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Strange Bedfellows Block Patriot Act

Brian Lehrer in Conversation with Julian Sanchez

Wednesday, February 09, 2011

House Republicans led by House Minority Leader John Boehner (R-OH) (Chip Somodevilla/Getty)

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer Show, Julian Sanchez, research fellow at the Cato Institute, discussed the failure of the Patriot Act extension on Tuesday and the right-left coalition that successfully blocked it.

The House of Representatives voted Tuesday by a margin of 277-148 to extend certain provisions of the decade-old Patriot Act. And yet, this "victory" was bad news for a lot of Republican lawmakers.

That's because they didn't cover the spread, so to speak. House Republicans had hoped to pass the resolution extending the Patriot Act with a two-thirds supermajority under a special set of rules, which is usually what happens with non-controversial legislation that's expected to pass easily. Such "suspension" bills, so-called because they allow for the suspension of the normal House procedures that allow for extended debate, get expedited and reach the floor quickly. Confusing, we know, but Julian Sanchez can help.

This is basically what they use when they want to pass a resolution declaring that puppies are wonderful or that a post office needs to be renamed. It's supposed to be for very uncontroversial bills. Except last year when they did the same thing and extended these provisions for a year, it did pass by over 300 votes under a suspension.

Republicans expected surveillance measures like warrantless wiretapping to be as popular as puppies, at least with a right-leaning Congress. But the GOP was dealt a surprise blow when 26 House Republicans broke ranks and voted with Democrats against the resolution. Because normal rules were suspended and the resolution received only a simple majority, it didn't actually pass. So it's now back to the drawing board for a House leadership that wants these Patriot Act provisions extended.

Just what were legislators voting on Tuesday night? Sanchez said that three key provisions on the table were "roving wiretaps," which allow officials to follow a target from phone to phone, rather than tapping a single line; the "lone wolf" provision, which allows non-U.S. persons who are not actually members of terror groups or "agents of foreign power" to be followed; and a measure allowing seizures of "any tangible thing from a third party with a Foreign Intelligence Surveillance Act court order."

So what happened? At first blush, recent tension in Republican ranks suggests that Tea Party freshmen would be the foundation for such a schism. But Sanchez said that's not exactly the case, possibly hinting at deeper divisions among conservatives than most people realize.

It's not actually that Tea Party-heavy a list. If you look at the Republicans, there were 26 who voted against reauthorization; only about eight were freshman swept in on a Tea Party wave. A lot of the prominent Tea Party figures, Michele Bachmann, Allen West, voted for reauthorization. It's interesting to watch some of these folks getting pushback from their own constituency. Jason Chaffetz from Utah had initially signalled that he wasn't sure which way he was going to vote. He ended up supporting the Patriot Act, but if you go over to his Facebook page, you'll find he's getting a substantial amount of flak for it.

Unless you have avoided a newspaper for the past two years, this modicum of inter-party unity is pretty shocking. Democrats and Republicans voting together—who knew? But according to Julian Sanchez, the Patriot Act controversy actually has a quiet history of making strange bedfellows.

This is nothing new. People forget very quickly, maybe in part because it's the base that you find coming together on these issues against often a Washington consensus in favor of these surveillance measures, or at least a consensus in favor of being terrified of opposing them...But even going back to the original passage of the Patriot Act, you found folks like Grover Norquist and Americans for Tax Reform, these arch-conservatives teaming up with the ACLU. So there's a long tradition, not always within the elected Republican party establishment itself, but certainly across ideological boundaries, of people who are protective of civil liberties and skeptical of intrusive government.

Despite such harmony, the Obama administration has made it clear that it wants to see these provisions extended through 2013—and has surreptitiously worked toward making that a reality in the past. The result, Sanchez said, has been a much less pretty picture of bipartisan "cooperation."

Obama has always said that he thinks the provisions should be renewed, but need to be fixed to be more narrowly focused on terrorists and to better protect civil liberties. What you found happening during last year's debate was that the Obama Justice Department would publicly take no position on a series of proposed civil liberty reforms, then you'd find amendments essentially drafted by the Justice Department laundered through Republicans and introduced in Congress, stripping away civil liberty protections sponsored by Democrats. A kumbaya, reaching-across-the-aisle moment, though less overt.

In the wake of Tuesday's defeat, House Republicans will now have to resort to normal House procedures in order to renew these Patriot Act provisions, for which only a simple majority will be required. However, that means extended debate and a much more drawn-out battle over this issue in the weeks to come. And as this last vote proved, we can still expect the unexpected from this Congress.

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Julian Sanchez

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Comments [3]

Julian Sanchez from Cato

John B makes a fair point, but Internet records would most likely be obtained upstream from the library's ISP, and in most cases that would probably be done via a National Security Letter rather than the "library records" provision. In any event, while I'm absolutely grateful librarians have been so engaged on this, it does seem to have generated a strange dynamic where legislators propose all these safeguards specifically governing libraries, when in practice you can get a hell of a lot more detailed picture of most people's reading habits by looking at IP logs from their broadband or mobile provider, or credit card purchase histories.

Feb. 09 2011 11:34 AM
Gaetano Catelli from Dixieland, USA

fwiw, i *cringe* every time i hear "P/patriot" used as a correlative (mirroring my comments on the previous segment of the show regarding the word "smart").

in both cases, the terms *strongly* imply that the opposition is the terms' opposite.

(ah, the masochism of being an engaged centrist)

Feb. 09 2011 11:22 AM
John B from Inwood, Manhattan

Many people's access to the Internet is through their public library - for those people library records are the same as Internet history. But people associate opposition to the PATRIOT Act with librarians because back in the dark days of 2003 librarians were one of the few professional groups to stand up for civil liberties.

Feb. 09 2011 11:13 AM

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