- The USA Freedom Act failed to break a filibuster Tuesday.
- The opposition came from Republican Senators, though some, like Ted Cruz (R-TX) and Mike Lee (R-UT), voted for cloture.
- The legislation would have placed stricter limits on NSA surveillance — especially its controversial phone records program.
How did the Senate vote break down?
The vote split almost along party lines. On Tuesday, two key Democrats on opposite sides of the debate declared their support. Sen. Ron Wyden (D-OR) has been the NSA's most vocal critic in the Senate in recent years. Sen. Dianne Feinstein (D-CA), who chairs the Senate Intelligence Committee, has been one of the agency's most reliable supporters. But both have decided to vote in favor of the legislation. As a result, all but one Democrat — Bill Nelson of Florida — voted in favor of letting the bill come to a vote.
But 41 Republicans voted in opposition, enough to block supporters from reaching the 60 votes they needed to end debate on the legislation.
Interestingly, Kentucky's two Republican Senators, Rand Paul and majority leader Mitch McConnell, opposed the bill for opposite reasons. Paul thought it didn't go far enough, while McConnell believed it tied the NSA's hands too much.
The only four Republicans to vote in favor of the legislation were Ted Cruz of Texas, Mike Lee of Utah, Dean Heller of Nevada and Lisa Murkowski of Alaska.
What would the legislation have done?
The original version of the USA Freedom Act, introduced by Rep. James Sensenbrenner (R-WI) in October 2013, had a number of provisions on the wish lists of civil liberties groups. But by the time the legislation was approved by the House of Representatives in May 2014, it had been watered down so much that leading civil liberties groups opposed it.
So, in July, Sen. Patrick Leahy (D-VT) introduced his own version of the USA Freedom Act in the Senate. It is less radical than the original USA Freedom Act, but places more limits on the NSA than the legislation approved by the House.
Debate over the USA Freedom Act has focused on the best way to rein in bulk collection of Americans' phone records. The Senate version of the legislation requires any collection of phone records to focus on a suitably narrow "selector" — a search term that identifies an individual, phone line, or other specific entity.
The Senate bill would also take some other steps to make the NSA's activities more transparent and accountable. Right now, when the government asks the secretive Foreign Intelligence Surveillance Court to approve surveillance activities, there is no one around to present opposing arguments. The Senate bill would change that by creating several new positions for public advocates who could participate in FISC proceedings.
The bill would also require the government to disclose significant FISC opinions (though the government could decline to publish them if it decides doing so would damage national security) and to publish detailed statistics about the extent of domestic spying activities.
"The American people are wondering whether Congress can get anything done," said Sen. Patrick Leahy, the lead sponsor of the legislation, last week. "The answer is yes. Congress can and should take up and pass the bipartisan USA FREEDOM Act without delay."
Who lobbied in favor of the legislation?
Civil liberties groups such as the American Civil Liberties Union and the Electronic Frontier Foundation favor the legislation because it would place new limits on bulk surveillance of Americans and increase oversight of NSA activities.
The legislation also enjoys broad support from the technology sector. Their support is driven in part by concerns that aggressive NSA surveillance could make it hard to sell their products overseas. That's because customers outside the United States are wary of entrusting American internet companies with the data if the US government has easy access to it.
Who was opposed to the legislation?
Advocates at both extremes of the surveillance debate opposed the bill.
From the pro-surveillance side, former NSA director Michael Hayden and former attorney general Michael Mukasey recently blasted the bill as "NSA Reform That Only ISIS Could Love."
At the opposite end of the political spectrum, some hard-core civil libertarians are opposing the bill for being too soft on the NSA.
What happens next?
The issue is almost guaranteed to come up again in the new year. A key provision of the Patriot Act is scheduled to expire next summer, giving intelligence hawks who might otherwise oppose action a reason to negotiate.