Last Wednesday became a curious spectacle about surveillance reform that set up a dramatic showdown on Capitol Hill late Friday.
The first part was a filibuster, in which Sen. Rand Paul, R-Ky., occupied the floor during the ongoing trade debate, which, to simplify complex Senate procedure, prevented Senate Majority Leader Mitch McConnell, R-Ky., from filing for cloture. In turn, this meant cloture could not be invoked until Saturday — after the House had left for recess. During the filibuster, Paul unexpectedly ended up reading one of Sunlight’s articles about the USA FREEDOM Act of 2015.
But the most important effect was setting the stage for a breaking point, which occurred just before 1 a.m. on Saturday (when the cloture motions had ripened). In effect, the Senate faced a choice: the House-passed USA FREEDOM Act (which is considered by some to be modest reform, and others — including Sunlight — too small a step at too great a price1); a “clean” reauthorization of Section 215 without any reforms for two months; or no action at all, which would result in Section 215 and two other provisions of the USA PATRIOT Act simply expiring (Sunlight’s preferred outcome). If any bill other than the House-passed USA FREEDOM went through the Senate, it would require action by the House (before sunset on June 1).
First, USA FREEDOM failed with 57 votes in favor — three shy necessary to invoke cloture. While that was a success, the pervasive threat reformers have been facing was that a short-term reauthorization would be an even closer vote. That’s certainly what McConnell and Sen. Richard Burr, R-N.C., had bet on.
So, we couldn’t have been happier when that two-month reauthorization failed next, with only 45 votes in favor. Not achieving even a simple majority — on a bill heavily whipped by leadership — was a resounding rebuke of the idea that secret, mass surveillance of Americans can or should continue.
Then, the denouement: McConnell tried to get several even shorter extensions passed, of only days. But the senators who are leaders in this — from Paul to Sens. Ron Wyden, D-Ore., Martin Heinrich, D-N.M., and others — objected to bringing any of them to the floor.
With clean reauthorization dead (for now), we expect more moderate hawks to switch in favor of USA FREEDOM Act. And while that’s an outcome Sunlight opposes (in favor of full sunset), we’re happy to see the lawmakers fighting for reform and proud to be part of an effort that just may have killed the modern bogeyman of surveillance reform: the “clean” reauthorization.
1 On the note of USA FREEDOM’s flaws, the Inspector General of the Department of Justice released on Thursday a report on the FBI’s use of Section 215 from 2007-2009. It’s worth a read, and confirms that if USA FREEDOM passes on May 31 when the Senate returns, mass surveillance of Americans will still occur under Section 215 — and the FBI, under the act, won’t be required to report on it.