Commentary

A Republican Senate Takeover Won’t Doom Surveillance Reform

Late on the evening of May 29, 2014, California Rep. Zoe Lofgren (D) called a small, bipartisan group of lawmakers to her office in the Longworth Building on the Capitol Hill campus. Seated around the large conference table with Lofgren were Reps. Rush Holt (D-NJ), Beto O’Rourke (D-TX), Tulsi Gabbard (D-HI), Tom Massie (R-KY) and Justin Amash (R-MI). The mix was fascinating, with some of the House’s most liberal Democrats joining forces with two leaders of the Tea Party movement around an issue all were in complete agreement on: the urgent need to roll back the “surveillance state.”

For several days before the meeting, this group had contemplated offering a series of amendments to the Justice Department’s (DoJ) annual appropriations bill (on the House floor the night of the meeting) that would limit or cut funding for the USA PATRIOT Act’s Section 215 metadata collection program, the abuse of which had come to light almost a year earlier through the revelations of former National Security Agency (NSA) contractor Edward Snowden. Just a week earlier, several of these same members had voted against a watered-down NSA reform bill, the USA Freedom Act, which supporters contended would have ended the NSA’s bulk collection of America’s communications had the bill not been neutered by the leadership of the House Intelligence and Judiciary committees. Having been outmaneuvered during the USA Freedom Act legislative fight, the small coalition of progressive and libertarian-leaning lawmakers spent an hour that May night working out their strategy for the next round. Given the late hour and the likely difficulty in rounding up votes on short notice, they decided to pass on trying to amend the DoJ bill and instead chose to focus on the upcoming Defense Department (DoD) appropriations bill battle, which was expected to take place in June. It was the first of several such meetings, supplemented by almost daily contact between their staffs, that would take place over the next three weeks.

The amendment they drafted and ultimately offered was deliberately kept simple and focused on two key issues: cutting funds for intelligence agency searches of the “Section 702 database” and barring the government from forcing American technology companies to build “back doors” to their products that would make NSA surveillance — warrantless or otherwise — easier. The former issue involved information collected under § 702 of the 2008 Foreign Intelligence Surveillance Amendments Act (FISA Amendments Act). While ostensibly designed to collect information on known or potential foreign terrorists or their organizations, Snowden revealed that the authority had been used daily to collect data on Americans communicating with virtually anyone overseas, a practice often referred to as “reverse targeting.” Indeed, when the FISA Amendments Act was being debated on the House floor in 2008, Holt predicted the authority would be abused, as did others.

By the time the Fiscal Year 2015 DoD appropriations bill reached the House floor for debate in mid-June 2014, Amash, Holt, Lofgren and Massie had lined up support from key lawmakers in both parties. Yet they still lacked backing from the House Republican or Democratic leadership, who were generally supportive of the surveillance programs in their current form. The progressive-libertarian coalition had also mobilized outside groups from across the political spectrum—ranging from the left-leaning Bill of Rights Defense Committee to the libertarian-leaning FreedomWorks. The night of the vote on the NSA reform amendment, FreedomWorks announced it was “scoring” the amendment as a “key vote yes” just minutes before the roll call vote began—an unmistakable signal to House Republicans that voting against the amendment would carry potentially lethal political consequences. The result was dramatic: 134 Republicans voted for the amendment, including many who had voted for the weakened USA Freedom Act less than a month earlier. The full vote was 293-122 in favor of the amendment—a  level of support for the measure sufficient for a bipartisan veto override.

Just before the summer Congressional recess, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) reintroduced the USA Freedom Act, which largely mirrored the original House version. (I have written elsewhere about the deficiencies with the Leahy bill and the legislative strategy being used to push it). What matters for purposes of this discussion is that the Senate thus far has not taken action on either the Leahy bill or the FY-15 DoD appropriations bill.

This brings us to today’s Congressional elections: what comes next for surveillance reform?

Yesterday, I wrote that a Republican Senate takeover won’t mean the end of efforts to rein in overzealous surveillance practices, thanks to the makeup of candidates running today. But there are two additional, powerful factors that will ensure the 114th Congress takes up surveillance reform. The first is the fact that the expiration of the PATRIOT Act and the FISA Amendments Act represent fulcrums for reform. The second is the critical role certain outside groups will play in ensuring reform becomes reality no matter who wins tonight.

