He also noted that the bulk of the

bill was approved under regular process, including more than 100 amendments

from Republicans during committee consideration of the bill.

Democrats in the House actively looking for ways to pass health care

reform without having to first enact the parts of the Senate bill they

hate.  “Talking Points Memo” reports that “leadership is now considering a

track that would allow the House to pass both items with a single vote, a

so-called self-executing rule which would hold that the Senate bill should

be considered passed if the reconciliation bill passes.”

Complicating matters further, there is the public option, which is

still gaining support in the Senate.  Senator Bernie Sanders, independent

of Vermont, told Greg Sargent of “The Plum Line” blog that he‘s prepared to

introduce an amendment that would add the public option to the Senate

reconciliation bill.

Minority Whip Durbin—Majority Whip Durbin said yesterday that a

public option amendment—any public option amendment—would create

headaches for the leadership and might force leaders to ask liberal

senators to vote against it to ensure smooth passage of the overall

reconciliation bill.

But late this afternoon, when Ryan Grim reported that “The Huffington

Post‘s” analysis indicates there could plausibly be 53 votes for the public

option in the Senate, Senator Durbin said he‘d whip support for whatever

package comes to him through the House.  So, Durbin is indicating the

public option in reconciliation is now up to the House.

Meanwhile, if Speaker Nancy Pelosi is going to be able to pass the

Senate bill, she‘s going to have to do it without the help of the so-called

“Stupak 12.”  “The Associated Press” reports that House leadership has

given up on placating anti-abortion Democrats like Michigan‘s Bart Stupak

and will try to proceed on passing the bill without them.

At the White House, it appears the administration‘s self-imposed

deadline of passage by March 18th, one week from today, is—like all

previous deadlines—fluid.

(BEGIN VIDEO CLIP)

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY:  The president, again said

last night, it is time for Congress to act.  It is time for Congress to

vote.

That‘s what the president wants.  Quite frankly, that‘s what Speaker

Pelosi, that‘s what Majority Leader Reid want.  We are working toward that. 

We‘re—I know that CBO is evaluating different aspects of the

legislation.

Our hope is to get this done as soon as possible.  If it takes a

couple extra days after a year, it takes a couple extra days.

(END VIDEO CLIP)

O‘DONNELL:  Lots to consider tonight with MSNBC political analyst

Howard Fineman, senior Washington correspondent for “Newsweek” magazine.

Howard, before we go to health care, I want to ask you about some

breaking news out of Washington, reports of Senator Reid‘s wife and

daughter being involved in a serious car accident today.  What can you tell

us about that accident and their condition?

HOWARD FINEMAN, MSNBC POLITICAL ANALYST:  Well, Lawrence, I was up on

the Senate side this afternoon when news of this broke.  And it‘s pretty

serious, though not life-threatening.

Here‘s what I know: Leader Reid‘s wife and daughter, adult daughter,

were driving on an interstate in the Washington area in Virginia.  They

were—they were rear ended in a chain reaction by a truck and some other

cars.

His wife Landra sustained some serious injuries, broken neck, broken

back, broken nose.  She‘s in the hospital but it‘s not considered life-

threatening.  She can feel her extremities.  She is—she‘s not paralyzed

but it‘s pretty serious.

The daughter Lana is going to be released tonight, I believe.  Harry

Reid is over at the hospital now.

And, you know, you have to restrain yourself in moments like this,

first to express sympathy, but also realize there‘s kind of a Job-like

quality to the Harry Reid story whether you like him or not.  He‘s got a

tough time looking at re-election in Nevada.  He spent the last year on

what is still not quite there as the health care bill.  And now, he‘s

shuttling back and forth between the Hill and the hospital to take care of

his wife and daughter.

O‘DONNELL:  Yes, it may be hard for Harry Reid to remember what a

happy day feels like.

FINEMAN:  Yes, exactly.  Exactly.

O‘DONNELL:  Howard, with all the process moves today, parliamentarian

talking to Senate and self-executing rules in the House—are we inching

closer?  Which of these moves matter today?

FINEMAN:  Well, I‘ve got to say, Lawrence, the whole thing has a

slightly Kafkaesque quality to it now.  You‘re both getting closer and

farther away at the same time.  Although I must say that Reid‘s office and

over on the House side, the speaker‘s office, they‘ve managed to work

themselves up into another state of enthusiasm—whether it‘s suspension

of disbelief or not, I don‘t know.

