USA Freedom Act Fails

Adam L. Silverman

The USA Freedom Act, the slightly less invasive alternative to the USA PATRIOT Act, quietly failed in a late night vote yesterday in the Senate. The vote was 57 for and 42 against. Wait, what????

WARNING, WARNING - the following explanation on Senate procedure is largely for the non-American readers of SST who are not familiar with the strange arcana of the World's Greatest Deliberative Country Club er, um Body. Or for those readers who get all their news on American politics from Cable news. Here's what really happened late last night. The USA Freedom Act was not actually up for a vote to see if it passed as a piece of legislation - that only requires 51 senators to vote in favor of the pending legislation. Rather the vote late last night was a vote for cloture, which is a vote to cut of debate and proceed to the actual vote on the legislation. As a result of the manipulation of the Senate's internal rules beginning in the late 1990s for partisan gain* all legislation is now subject to a formal vote**, unless otherwise waived (through pre agreement between the Majority and Minority leaders) or through unanimous verbal consent to end debate. This formal vote to end debate, known as cloture, requires 60 votes in favor to proceed to the question. The question is the actual vote on the legislation. So while everything the Senate votes on only requires a simple majority of 51 votes to pass, with the exception of treaties, veto overrides, and to convict the accused in a Federal impeachment, cloture votes require a 2/3 majority (these last three are all Constitutional requirements). So while the news reporting will indicate, as Wired's reporting does that "Senate lawmakers voted 57-42 against the USA Freedom Act", that is not actual true or accurate. What really happened is only 57 senators voted in favor of ending debate and moving to the question, which is actually voting on the bill. Based on the cloture vote numbers there would have been enough Senatorial support for achieving the simple majority to pass the USA Freedom Act if the Senate actually got to the actual vote on the legislation, which it didn't. What it did late last night was vote on whether or not to vote on the actual bill. So when you read that the Senate voted against something 55-45 or 53 to 47 or what have you, 99% of the time you're actually reading reporting about a cloture vote, not a vote on the actual legislation. Sometimes you'll see this reported as the failure to break a filibuster, which is also wrong. These aren't filibusters and, in fact, no on has mounted an actual, real, honest to goodness filibuster in a long time in the US Senate. The result of all this is that even when a piece of legislation has majority support in the Senate it often fails to come up for an actual vote because the internal Senate rules have been manipulated to make everything a 2/3 majority vote before proceeding to an actual vote. To quote Mr. Pierce at Esquire: "This is your democracy America, cherish it".

* The original manipulation in the 1990s was to use the 2/3 cloture votes to prevent President Clinton's Federal Judicial Appointments to come up for a floor vote on their nominations, especially for the Federal Courts of Appeal. This began shortly after his impeachment fell apart in the Senate. The GOP caucus in the Senate effectively held up significant number of nominations, which left large vacancies for the next President, who they hoped would be a Republican, to fill. Their tactics paid off when President Bush took office in JAN 2001 and began to quickly nominate individuals to fill those vacant positions. When the Senatorial Democrats then tried to use the same tactic, they were immediately castigated by the GOP and branded in the media as obstructionists that wouldn't move on from how the 2000 election turned out.

** This doesn't include other things that impede passage of legislation or the consideration of nominees. These include single member holds - both open (as in we know which Senator has placed the hold on pending legislation or nomination) or closed (the Senator has asked the leadership for anonymity) and the blue slip process for nominees - where the committee chair will not accept a nominee for committee consideration if both of the Senators from that nominees home state do not concur with the nomination.

Comments

[Cee]

Adam,

If we had more people with spine like Russ Feingold (read it and voted against it) we wouldn't be in the situation.

He's running again. We should all kick him some change.

http://www.russfeingold.com/

[The Twisted Genius]

This made for some exciting viewing on C-Span last night... at least as exciting C-Span viewing can be. I wrote these comments last night.

"The Senate just voted to block both the USA Freedom Act and a two month extension of Section 215 of the Patriot Act. McConnell tried to call a vote to extend it to 8 Jun. Paul objected McConnell countered with 6 Jun. Paul objected again and asked for a simple majority vote on 2 amendments. McConnell came back with a 3 Jun extension. Martin Heinrich from New Mexico objected to that. There's a lot of haggling about on the Senate floor right now. I'm surprised I'm this enraptured by something on C-Span. I think I'll watch a while longer."

"The Senate has adjourned for the week. McConnell was left crying like a rat eating onions calling for reconvening on Sunday, 31May, for a last ditch effort to save Section 215. Harry Reid said his colleagues from the West can't get there before 5 in the afternoon."

