Legislation to rein in the National Security Agency’s surveillance programs has stalled in the House and Senate.
More than 130 House lawmakers in both parties have signed on as co-sponsors to legislation that would prevent the NSA from collecting bulk records about people’s phone calls. In the Senate, companion legislation has won 20 co-sponsors.
In the House, Judiciary Chairman Bob Goodlatte (R-Va.) seems to be waiting for the Obama administration to take a formal position on the USA Freedom Act, authored by Rep. James Sensenbrenner (R-Wis.), before scheduling a markup.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) wants to see what recommendations Attorney General Eric Holder and top intelligence leaders make by a March 28 deadline set by President Obama.
Despite the sluggishness, advocates for sweeping changes to the NSA say they aren’t discouraged. They say it’s only a matter of time before something passes through Congress.
“I think that the need for change is very clear,” said Greg Nojeim, a senior counsel with the Center for Democracy and Technology.
“It’s a question more of when, not whether.”
Still, advocates of reform say that they want legislation sooner rather than later.
“There’s billions of records being collected in the meantime,” Nojeim said. “So certainly we’d prefer prompt action rather than delayed action.”
One factor working in the reformers’ favor is a deadline already set in law.
Next summer, the portion of the Patriot Act authorizing the NSA’s phone records collection program, known as Section 215, is set to expire. Congress will have to either reauthorize the program as-is, vote to amend it, or let it end entirely.
Lawmakers and advocates say there might not be enough votes to reauthorize it without reforms.
In a hearing last month, Sensenbrenner told Deputy Attorney General James Cole that the administration will need to help “fix” the phone records collection program or it “will end up getting nothing because I am absolutely confident that there are not the votes in this Congress to reauthorize 215.”
Pressure is expected to grow.
The Privacy and Civil Liberties Oversight Board, an independent agency that last month declared the NSA’s phone records collection illegal, is set to release a new report about the agency in the coming months.
That, plus growing public distrust about the surveillance programs, could turn up the heat on Congress.
And there’s always the possibility of more revelations from Edward Snowden, who first leaked information on the programs.
“We really need action to start soon, and we’re looking for the right combination to push them over that final speed bump,” said Michelle Richardson, a legislative counsel with the ACLU.
One reason for the current delay in the Senate may be that Leahy doesn’t have the votes to get his bill through committee.
Sens. Richard Blumenthal (D-Conn.) and Mike Lee (R-Utah) have co-sponsored the legislation, but the Judiciary Committee is also full of critics like Sens. Lindsey Graham (R-S.C.) and Dianne Feinstein (D-Calif.), the Intelligence Committee chairwoman.
Feinstein has her own bill that would make minor reforms to the NSA but endorses the agency’s bulk collection of phone records, which is regarded as its most controversial program.
“Right now I think you’re one or two short at least, in the current form,” said one lobbyist involved in the issue who was not authorized to speak publicly.
“That’s why I think you’re going to see what the administration does and see what’s been taken care of that you don’t need to do. And maybe you kind of take it from there and figure out what’s doable and how do we meet the Intelligence Committee’s concerns.”
The USA Freedom Act is not the only chance for legislative reforms.
Aside from Feinstein’s bill, which privacy groups have loudly criticized, other legislation in Congress would change the structure of the Foreign Intelligence Surveillance Court, allow companies to disclose more information about the government requests for information they receive and repeal the Patriot Act entirely, among other measures.
Lawmakers could also try to attach surveillance reform riders to other bills.
Last year, Rep. Justin Amash (R-Mich.) nearly succeeded in placing an amendment to defund the NSA’s phone records program on the 2014 defense spending bill. The effort was defeated by just 12 votes on the House floor.
An Amash spokesman did not rule out trying to attach a similar amendment to the National Defense Authorization Act, upcoming appropriations bills or other “must-pass” pieces of legislation.
“That's one vehicle through which to move surveillance reform,” Will Adams told The Hill in an email. “Of course, we prefer that the House move comprehensive legislation such as the USA Freedom Act before then.”
Richardson, from the ACLU, said that looming threat ought to prompt congressional leadership to allow some legislation to pass sooner rather than later.
“If they don’t pass something, there are members in the House and Senate who will file NSA-related amendments to every intel or defense bill or judiciary bill till the end of time, like the authorization bills and things like that,” she said.
“The issue is not going to go away… The advocates for change are only going to wait so long before they go this other route.”