First thing is, Democrats are not accepting what the parliamentarian

pointed out to the Republicans.  Whether it is this self-executing thing or

some other kind of two-step with the original bill plus reconciliation,

Harry Reid has got something up his sleeve about how to try to do this, how

to combine the two things.  So, the Democrats are not conceding the

parliamentarian‘s point—number one.

Number two, it‘s not quite true, despite what “The A.P.” says that the

leadership has given up on the Stupak 12 over in the House.  They are

leaving them alone for now, Lawrence.  And they‘re going to try to call

their bluff later down the road next week.

They‘re not sure that they‘re 12.  I mean, the Democratic leaders are

saying, well, maybe there‘s a Stupak five or six.  If there‘s five or six,

we can maybe work around them and get those other votes.

The other things that‘s going on is, of course, what Harry Reid and

Nancy Pelosi and Rahm Emanuel are working on when Harry Reid had to leave

to go take care of his wife, which is the black box second bill.  They are

trying to woo both House blue dogs and House liberals at the same time.

Can they do both at the same time and make the numbers add up?  That‘s

why Reid, Pelosi and Emanuel are having these long meetings.

O‘DONNELL:  What they‘re—it seems what they‘re going after in that

self-executing rule is to avoid this horrible campaign moment for House

Democrats where in one notion of this, they would simply vote for the

Senate bill as-is, have it be passed and then vote on a reconciliation bill

to amend it.  The problem with that is that they‘re first vote would

involve voting for everything in the Senate bill that everybody now hates.

FINEMAN:  Right.  Exactly.

O‘DONNELL:  The deal for Nebraska, the dirty deal for Louisiana, the

dirty for Florida.  And every House member would be accused of voting for

those things.  And their only defense left to them—

FINEMAN:  Right.

O‘DONNELL:  -- would be I voted for it before I voted against it.

FINEMAN:  Yes.

O‘DONNELL:  So they want to put all these votes in one—in a single

vote.

FINEMAN:  Right.

O‘DONNELL:  And they—do they—do they think there‘s enough

insulation in that process for what would happen to them if they separated

these votes out and they could be exposed as voting individually for those

things?

FINEMAN:  You know, I don‘t think there is enough separation, frankly. 

But they are too far along in the process to back out now.  I mean, that‘s

basically it.  The House members just don‘t want to vote for the Senate

bill, as you‘ve said and you‘ve explained some of the reasons why.  There

are others.  They are just loathed to do it.

But they are in a situation where Pelosi and Reid and Emanuel are

trying to develop this other thing, this patch, this fix, this extra thing

on there that will somehow give them either the courage or the—or the,

you know, dumb persistence to go ahead and vote for the thing.  They don‘t

have the votes right now because nobody knows what that final black box is

exactly going to look like.  And once Reid, Pelosi and Emanuel are done

putting it together, it still has to go to be scored and they got to find

out how much it‘s going to cost, and they‘re hoping it‘s going to come in

under a trillion, which it probably will.  It‘s going to have all kinds of

language in it that the House members are going to want to see.

They need maybe five, six, seven House votes more.  They don‘t have

them just yet and it depends on what‘s in that other language and then a

lot of convincing and then a lot of begging and pleading from the president

all of which they are claiming is going to happen between now and next

Thursday.  I don‘t think so.

               

O‘DONNELL:  Howard Fineman of MSNBC and “Newsweek”—thanks for your

reporting tonight.  And, Howard, I hope you don‘t mind that last night we

replaced you on the Eric Massa news desk with Bill Maher.

FINEMAN:  I‘m glad that you did and the Massa story is not going away,

and if it‘s still here next week, I‘m ready for duty.

O‘DONNELL:  OK.  Thanks, Howard.

FINEMAN:  OK.

O‘DONNELL:  For more on what happens next, let‘s turn to Ezra Klein of

“The Washington Post” and “Newsweek.”

Ezra, we have word from Republican sources that the Senate

Parliamentarian‘s Office believes that the president must sign the Senate

bill into law before the Democrats can pass that reconciliation bill to

amend it.  Now, this is a view that Republicans are very happy with.  They

want to see the process work that way.

But aren‘t these the very same Republicans, who last week, were

complaining that the parliamentarian has all this power and he may abuse

that power to rule in favor of the ruling party and how can we trust this

parliamentarian?  Where does this leave the Republicans now on their

arguments with or about the parliamentarian?

EZRA KLEIN, WASHINGTON POST:  Well, the Republicans have been

displaying a very fickle appreciation for process.  They are happy with it

and happy with the people enforcing it when it‘s their way, not when it‘s

not.

