As we’ve noted, there’s a new USA Freedom Act in town, and it’s on the fast track through Congress. It has some good stuff in there, and is generally a step forward on surveillance reform and ending certain forms of bulk collection — though there are some concerns about how it can be abused. But one thing that plenty of people agree on, is that even if it’s a step, it doesn’t go nearly far enough. Last Thursday, there was a markup in the House Judiciary Committee, to help move the bill to the floor, and some amendments were proposed to improve the bill — all of which got rejected.
What was especially frustrating, was that for at least one key amendment, everyone agreed that it was important and supported it, and yet they still refused to support it. The reasoning, basically, was that the existing bill was the work of many, many months of back and forth and compromises, and the administration and the House leadership had made it clear that it would not approve a single deviation, even if it was really important. The amendment in question was basically a replica of an appropriations amendment from Reps. Ted Poe, Zoe Lofgren and Thomas Massie that we wrote about last year, which surprised many by passing overwhelmingly in the House, only to be stripped out by the Senate. The key idea: ending the ability of the NSA and others to do “backdoor searches” on data collected under Section 702 of the FISA Amendments Act (both the “upstream” collection and PRISM). And even though everyone supported it, they couldn’t go forward with it and upset the rest of the process:
It was clear from their comments that a majority of committee members supported the goal of the amendment. Indeed, no member spoke against it on substantive grounds. But Committee Chair Bob Goodlatte (R-Va.) explained that the bill represents a fragile compromise — primarily with members of the House Intelligence Committee (HPSCI) — and that House leadership had made clear the bill would not get a floor vote if the Judiciary Committee amended it. (Whether leadership is carrying the water for HPSCI or vice versa — and what role the administration is playing here — are unanswered questions that deserve their own blog post.) The members were faced with a choice: acknowledge the terms set by House leadership and vote against an amendment designed to restore critical Fourth Amendment protections for Americans, or reject those terms and possibly derail surveillance reform altogether.
That’s where things got interesting, as the members spent an hour thoughtfully parsing what the right course of action was. (In the video, the amendment was proposed at 1:11:00.) More than one member characterized Poe’s amendment as an example of “the perfect being the enemy of the good.” There was consensus that back door searches implicate the Fourth Amendment. But, Goodlatte said, so does the bulk collection of Americans’ phone records — an important statement, given the FISA Court’s controversial rulings to the contrary. By killing the bill’s chances of a floor vote, Goodlatte implied, Poe’s amendment would be a net negative for the Fourth Amendment. Goodlatte also pledged to hold hearings on Section 702 in the near future, and to work with Poe to find opportunities outside of the context of the USA Freedom Act to address the problem.
Other members, though, were not willing to accept House leadership’s efforts to constrain them. Rep. Zoe Lofgren (D-Calif.) posed the key question of the morning: what can members do when House leadership is blocking reform favored by a majority of the House? Poe’s amendment mirrored an amendment offered last year by Lofgren and Rep. Thomas Massie (R-Ky.) to a defense appropriations bill; that amendment passed overwhelmingly, 293–123, with 94 Republicans voting in favor. Lofgren suggested it might be time to consider a discharge petition — a procedural measure by which a majority of House members can bring legislation to the floor for a vote even if House leadership objects. She acknowledged that it’s difficult for the majority to buck the will of leadership, but that this was a case of “right versus wrong,” pitting the Constitution against “lawless behavior.”
Poe showed even more frustration. Addressing Rep. Jim Sensenbrenner’s (R-Wis.) observation that the Committee would have a chance to revisit Section 702 in 2017 when the FAA expires, Poe observed dryly that the Committee was not simply delaying the building of a bridge. It was delaying vital Fourth Amendment protections for Americans. He put the question simply: do politics trump the Constitution, or does the Constitution trump politics? He urged fellow committee members not to let leadership’s threats dictate their vote. He said they should support the amendment and let the political chips fall where they may.
And, yes, of course, in the end the amendment was rejected 24 to 9. I think the whole “perfect is the enemy of the good” argument made by some is clearly bogus in this scenario. The only “good” to come out of this is the fact that Poe, Lofgren and others aren’t willing to let this matter drop — though the idea of waiting until 2017 to address an issue that we already know the majority of the House supports, is pretty ridiculous. Especially when pretty much everyone agrees that we’re talking about violations of the 4th Amendment.
Hopefully this means that this issue will get addressed separately, even if not in this particular bill. The fear, as always in this sort of situation, is that after the Herculean effort just to get this far to get this particular bill approved, that no one will have the appetite to continue the process and get the other necessary reforms in place.