"After all this, Mikulski from Maryland stood and gave an impassioned defense of the much put upon NSA and warned that our enemies overseas are now laughing at us for dropping our defenses. I guess she doesn't realize the NSA will continue to use its skills and talents against our enemies overseas. Section 215 has noting to do with overseas collection."

Stay tuned next week for another exciting episode of "Let's kick big brother right in his little brother.""

[Babak Makkinejad]

US Congress is not a normal legislative body, it seems to me. Does the analogy with Lloyds of London hold water?

That is, Congressional committees and sub-committees shopping their favorite piece of legislation around?

Is US Congress operates like a regulated Legislation Market?

[turcopolier]

Babak

What would a normal legislature be and how would it function? Would it be a rubber stamp for the rulers of the country? pl

[The Twisted Genius]

Babak,

We haven't had a beating or shooting in well-nigh 150 years and the fact that our legislators wheel, deal, cajole and make deals to push their favorite pieces of legislation is admirable. Its their reliance on money from special interests for reelection that gums up the works. I don't have a workable solution to that one.

[Babak Makkinejad]

I think David Habakkuk or Patrick Bahzad could shed more light in significant ways that US Congress differs from UK or French legislative bodies.

My own understanding has been that what obtains in US Congress in the form of Committees and sub-committees does not have any equivalent anywhere else in the word.

[turcopolier]

babak

Neither the UK nor France are federal in nature. Since Napoleon France has been a unitary state and Britain has been the same since the Treaty of Union. This is a very different thing. US States share sovereignty with the federal government. pl

[johnf]

Is this going to alter anything? I thought GCHQ in Britain did all the domestic surveillance in the US and the NSA does British domestic surveillance so that both governments can deny they spy on their own subjects.

And the Israelis are allowed in to spy on both our electorates.

Bring light to my ignorance.

[robt willmann]

johnf,

I think you are largely correct. I remembered a program on the CBS 60 Minutes television program from some years ago in which a person from Canada talked about one country doing domestic spying in another country for that other country, so that it would be "deniable" by the other country. I was surprised to find a video of it, and it was from around February 2000, around a year and a half before the events of September 2001. It talked about Echelon, involving intercepting up electronic signals out of the air. The person interviewed was said to have worked for the Communications Security Establishment (CSE), the NSA of Canada. At 7 minutes, 30 seconds he talks about Canada spying on British politicians for Margaret Thatcher; at 8 min. 32 sec. a lady tells about the interception of Senator Strom Thurmond; and at 10 min. 43 sec., the subject of the NSA doing industrial espionage for U.S. companies is discussed--

https://www.youtube.com/watch?v=sfdm78zcv8o

The TV program talked about grabbing electronic signals out of the air. Beginning in 2001, William Binney, when he resigned from the NSA, not only spoke about enormous financial fraud and waste at the NSA, but about the interception of domestic telephone calls, etc. An AT&T employee revealed the placement of duplicating splitters in U.S. phone company switches, and other information showed that intercepting equipment was placed in or by fiber optic cable routes, and so forth.

I think it was when Lying Keith Alexander was still the director of the NSA, that an agreement was made with Israel in which the bulk phone records of U.S. persons (the so-called metadata) was turned over to Israel, and the Israeli government got those fools to agree in writing that Israel was not bound by any searching and sorting limitations, but could look through the data however it wanted to.

[The Twisted Genius]

johnf,

We have a choice. We can be a herd of passive sheep and accept the inevitability of ever increasing government (and commercial) surveillance or we can rage against the machine... even if it's only speaking out against it. The glare of sunlight is anathema to the surveillance state. It's a battle worth waging.

[crf]

Yet another thread on cloture.

The rules requiring 60 votes to end debate and put a bill to an actual vote were put into place to speed up Senate business and avoid the "physical" filibuster. Instead it has made the Senate irrelevant (and also the House of Representatives, since all legislation originating in the house must also pass in the Senate). The US elected government has so many clowns and extremists because moderates have no hope of ever actually governing: of passing legislation.

It takes only a bare majority vote to change the Senate rules on Cloture. This course of action has unfortunately been termed the "nuclear option".

The Republicans like having a Senate that passes nothing: it reinforces their argument that government doesn't work. And the Democrats have always been too gutless to go with "the nuclear option".

The nuclear option will improve bipartisanship and consensus building. If one party passes legislation that the other party wholly disapproves of, then the first party risks seeing all their legislative work undone once the government changes.

The Presidential veto also can't be overridden by a bare majority. This should also help the cause of moderation if cloture rules were changed.