One quick note on the parliamentarian—Alan Frumin was brought into

power when Republicans fired the previous parliamentarian because they did

not like his rulings on reconciliation.

The one addendum I‘d put to his ruling today, if he did in fact make,

that the “Roll Call” story only had Republican sources, is that my

understanding is Kent Conrad is saying the same thing.  And I don‘t know if

he heard it from the parliamentarian or it‘s his judgment.  But he‘s

telling members of the Democratic Senate Caucus that what—this is all

going to be great for them because what‘s going to happen is they‘re going

to pass the bill.  And the Republicans basically get to decide: do they

want to own the Nelson deal, the Louisiana deal, the Florida deal or let

Democrats fix it.

Whether or not that works out in practice, I don‘t know.  But that

appears to be one of the arguments floating around the Democratic Caucus

right now.

O‘DONNELL:  Yes, I had a long process talk with Kent Conrad on the

phone a while ago, and we went over exactly this.  Do—does the bill have

to become law before you can amend it?  It seemed as though it did.  It‘s

not an easy ruling to argue with.

Now, getting on to Harry Reid‘s letter to Mitch McConnell, which is

kind of the official declaration of war—procedural war—on this thing,

how much of that was intended to alert the minority leader and how much of

it was a press release for us, and then, how much was meant to show

Democrats in the House that Harry Reid has a handle on reconciliation, they

are moving forward—“and Democrats in the House, you can trust us in the

Senate”?

KLEIN:  I think you got it with that third one.

Look, that letter was a peculiar letter, you know?  It was not

entirely complimentary toward Senator McConnell.  It was much more hard-

edged than you‘d expect if you were simply saying we‘re going to

reconciliation.

A press release for us—I think we all know he‘s doing

reconciliation.  But the House has been saying, “We want a guarantee.  We

want to know you are going forward.”  And that was as much of a commitment

at this point that Reid could have, you know, possibly been asked to make. 

I mean, not only saying: we‘re going to go forward with reconciliation, but

all the Republicans who are saying otherwise, you are completely wrong and

we are not going to listen to you, and we‘re going to do everything we can

to overcome procedural obstructions.

And that‘s important because the House‘s concern is not that they

won‘t try reconciliation but that in the face of Republican attempts to

derail, they‘ll say, “You know, we gave this a shot.  Sorry about it, but

the president should just sign the bill now.”

O‘DONNELL:  Now, Ezra, let‘s jump back to the self-executing rule in

the House because you and I aren‘t going to get a chance to talk about this

kind of parliamentary stuff much longer, I don‘t think.

KLEIN:  You‘re going to miss this, aren‘t you?

O‘DONNELL:  I am.  Now, let‘s just leave the Senate parliamentarian

aside, who can ruin this dream for everyone.  But if they were to try to do

this in the House, is there precedent for it?  Have they ever before had a

rule in the House that indicated the bill you‘re voting on will become law

only if this other piece of the bill you‘re voting on at the same time

becomes law?  It‘s hard to even describe and I can‘t think of a single

precedent for it.

KLEIN:  I can‘t think of one.  So, you got me stumped, which is not to

say it doesn‘t mean, is it‘s only to say I can‘t think of it.

But, you know, the one thing that I would say about House and Senate

and congressional processes that it is a process of consistent innovation. 

That it‘s never been done until it‘s been done.  And all sorts of things

are invented at the time.

Reconciliation had never been used to increase the deficit before Bush

did it for the tax cuts.  You can go on and on down the line where, you

know, in response to differing circumstances and our politics changes, they

figure out a way to do things and then it becomes a norm in the future from

that.  So, that they haven‘t done, it doesn‘t mean they won‘t.

O‘DONNELL:  Ezra, my own conservative approach to this is: I win a lot

money on bets, betting on things that have never happened before in the

Congress.  I lose once in a while.  But you mostly win.

KLEIN:  Sure.

O‘DONNELL:  Ezra Klein of “The Washington Post” and “Newsweek”—

thank you very much for your time tonight.

KLEIN:  Thank you.

O‘DONNELL:  Coming up: Keith will return to talk about your health

care needs in a moment of personal crisis, important advice on living

wills.

But up next: the political uproar over former Congressman Eric Massa. 

He may be gone from Capitol Hill, but the GOP wants to make sure he is not

forgotten.  Why Republicans are calling for an ethics probe even after the

Massa resignation.

