The fight to rein in the National Security Agency (NSA) is about to face its biggest test yet.
A reform bill heading to the Senate floor this week is meeting with opposition from both sides of the aisle and critics who threaten to dismantle the fragile coalition of lawmakers, tech companies and privacy advocates who have signed on to back the USA Freedom Act.
Supporters were not certain that they had the 60 votes necessary to overcome a procedural hurdle on Tuesday.
More than a year after Edward Snowden first revealed the powers of the spy agency, Congress is either about to give it a makeover or head back to the drawing board.
“None of us are sure, even though the attempt to bring it up occurs, whether or not it actually succeeds,” one tech industry advocate fighting in favor of the bill told The Hill.
“I would not consider it a done deal at this point.”
Sen. Patrick LeahyPatrick Joseph LeahyOvernight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed Overnight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised On The Money — Democrats tee up Senate spending battles with GOP MORE’s (D-Vt.) USA Freedom Act would end the NSA’s ability to collect records about Americans’ phone calls, including information about whom they call, how often and how long the conversations last. The metadata records do not include details about the substance of people’s conversations.
The bill would also add a team of privacy advocates to the federal court overseeing the nation’s spying programs and give tech companies additional ways to tell the public about the information they have to hand over to the government. Companies have said that revelations about the NSA have cost their businesses billions of dollars.
It has the support of a bipartisan group of lawmakers, ranging from Sen. Ted CruzRafael (Ted) Edward CruzOvernight Health Care — Presented by Carequest — Colin Powell's death highlights risks for immunocompromised The Senate confirmation process is broken — Senate Democrats can fix it Australian politician on Cruz, vaccines: 'We don't need your lectures, thanks mate' MORE (R-Texas) to Sen. Richard Blumenthal (D-Conn.), as well as major tech companies, the Obama administration and groups including the American Civil Liberties Union and the National Rifle Association.
Yet Sens. Dianne FeinsteinDianne Emiel Feinstein Ban on new offshore drilling must stay in the Build Back Better Act Senate GOP signals they'll help bail out Biden's Fed chair Jane Fonda to push for end to offshore oil drilling in California MORE (D-Calif.) and Saxby ChamblissClarence (Saxby) Saxby ChamblissEffective and profitable climate solutions are within the nation's farms and forests Live coverage: Georgia Senate runoffs Trump, Biden face new head-to-head contest in Georgia MORE (R-Ga.) — the two leaders of the Senate Intelligence Committee — have both expressed reservations, worrying that it would go too far.
Chambliss this week called it a “terrible” bill and told The Hill that he would work to filibuster it on Tuesday.
Feinstein has been less adamant in her opposition, but told reporters this week that she “still [has] problems” with the bill and hoped they could be worked out on the floor.
She and Leahy have long been working to reach an agreement and “will continue working together to make sure the Senate passes strong legislation to end the bulk collection of Americans’ phone records,” a Leahy aide said.
Feinstein and Chambliss are not alone.
Sen. John CornynJohn CornynCornyn raises more than M for Senate GOP Is the Biden administration afraid of trade? The Hill's Morning Report - Presented by Facebook - After high drama, Senate lifts debt limit MORE (R-Texas), the chamber’s second-ranking Republican, said that he feels “a little uncomfortable trying to jam though something that’s significant and important to our national security in a lame-duck session where you have people looking for the exit door who either have retired or been defeated.”
“This is something we shouldn’t be doing in a big rush under these circumstances in my view,” he said.
At the same time, some of the chamber’s strongest advocates of civil liberties say the bill is too weak.
Sen. Rand PaulRandal (Rand) Howard PaulVaccine 'resisters' are a real problem Democrats fret as longshot candidates pull money, attention Journalist Dave Levinthal discusses 'uptick' in congressional stock trade violations MORE (R-Ky.) — a likely 2016 presidential candidate and frequent critic of government spying — “does not feel that the current NSA reforms go far enough,” an aide said.
The aide added that Paul would not vote for the bill unless it drops a provision extending the expiration of the Patriot Act from June to 2017, and said that he is also considering additional measures to strengthen the bill.
Feinstein is also likely to push for an amendment that blunts the influence of the privacy advocates on the secretive federal surveillance court and may try to attach portions of her cybersecurity bill, which has been lambasted by privacy advocates for giving too much information up to the government.
Multiple sources off of Capitol Hill expected Paul to introduce an amendment that would give more Americans the legal grounds to sue the NSA for its activities, a provision that could be troublesome for the administration.
Sen. Ron WydenRonald (Ron) Lee WydenDemocrats narrow scope of IRS proposal amid GOP attacks Democrats scramble for climate alternatives Overnight Energy & Environment — Presented by the American Petroleum Institute — Democrats address reports that clean energy program will be axed MORE (D-Ore.) is working on an amendment to add an additional measure ending “backdoor” searches of Americans through a legal authority meant to target foreigners, an aide said.
Sen. Mark UdallMark Emery UdallKennedy apologizes for calling Haaland a 'whack job' OVERNIGHT ENERGY: Haaland courts moderates during tense confirmation hearing | GOP's Westerman looks to take on Democrats on climate change | White House urges passage of House public lands package Udalls: Haaland criticism motivated 'by something other than her record' MORE (D-Colo.) has sided with Wyden on the backdoor searches and is going to “make every effort” to address the issue, his spokesperson said.
If the bill came up as-is, “it’s too early to say” whether or not Udall would vote for it, spokesman Mike Saccone told The Hill.
Any of those amendments could threaten the entire coalition.
Congress has to act at some point, however. The phone records program is among the Patriot Act provisions that expires in June and spy leaders say losing it entirely would be disastrous.
A fight over the issue next year would be a “whole different landscape” said Laura Murphy, head of the ACLU’s Washington office. Republican control of the Senate would set new terms for the debate and install new leaders of the Senate and Intelligence Committees who seem less inclined to deal.
A win, meanwhile, would put wind in reformers' sails, they say.
“Victory begets victory, and if we can pull that off, that sets the conditions for more and better reforms in the future,” said Kevin Bankston, policy director at the New America Foundation’s Open Technology Institute.
“While if we fail, it makes it much harder for us to move on to the next critical issues that we would address.”