Expiring Laws = Fulcrums for Reform

The fact that both the PATRIOT Act and the FISA Amendments Act are set to expire in 2015 and 2017,  respectively, gives surveillance reform advocates their greatest leverage in this ongoing battle. That dynamic will shift the balance in the contest. Instead of being able to use procedural gimmicks to derail reform efforts, supporters of the surveillance status quo will have to come up with votes to pass renewals of both laws. Regardless of the outcome of the House races, the votes will not exist in that chamber to renew either law in its current form. The PATRIOT Act’s author, Rep. Jim Sensenbrenner (R-WI), made that perfectly clear during the July 2013 hearing on the Section 215 metadata program abuses made public by Edward Snowden. This will be particularly true if electoral players like FreedomWorks remain committed to supporting genuine surveillance reform legislation during the “lame duck” or in the 114th Congress.

Outside Groups Hold The Key

Earlier in this post, I noted the incredibly powerful effect that FreedomWorks scoring of the Holt/Lofgren/Massie amendment had on the outcome of the vote. Prior to the passage of that amendment in the House, the last real reform effort that came close to passing was the Amash amendment to the Fiscal Year 2014 DoD appropriations bill. That amendment only garnered 94 Republican votes in favor. The Holt/Lofgren/Massie amendment this year garnered 134, an increase attributable to FreedomWorks. There is no equivalent force on the political left (i.e., groups that score votes, endorse/oppose candidates, maintain PACs, etc.) pushing the surveillance reform agenda. That political power gap on the surveillance reform issue is something progressives ignore at their peril. Indeed, FreedomWorks’ activities could serve as a model for progressives to emulate.

In the aftermath of the Supreme Court’s decision in the Citizens United case, most on the left bemoaned the decision and sought the usual panoply of remedies for the perceived problem, such as constitutional amendments and increased transparency measures. Yet one man decided to take a very different approach. Harvard Law School Professor Lawrence Lessig chose to use the Citizens United decision to create his own super PAC, MAYDAY, whose objective is to elect federal legislators committed to overturning the Citizens United decision. Lessig’s PAC will get its first test this mid-term cycle. His willingness to abandon the traditional “501(c)(3)” advocacy approach in favor of direct involvement in the electoral process is a model progressive civil liberties activists would do well to copy if they want to remain relevant in the legislative and political process.

Strategy and Prospects

With respect to the “lame duck” session of the 113th Congress, reform advocates still have an opportunity this year to secure inclusion of the Holt/Lofgren/Massie amendment in any final DoD or omnibus appropriations bill. This would be “must pass” legislation that surveillance reform opponents would be hard-pressed to oppose. Success there would create momentum for the coming fight.

The legislative fight over existing surveillance law is not taking place in a vacuum. Events here at home and abroad certainly hold the potential for shaping the debate, or even torpedoing the reform effort. However, it is more likely that 2015 will be the year when Congress is finally forced to take substantive, long-term action to bring an end to surveillance practices that have undermined our liberty in ways the Founders could not have imagined.

One of the great things about this format is that if you make an obvious mistake, an informed colleague is sure to catch it. In this case, it was Kevin Bankston at the Open Society institute who correctly pointed out that my assertion about the FISA Amendments Act expiring in December 2015 was in error. In fact, because of the FAA reauthorization passed in 2012, the actual expiration date is currently December 31, 2017.

Does this change my analysis? Actually, just the opposite. The fact that the FAA sunset is unlikely to change any time soon gives added weight to the importance of the Holt/Lofgren/Massie amendment in the looming legislative battle.

Finally, last night’s mid-term results—which I think so far have tracked with my predictions earlier this week—mean that the votes still do not exist in the House to renew the PATRIOT Act provisions that will expire in June 2015. Hope for reform remains alive.

Patrick G. Eddington was senior policy advisor to Rep. Rush Holt for over 10 years. He is currently a Policy Analyst in Homeland Security and Civil Liberties at the Cato Institute.