(COMMERCIAL BREAK)

O‘DONNELL:  Coming up: The Eric Massa allegations.  Republicans want

to know who knew what and when among the Democratic leadership.  Speaker

Pelosi answers those questions today as an ethics committee investigation

looms.

And later: efforts to avoid another financial meltdown.  Democratic

Senator Ted Kaufman says the plans of his own party and the Obama White

House don‘t do nearly enough to protect us from another banking crisis. 

Senator Kaufman joins us—ahead on COUTNDOWN.

(COMMERCIAL BREAK)

O‘DONNELL:  As we have documented here in the past few days Republican

plan A to capitalize on the Eric Massa scandal was a bust.  To the

frustration of poor Glenn Beck and the GOP leaders to watch him the whole

shmizol (ph) got lost in his fond memories of tickle fights.  Then came

yesterday‘s snorkeling revelations which left Republicans speechless.

Now, it‘s on to plan B.  Today, the House of Representatives voted on

Minority Leader John Boehner‘s resolution to investigate the Democratic

handling of the Massa investigations.  The final vote was 402-to-one to

refer to the House Ethics Committee.

Afterwards, Boehner issued a statement praising the decision.  “The

clear standards established after 2006 -- with Speaker Pelosi‘s strong

support—demand this investigation.”

Those clear standards after 2006 were established in part because of

John Boehner and the way House Republicans handled the Mark Foley scandal. 

Foley was the Florida Republican who resigned amid accusations of

inappropriate contact with House pages.

ABC News went public with suggestive text messages between Foley and

page in September of 2006.  Republican leadership, including John Boehner,

were aware there was a problem six months prior to ABC‘s report.  After

Foley resigned, the House Ethics Committee found Republican leadership was,

quote, “willfully ignorant of the potential consequences of Foley‘s conduct

with respect to House pages.”

Today, Speaker Pelosi told Rachel Maddow that she was in favor of

referring the case to the ethics committee and she detailed the timeline of

when her office found out Massa was a problem.

(BEGIN VIDEO CLIP)

RACHEL MADDOW, MSNBC HOST:  When was your office first told about

concerns about his behavior?

REP. NANCY PELOSI (D-CA), HOUSE SPEAKER:  Well, any report to our

office was in February, that there was an allegation against him and at the

same time that it was referred to the ethics committee and that was the

appropriate route.  I‘m now finding out that there had been a conversation

earlier, but it had nothing to do to come close to any kind of an

allegation.  It was repeated something that had been in the newspaper the

day before.

(END VIDEO CLIP)

O‘DONNELL:  The newspaper article was in the October 7th, 2009 edition

of “The Hornell Evening Tribune.”  In a profile of Congressman Massa, “The

Tribune” reported he was living in a row house with five staffers. 

According to “The Washington Post,” it was Massa‘s chief of staff who

informed Pelosi‘s office of his living situation.

Joining me now is MSNBC political analyst Richard Wolffe.

Richard, how much of a problem could this ethics committee

investigation be for Democrats?

RICHARD WOLFFE, MSNBC POLITICAL ANALYST:  Well, judging from what

we‘ve seen in the public reports, and that‘s an important caveat, we don‘t

know what we don‘t know.  But to carry on quoting Rumsfeld, “stuff

happens.”  The question for Democrats is: how do they react to this stuff.

And the investigation, as best we can tell, is really going to focus

on this timeline which actually puts the Democratic leadership in a pretty

good light, at least compared to how the Republicans dealt with the Mark

Foley situation.  So, I don‘t know the investigation is going be a problem

in itself. In fact, it may help if the Democrats are transparent and open

and embracing of it.

The real challenge for Democrats is this broader narrative which

Republicans have actually done a great job of pulling together.  How this

fits into a broader story about—as you said earlier in the show—dirty

dealing over certain legislation, whether it‘s health care or anything

else, or Charlie Rangel‘s tax problems, the overarching narrative is the

danger here.  It‘s not, I would suggest at this point, the investigation

itself.

O‘DONNELL:  Now, should Nancy Pelosi have seen this coming and beaten

John Boehner to the punch and referred to ethics committee or asked the

ethics committee to take a look at it without being forced through this

Republican vote to do it?

WOLFFE:  Well, that‘s a good question.  And yes, I think she probably

should have done it.  It is a difficult situation for her, given everything

she‘s trying to juggle.  You don‘t know the tactics behind it.

