For potential White House contenders, NSA vote has 2016 implications

The split votes of three likely 2016 GOP candidates on a failed National Security Agency reform bill underscore a rift in the Republican Party that could spill over into the presidential primaries.

Sen. Ted CruzRafael (Ted) Edward CruzOvernight Defense: US launches another airstrike in Somalia | Amendment to expand Pentagon recusal period added to NDAA | No. 2 State Dept. official to lead nuclear talks with Russia No. 2 State Dept. official to lead nuclear talks with Russia next week Here's evidence the Senate confirmation process is broken MORE (Texas) was one of only four Republicans to vote Tuesday night in support of legislation to end the government's bulk collection of Americans' phone records. Sens. Rand PaulRandal (Rand) Howard PaulGOP Rep. Cawthorn says he wants to 'prosecute' Fauci Writer: Fauci, Paul clash shouldn't distract from probe into COVID-19 origins S.E. Cupp: 'The politicization of science and health safety has inarguably cost lives' MORE (Ky.) and Marco RubioMarco Antonio RubioBipartisan congressional commission urges IOC to postpone, relocate Beijing Games Hillicon Valley: Democrats introduce bill to hold platforms accountable for misinformation during health crises | Website outages hit Olympics, Amazon and major banks Senators introduce bipartisan bill to secure critical groups against hackers MORE (Fla.) both helped stall the bill — but for vastly different reasons.

The 2016 campaign could give the potential candidates another platform to highlight their differing stances in the simmering debate over government surveillance.

"I think a lot of it depends on whether the candidates believe they can exploit this issue," said Steve Vladeck, a professor at American University's law school.

"So I think the question is whether someone like Sen. Paul looks at the field and sees surveillance, and national security more generally, as a way to actually distance himself from the more moderate elements of the Republican Party," added Vladeck, who heads the Just Security blog.

Civil liberties advocates are hopeful the 2016 election will place a sharper focus on surveillance. It will be the first presidential race since the extent of NSA spying was revealed by the leaks from Edward Snowden.

"Because of that world, I don't think this is an issue that candidates in either party are going to be able to avoid. They are going to face very real questions," said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union.

Senate Judiciary Chairman Patrick LeahyPatrick Joseph LeahyNational Guard cancels trainings after Congress fails to reimburse for Capitol riot deployment Democrats criticize FBI's handling of tip line in Kavanaugh investigation Lawmakers spend more on personal security in wake of insurrection MORE's (D-Vt.) USA Freedom Act died on a procedural vote to start debate earlier this week, with nearly every Republican opposing it.

The legislation would have ended the government's bulk collection and storage of Americans' phone and other business records, and would have established a privacy advocate to argue in the Foreign Intelligence Surveillance Court, among other things.

Cruz, an initial cosponsor of the updated bill, was the only likely presidential candidate in the Senate to support it. During a short floor speech, he said it is not perfect but is necessary to protect Americans' civil liberties.

On opposite ends of the spectrum, Paul opposed the bill by saying he wanted it to go further to scrap portions of the Patriot Act used to justify the NSA's surveillance program, while Rubio maintained the program is a critical tool in fighting terrorism.

The tension between Paul and the more hawkish wing of the GOP has sprung up at different times in the past year, and could be used against the Kentucky senator.

For example, New Jersey Gov. Chris Christie (R), another potential 2016 contender, blasted the new "strain of libertarianism" in the party last year as "dangerous," pointing to Paul and others.  

Rubio has adopted a similar stance, positioning himself with Republicans like Sen. John McCainJohn Sidney McCainMeghan McCain on Pelosi, McCarthy fight: 'I think they're all bad' Democrats seek to counter GOP attacks on gas prices Biden nominates Jeff Flake as ambassador to Turkey MORE (R-Ariz.) or former NSA director Michael Hayden, who have invoked the threat of the Islamic State in Iraq and Syria during the NSA debate.

"If god forbid any horrifying event like that were to happen, the first question we will be asked is why didn't we know about it and why didn't we prevent it," Rubio said on the floor ahead of the vote this week.

On the other hand, Paul's stance Tuesday alienated him from both sides of the debate. Even many civil liberties advocates said Paul, who has sued over the NSA program, should have voted to advance the bill.

"I think in this case, he made the wrong choice," the ACLU's Guliani said. "But I think me and other people will be looking to say now that he's said, ‘look we want a stronger bill,’ what is his path forward and can he deliver?"

The GOP-led Congress will have to debate reform again next summer when portions of the Patriot Act are set to expire. Observers note a number of developments can happen before the primary gets underway. They point out no one had heard of Edward Snowden before last June.  

It is still unclear what role NSA reform will play in the GOP primary and the presidential race more broadly. The issue was not a major part of any Senate campaign in 2014.

"There is clearly a constituency for it, but at least thus far, that consistency has not been powerful enough to set the terms of the Republican agenda," Vladeck said.

A Pew Research poll in September found Republican priorities on civil liberties and national security had flipped since the Snowden leaks last year. The poll was conducted as the rise of ISIS dominated headlines.

It found only 24 percent of Republicans said the government's anti-terrorism policies had gone too far in restricting civil liberties — that was a drop of 19 points since the year before. While not naming any specific program, the same poll found 64 percent of Republicans said U.S. policies have not gone far enough to protect the country.

Rubio's position would then appear to be in line with the average GOP voter and other possible Republican presidential candidates — aside from Paul and Cruz. But Vladeck said open primaries and other election dynamics muddy that advantage.

"The complicating factor is: There are plenty of cases where the median GOP primary voter won't necessary be the controlling factor in a primary election," he said.