Conventional wisdom within at least the left‐leaning portion of the civil liberties community is that a Republican takeover of the Senate would be the death knell for surveillance reform. While it might mean the end for the Senate version of the USA Freedom Act, Republican control of the Senate would not mean the end of any prospect for surveillance reform. To understand why, we need to take a look at the likely composition of Congress after Nov. 4.
The post‐election Congress
The progressive‐libertarian coalition is losing a key leader with the departure of Rush Holt, who in February 2014 announced he would not seek reelection. The concept for the “back door” prohibition in the NSA reform amendment attached to the DoD appropriations bill came directly from Holt’s Surveillance State Repeal Act, and he was frequently looked to by his Democratic colleagues for voting advice on NSA‐related legislation. There are additional departing progressive Democrats like George Miller, Henry Waxman and John Tierney who were also reliable surveillance reform votes but who will likely be replaced by equally left‐leaning members highly likely to support surveillance reform efforts.
On the other side of the ledger, defenders of the surveillance status quo lost three vocal members of the House Republican leadership: ousted Majority Leader Eric Cantor, as well as retiring House Intelligence Committee chairman Mike Rogers and House Armed Services Committee chairman Howard “Buck” McKeon. However, their likely replacements are reliable supporters of existing surveillance authorities.
If continued political stasis among returning members is expected, what about the handful of genuinely competitive House seats? One can get a reasonable idea about which seats are in play from Charlie Cook or Stu Rothenberg. There is unanimity among political analysts that Republicans will maintain control of the House in 2015. However, this issue does not split along traditional partisan lines: what matters more than the conventional red‐blue divide is whether the candidates in a given race are for or against the “surveillance state” status quo.
Of the 16 races that are in play, almost half involve candidates with surveillance reform records or platforms. All of those pro‐surveillance reform candidates are incumbent Democrats, at risk of becoming victims of a Republican electoral wave, and many of their opponents have been either silent on or opaque about their views on surveillance law changes. However, a limited number of known surveillance reform advocates losing this cycle will probably not be enough to outright jeopardize surveillance reform prospects in the House in 2015, given the overall number of House members already on record supporting reform. Moreover, any such losses will have no effect on any “lame duck” House session action on surveillance reform legislation.
The United States Senate provides a more ambiguous picture because the chamber has not voted on any NSA reform legislation in the 113th Congress and several Senate candidates have not gone on the record about surveillance reform. Even so, some of the races underway do involve candidates with public track records on the issue, thus giving us some insight on how they might come down on the issue should a bill dealing with the surveillance controversy come up in either the 113th’s lame duck session or in the new Congress. A preview of the most important races (all of which are currently within the margin of error in most polls) follows.
There are many on the left side of the civil liberties spectrum who are in a virtual panic that incumbent Democrat Mark Udall of Colorado may lose to a Republican Cory Gardner, who gave up his House seat to challenge Udall. While it is true that Gardner voted in 2011 to extend the expiring PATRIOT Act provisions and in 2012 to extend the FISA Amendments Act, his key votes since then have been in the opposite direction. What those groups on the left most likely fear is a loss of influence and/or access should Gardner prevail, but that does not mean Gardner will be shilling for the NSA, particularly given his voting record in the 113th Congress.
The situation is clearly different in Arkansas, where House Republican Tom Cotton is seeking to oust incumbent Democrat Mark Pryor. To say that Cotton is a strong supporter of existing surveillance laws would be something of an understatement. In my view it is this race, and not the Colorado contest, that may have the most impact on surveillance reform chances in the Senate in the 114th Congress. Cotton’s wartime military experience in Iraq and Afghanistan lend an emotional–not necessarily factual–weight to his contention that curbing existing surveillance authorities would jeopardize American lives abroad and at home. If elected, he would quickly become the face of surveillance reform opposition in the Senate.
In Louisiana, Democratic incumbent Mary Landrieu is facing Republican House member Bill Cassidy in another contest currently within the margin of error. Landrieu was the sponsor of the PATRIOT Act extension bill in the Senate in 2011 and voted to extend the FISA Amendments Act in 2012. Cassidy’s record is more schizophrenic, mirroring Landrieu on the PATRIOT Act and FISA Amendments Act votes but also voting for the 2013 Amash amendment to the FY14 DoD appropriations bill and most recently the Holt/Lofgren/Massie amendment to the FY15 DoD appropriations bill. On balance, I assess Cassidy as being potentially more persuadable to support reform efforts.
In Kentucky, Senate Minority Leader Mitch McConnell comes to the race with Democrat Allison Lundergan Grimes with a clear record of supporting existing surveillance law. Grimes has not engaged on that issue as a part of her campaign, making her an unknown quantity on the issue.
New Hampshire voters have two candidates who both voted for the PATRIOT Act and FISA Amendments Act reauthorizations in 2011 and 2012, respectively. Former Massachusetts Senator Scott Brown is seeking to oust incumbent Democrat Jeanne Shaheen, but the outcome of that race will likely be a wash on the surveillance reform question.
North Carolina’s contest between Democratic incumbent Kay Hagan and Republican Thom Tillis is another possible pick up for Republicans. Hagan also voted to extend the PATRIOT Act and FISA Amendments Act; Tillis has not taken a position on whether existing surveillance authorities go too far.
The contest in Iowa pits consistent “surveillance state” opponent and Democratic House veteran Bruce Braley against Republican Joni Ernst, who has been more ambiguous about how she would deal with surveillance reform legislation. Braley’s defeat would be a setback for reform efforts.
Incumbent Democrat Mark Begich versus former Alaska attorney general Dan Sullivan is another clear‐cut contest on the issue. Begich voted against the PATRIOT Act and FISA Amendments Act reauthorizations; Sullivan supports current surveillance law.
The Georgia contest between Democrat Michelle Nunn and Republican David Purdue is another election match up in which neither candidate has stated a clear position on surveillance law reform. Nunn’s political heritage–her father is former Georgia senator and Senate Armed Services Committee chairman Sam Nunn–might make her inclined to tread cautiously where the surveillance reform issue is concerned.
The same cannot be said of the race in Kansas, which pits former Senate Intelligence Committee chairman and NSA supporter Pat Roberts against relative unknown independent Greg Orman. Orman has not addressed the Snowden revelations or the surveillance reform legislative proposals currently under consideration.
While there are a few other Senate contests underway, the ones I’ve focused on here are likely to have the greatest impact on the prospects for surveillance reform in the upper chamber. As of this moment, surveillance reform supporters should be most concerned about the outcomes of the races in Alaska, Arkansas, and Iowa.
So if surveillance reform opponents pick up 3–4 Senate seats, is the reform effort doomed? Hardly. I will explain why in a post later this week, exploring why expiring laws provide key fulcrums for reform, and why outside groups could play their own pivotal role.