But there is clearly overwhelming support for the ethics committee to

take this up.  The Republicans can feel like they are taking a lead on that

and they have been.  But the question is, again: how does the leadership

deal with this?  Are they answering the questions?  Are they being

transparent?  Did they move swiftly?

And when you‘re talking about a matter of days, rather than a matter

of months, in dealing with a scandal like this—that‘s important.  They

need to go out and tell that story as Democrats.

O‘DONNELL:  Now, John Boehner seems to have learned an awful lot from

the errors of the Mark Foley scandal, including his own errors in the Mark

Foley scandal, where the ethics committee found that the Republican

leadership willfully looked away from that.  He really seems to have

finally figured out exactly the way you should handle these things, go

straight to the ethics committee as fast as possible.

I mean, how funny is this to watch Boehner jumping on this after the

way they handled the Foley scandal?

WOLFFE:  Well, it would be funny if the allegations underneath weren‘t

quite so serious.  But, look, there is no question that the errors weren‘t

just stumbled.  This was a painful episode for anyone associated with

Republican leadership, because there are many people in their own party,

there are many people in the Bush White House—not the least of whom was

Karl Rove—who blames the loss of Congress on the handling of the Foley

scandal, never mind everything that was going on with Iraq and everything

else at the time.

So, you know, I can understand why these errors are so big and loom

something large, and why they see it as an opportunity for themselves to

exact some revenge and punish the Democrats.

O‘DONNELL:  Don‘t they want to take the attention off sex scandals? 

They‘ve got the biggest sex scandal going in the Senate with John Ensign of

Nevada, which is currently under investigation by the ethics committee in

the Senate.  And they‘ve got—Senator Vitter is still there in the

Senate.  I mean, this is—this is an area that is not a place I think

they want public attention, is it?

WOLFFE:  Yes.  Clean hands are not in ample supply in Congress.  But,

you know, it‘s never been a problem, as I recall in recent memory.  Look

back at the Monica Lewinsky scandal.  Righteous indignation was in

plentiful supply among Republicans who themselves were not exactly keeping

with their marriage vows.

O‘DONNELL:  Richard Wolffe of MSNBC—thank you very much for your

time tonight.

WOLFFE:  Thank you, Lawrence.

O‘DONNELL:  As bipartisan talks over financial reforms break down in

the Senate, one Democrat says if the reforms proposed by the president and

Democrats go through, it‘s still not enough to save us from a financial

collapse.  That Democrat, Senator Ted Kaufman, joins us.

And later: with all the questions swirling around Toyota, today, the

focus was on the U.S. government.  Why didn‘t regulators do more to protect

Toyota drivers?

(COMMERCIAL BREAK)

O‘DONNELL:  Today, Senate Banking Chairman Chris Dodd announced that

he is ending his talks with Republicans on the biggest overhaul of

financial regulations since the Depression, and will unveil his own plan on

Monday.  After ranking Republican Richard Shelby pulled out of

negotiations, Dodd began talking instead with Republican Senator Bob

Corker, who said it was stunning that Dodd shut down talks to move ahead

with his own bill without any Republican support. 

In a speech today, our next guest, Senator Ted Kaufman, outlined what

he thinks real reform would look like.  Senator Kaufman joins us tonight

from Washington. 

Good evening, Senator Kaufman.  Is it good news or bad news that

Senator Dodd has given up negotiating with Republicans on the Banking

Committee? 

SEN. TED KAUFMAN (D), DELAWARE:  I‘ll be honest with you, I really

don‘t know.  I‘m not on the Banking Committee.  But I have great faith in

Chris Dodd.  He has been around for a long time.  I really respect him.  I

think he‘s an excellent person to determine whether it‘s time to move ahead

or not. 

O‘DONNELL:  Did he find himself in the situation where Chairman Baucus

did last year in the Finance Committee, where he continued to negotiate

with Republicans, and the Republicans kept moving the goal posts farther

away, and the question was should he bail out on these Republicans or keep

going?  We saw, in that case, Baucus keep going, and try to get at least

one, and he got at least one republican on his bill. 

Dodd had, it seemed to me—did he have that same judgment call to

make?  Do I keep talking to them or bail out or go my own way? 

KAUFMAN:  It sounded a lot like deja vu all over again?  Didn‘t it? 

It did have that feeling to it.  Again, I think Chris made the right

decision to move ahead.  But it did look suspiciously like it would work

for them in terms of health care reform, in terms of slowing it down.  I

think most people believe if we had the vote on health care reform a couple

months earlier, we would have been through all this, and it would be passed

and become law now. 