[robt willmann]

TTG,

I agree with your comment to johnf above. Most certainly, "The glare of sunlight is anathema to the surveillance state". And also effective is one of the most powerful forces on earth: peer pressure, which exists on adults and not just on teenagers. When the Ed Snowden material got national publicity -- although Bill Binney's did not, which was not an accident -- and the disclosures began to be talked about (also by lawyers) all of a sudden, the Foreign Intelligence Surveillance Not-a-Court began releasing some information, and even some of its prior secret opinions, although with some unnecessary redactions. There was no order from the U.S. Supreme Court telling them to release the material. They did it because of peer pressure.

I believe that much, if not most, of the bad effect of the laws and policies of the federal government from and after 2001 can be reversed and eliminated on the local and state levels. Moreover, I think that for the most part it would not even require new state laws or new local ordinances to do so. From what I can tell at this time, a lot of the insidious effort to neutralize state and local law enforcement -- and get them to change to improper and abusive practices and procedures -- was done by sophisticated psychological manipulation, "grants" of federal tax money, and written agreements. Those things can be quickly undone by city councils, mayors, county governments, local sheriffs, state agencies, and state police officials. Even local police chiefs, who are beholden to mayors, city managers, and city councils, can completely change the damage that has been done, if you can find a police chief who has not been indoctrinated and brainwashed to ignore law enforcement methodology from days gone by. Local government office holders and law enforcement officials are not hundreds of miles away. They are right there at the people's fingertips -- in the grocery store, at church, at the football and basketball games, at the County Fair, etc.

[kao_hsien_chih]

In the UK, the cabinet and the PM constitutes the leadership of the majority party (or, just once in history, the majority coalition) in the Parliament, which in turn is dominated by parties that are very much hierarchical. In France, the PM holds a similar role, even if the presence of the not-quite-figurehead president can impose some restrictions on the PM.

In US, we have neither. The parties are not hierarchically organized. The legislators are not underlings of their parties (who are collectively chosen by the voters to represent them). Instead, US legislators are individually and directly representatives of their voters, with their associations with the parties rather ancilliary. The executive and legislative branches are totally separate entities, each fully representative of sovereign people(s), notwithstanding the foul dreams of Bush and Obama of being the "unitary executive." Whether this is "good" or "bad," I suppose depends on one's perspective, but I don't see if the European parliaments, with their built-in subservience to the executive, is somehow more "natural" than ours.

[FB Ali]

Isn't that where the campaign to scare the pants off the US population comes in?

The constant drumbeat of scaremongering keeps the ordinary people in such fear that there is no constituency or public pressure to make the changes you talk about. Or otherwise rein in the authorities from acquiring more illegal powers.

[robt willmann]

FB Ali,

Yes. The initial propaganda and "perception management" in 2001 and for a while thereafter was so intense, widespread, and repetitive that it convinced and "psyched out" a lot of people, politicians, and judges. The subsequent scaremongering has continued in varying amounts now for 13 years and has maintained the manufactured fear such that producing change in the face of it is not easy. Only recently one federal appeals court -- the 2nd Circuit -- ruled that the collection by the government of the telephone calling records of everyone in the U.S. is outside the scope of section 215 of the Anti-Patriot Act.

Local and state law enforcement were subject to additional manipulation and indoctrination through "consultants", of whom local residents and even local politicians were not aware, and through seminars and other conferences out-of-town, and even out of the country.

The good news is that especially on the local level, significant and complete changes can be made by only one or a few persons, such as a mayor, city council, sheriff, or other local "opinion leaders", and it is not necessary to get a new law successfully voted out of a legislative committee, and then to get a majority of 60 votes in the U.S. Senate, plus a majority in the House of Representatives, plus the president's signature (or a veto-proof majority) to make a real change.

[Imagine]

AFAIK the GCHQ and the Israeli effort (excluding the NSA unedited feed to Israel) are substantially less pandemic than the NSA effort itself. So blocking NSA's spying on Americans should be a real qualitative win.

[William R. Cumming]

YUP!

[William R. Cumming]

This an extremely interesting comment IMO! Thanks! In particular since I consider myself expert on Federalism.

[William R. Cumming]

In the context of Homeland Security a retired USAF Colonel [JAG] and law professor (Samuel???) has the best article on Federalism.

Wiki extract:

ederalism is a political concept in which a group of members are bound together by covenant (Latin: foedus, covenant) with a governing representative head. The term "federalism" is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (such as states or provinces). Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation. The term federalist describes several political beliefs around the world. Also, it may refer to the concept of parties; its members or supporters called themselves Federalists.