I think that it began to look suspiciously—I‘m not questioning the

motivation of Senator Corker, who I respect.  I‘m just saying it got to the

point where it started to look that way.  Again, I think Chris Dodd knows

what he‘s doing.  There isn‘t anybody more savvy about this thing.  I think

that‘s probably what he decided, it‘s time to get moving. 

O‘DONNELL:  What are you hoping to see in the Dodd bill that will be

released on Monday? 

KAUFMAN:  Well, I don‘t know.  I‘m going to wait and see.  What I

tried to do, Lawrence, today, is what I‘ve don before, what I did on

Afghanistan, and that is kind of—which I found helpful in dealing with

legislation when I was on staff and I know when you were on staff.  At some

point, you say, OK, let‘s get away from the politics and the process,

especially when you are not on the relevant committee—do you know what I

mean?  And you say, what do I really think should be in this bill? 

That‘s really what I did today.  I laid out—I spent a lot of time

working on this and thinking about it.  I kind of laid out what I thought

should be in the bill, and really, more importantly, why I thought it

should be in the bill.  Now we‘re going to get the bill and now we‘re going

to get in the process and now we‘re going to start negotiating and figure

out where we are going to.  I wanted, for at least one moment, for my

constituents, to lay out what I wanted to see in the bill. 

O‘DONNELL:  What would be those top three things, senator, in that

bill? 

KAUFMAN:  First thing we have to deal with is too big to fail.  We

absolutely have to deal with too big to fail.  We also should be dealing

with the regulations, making the laws and not leaving it to the regulators. 

When this happened in 1929, we passed a whole series of legislation, Glass-

Steagall Act, margin requirements.  We set the FEC.  We set up the FDIC. 

That was by law.  And it worked pretty well for about 50 years. 

Then we started chipping away at it.  It really got rolling in 1999,

when we did away with Glass-Steagall.  Didn‘t do the things we could have

done in regulating derivatives.  Those are the kind of things that

happened. 

So what we have to do, first, is make sure we don‘t have anything

that‘s too big to fail.  Right now—Professor Simon from MIT pointed out

that right now the top six banks, their assets are 67 percent of the gross

domestic product.  Fifteen years ago, they were 17 percent. 

We have two banks, Goldman Sachs and Morgan Stanley, which have never

been in the banking business before.  We set it up and we did the right

thing.  They were going to go bankrupt—we were going to have problems

with them, so we allowed them to bank holding companies. 

But right now they should not be bank holding companies.  We have to

deal with Citigroup, has I think two trillion dollars worth of assets.  We

have to do something in order to break them apart.  That is why I co-

sponsored, with Senator Cantwell and Senator McCain, a bill to bring back

the Glass-Steagall regulations. 

O‘DONNELL:  Senator, in the wake of—and now that we are still in

the economic recession that crashed onto us, the public is now at 82

percent in favor of stronger regulations for Wall Street.  That is the kind

of numbers where, in the Senate, you think nothing can stop it.  But

something has stopped it.  Something has slowed it down. 

Are you finding your voice on this because you are not running for re-

election, because you are not looking for any contributions from any

banking interests, as many other senators and congressmen are, and you‘re

not looking for contributions from any corporate interests or anyone?  Does

that give you the freedom to stand up and say, this is the way it should

be? 

KAUFMAN:  Yeah.  I don‘t think so.  You can‘t ever tell, Because until

you‘re sitting in a perfect position, you don‘t know where you are.  That

is not really kind of where I‘m coming from.  I‘m really trying to reflect

what I think the vast amount of Americans—starting with where the vast

Americans are, number one.  Number two, how devastating this was.  All I‘ve

tried to do is say, OK, I know 14 months is an eternity in Washington

because I‘ve been here. 

But let‘s go back to 14 months ago, and let‘s see where we were, and

let‘s see how we got there, and let‘s how we got out of the last two years,

and just sit down and say, look, this is what we should do. 

Lawrence, the way I feel about this thing is they keep saying, why

should we be doing these things?  I say the burden of proof on those who do

not want to go back to the things that worked in the past, such as Glass-

Steagall, such as the uptick rule, such as the things that worked for

regulation by the SEC—I think those are the things that we have to look

for, consumer product safety. 

O‘DONNELL:  Senator Kaufman, Democrat of Delaware, thank you for your

time. 

KAUFMAN:  Thank you. 

O‘DONNELL:  Senator, I just have to add, you are living the dream of

every Senate staffer, to get promoted into one of the big chairs and have a

vote there.  All of us former Senate staffers who are watching you do it

are very proud of how this has turned out. 

KAUFMAN:  I want to thank you very much.  That is the only pressure on

me.  I have all those wonderful staff people that I have to live up to.  So

it keeps me going, Lawrence. 

O‘DONNELL:  That‘s right.  Thanks, senator. 

KAUFMAN:  Sure. 

O‘DONNELL:  Coming up, were government regulators asleep at the wheel

in protecting drivers from the acceleration problems with Toyotas? 

Also ahead, Keith will be back with advice on why life panel

discussions aren‘t enough.  You need to have a living will.

(COMMERCIAL BREAK)

O‘DONNELL:  Now to the ongoing crisis at Toyota.  Today on Capitol

Hill, lawmakers holding yet another hearing.  This time it was government

regulators in the hot seat.  The agency responsible for auto safety is now

considering making data recorder systems in cars mandatory.  But two

recalls later, did the government do all it could to protect drivers? 

NBC‘s Tom Costello has the latest.  Tom? 

TOM COSTELLO, NBC NEWS CORRESPONDENT:  Hi, Lawrence, good evening. 

Toyota right now has 5.6 million vehicles in the US under recall for sticky

gas pedals and brake issues and floor mat issues.  Today, a fourth

Congressional hearing—and this one looking at where have government

regulators been. 

(BEGIN VIDEOTAPE)

COSTELLO (voice-over):  On the hot seat before Congress, the brand new

chief of the National Highway Traffic Safety Administration, NHTSA, who

today defended his agency‘s handling of Toyota and its recalls. 

DAVID STRICKLAND, NHTSA CHIEF:  I don‘t see Toyota as an indicative

example of failure.  I see it as NHTSA doing its job. 

COSTELLO:  NHTSA and its 21 investigators are under fire for allegedly

having far too cozy a relationship with the auto-makers they police.  “The

Washington Post” found as many as 33 former employees at the Department of

Transportation and the National Highway Transportation Safety

Administration have left those jobs in recent years and now work for auto-

makers, lawyers and lobbyists for auto-makers, including two former NHTSA

officials who are helping Toyota deal with its current problems. 

That‘s not illegal, but consumer advocates are troubled by the

revolving door relationships between auto-makers and the government. 

CLARENCE DITLOW, CENTER FOR AUTOMOTIVE SAFETY:  You can‘t protect the

public the way that Congress intended if you are closing investigations

based on representations from former employees. 

COSTELLO:  Today, Congress wanted to know why there hasn‘t been a

government-ordered recall of any vehicle in 31 years. 

UNIDENTIFIED MALE:  Can you explain to all of us, then, why your

agency, NHTSA, has not initiated a recall since 1979? 

COSTELLO:  Strickland‘s answer, auto-makers quickly issue voluntary

recalls when safety issues arise. 

STRICKLAND:  And we influence well over half of the recalls that are

happened every year. 

UNIDENTIFIED MALE:  Well, count me as skeptical. 

COSTELLO:  Critics insist Toyota‘s multiple recalls were far too slow

in coming, that Toyota and NHTSA were away of problems with stuck gas

pedals as early as 2003.  Toyota‘s accelerator recall is the seventh

largest on record, at 3.8 million.  The biggest recall involved Ford in

1996; 7.9 million vehicles were recalled because of a fire-prone ignition

switch. 

(END VIDEOTAPE)

Well, with NHTSA on the hot seat today, the Department of

Transportation also released some good news to at least temper the NHTSA

news.  And that good news is that in 2009 there were far fewer total

fatalities on the nation‘s roads than ever before, since 1956.  In fact,

10,000 fewer in just five years.  Certainly cars are a lot safer today than

they ever have been.  But, also, with unemployment near and above 10

percent in some cases, there are fewer people driving to work. 

Lawrence? 

O‘DONNELL:  Tom Costello, thank you. 

Coming up, Keith returns to relay a warning he got from a health care

provider.  Why an EMT pleaded with Keith to tell the COUNTDOWN viewing

audience how critical it is for everyone to have a living will.  Keith

brings you that story, along with some practical advice on making that

happen.  Next on COUNTDOWN.

(COMMERCIAL BREAK)

OLBERMANN:  And good evening again from New York.  As promised, an

update on my father‘s health and some important words from an EMT about

your health and what is done to you in the hospital when you are not

conscious enough to say anything about it. 

My father, after three weeks nearly of being sound asleep, not in a

coma, not unconscious, but so sick he could not wake, has opened his eyes. 

We don‘t know the prognosis.  We went through a lot in the last three

weeks, including some very risky and dangerous even procedures that we all

had to gather together and decide whether or not it was appropriate to do,

whether or not it fit in exactly with my father‘s guidelines and

instructions. 

However, because of the number of conversations we had, the life panel

we had with and without physicians, we were able to know that what we were

deciding was not a question of an elephant or a mouse, but the choice of

two different mice.  We knew that if we were wrong, we were only wrong by a

little bit of doing exactly what he wanted.  That is the essence of having

the conversation with your loved ones, even if you are all perfectly

healthy and young, about what to do when that time comes, if it comes at

some point, hopefully in the distant future. 

But as I was saying earlier in the show, as I left my father‘s

hospital room, I was accosted by an EMT, an emergency medical tech, who had

seen me coming in the opposite direction, stopped his vehicle and ran half

a block.  He was out of breath as he talked to me and said, you have to

tell them the other things.  You have to talk not just about life panels

but about living wills. 

You should have a living will right now, before the end of business

tomorrow, if you can arrange it.  He said, all I do—my entire career is

now reduced to this: shuttling people who are unconscious and have no hopes

of ever recovering from hospitals to the hellholes.  He meant by the

hellholes nursing homes.  Many of them are wonderful facilities.  Some of

them are as he described them. 

He said all do I is take people, at tremendous cost, from place to

place, to do things that do nothing in terms of getting them to recover,

but only pertain to keeping them technically alive.  Leave instructions. 

Leave living wills.  Leave a note in your wallet that says, this is what I

want you to do.  This is what I don‘t want you to do.  And here is who

speaks for me if I cannot.  Have it with you. 

So the question then becomes legally, what is a living will?  It‘s

also known as an advanced directive or health care directive or physician‘s

directive.  The requirements for any legal document vary state to state, so

it‘s a good idea to have a lawyer‘s help on this. 

In a living will, you declare exactly which life-prolonging treatments

are acceptable.  As long as you can speak for yourself, the living will

will not be triggered.  It takes effect only if you become incapacitated,

and even then, it usually requires a certification by two doctors that you

are either permanently unconscious or suffering from a terminal illness. 

For example, if you were to lose your consciousness from something

like a heart attack, which is not necessarily terminal, the living will

would not—would not be triggered.  And at least two people will be

familiar with your living will—your primary doctor and a person you

designate as your health care proxy. 

The health care proxy does not need to be a family member.  In the

case of my father, I‘m his health care proxy.  It certainly will not hurt

if you carry a copy of your living will in your pocket, including the

contacts for your doctor and for your health care proxy. 

There are other situations that are not life threatening, which can

require a health proxy, and the health care power of attorney, as it is

called in most states.  That may be a separate document or part of the

living will itself.  We can discuss that in length at another time. 

It is also useful to make other people aware of your living will,

family, friends, religious advisers, simply because it increases the odds

that caregivers become immediately aware of your wishes.  Much of this

information is courtesy of AllLaw.com, to which we refer you for more

details. 

Finally, all of the decisions about treatment options should obviously

be discussed with your doctor or doctors before you execute a living will. 

And the process by which health care reform would permit you and your

doctor or doctors to be reimbursed for that discussion is what Mrs. Palin

and the others who do not care have called death panels.  We call them life

panels. 

Finally, for a little levity in this, I‘m indebted, in fact, to Rush

Limbaugh.  Rush Limbaugh, of all people, announced on the subject of health

care reform the following: “I‘ll just tell you this.  If this passes and

it‘s five years from now and all that stuff gets implemented, I‘m leaving

the country.  I‘ll go to Costa Rica.” 

The last we heard about the sunny nations of vacation and the subject

of health care from this self-inflating life raft of condescension and

misinformation, Mr. Limbaugh was being stopped at customs on his way back

into this country from the Dominican Republic while carrying somebody

else‘s Viagra. 

But Costa Rica?  Really?  Costa Rica, where they have had for 60 years

a hybrid public and private health care system, and all the insurance there

is sold by the government?  Rush Limbaugh endorsed single payer? 

Thank you for your attention and for all of your kind words again

about my father‘s health.  As was once said by George M. Cohan, my father

thanks you and I thank you. 

“THE RACHEL MADDOW SHOW” is next.  For Lawrence O‘Donnell, I‘m Keith

Olbermann, good night and good luck. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY

BE UPDATED.

END   

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