How Can the Left Stop the Patriot Act? Be More Like the Tea Party

An op-ed from Demand Progress director David Segal on how liberals and progressives can win the surveillance debate.

News you should love if you're not a totalitarian: Section 215 of the Patriot Act—the language that the NSA exploits to collect Americans' phone records—is set expire as the clock rolls over into June 1st. Authoritarians in Congress are trying to extend it, and beating them will require a unified coalition of progressives and libertarians. While it might be tough medicine for many on the left, the best way to make sure Section 215 dies is to behave just like the Tea Party would—and just as some libertarian-leaning Republican lawmakers who oppose mass surveillance already are.

As much as many revile right-libertarian activists for the iron grip they have on a hulking chunk of the Republican Party, which they so frequently wield to get their way in Congress, many on the left envy and want to emulate them for... precisely those same reasons. They've built real power.

Why isn't the left more like the Tea Party? The answer is complex, but the Section 215 expiration is an exception that proves the rule. And the left should do a much better job than it has of exploiting what's exceptional about this circumstance.

Some of it's surely culture and psychology, a "reasonability" fetish and aversion to risk that seem more prevalent on the left than the right.

But some of it's structural. In the electoral arena, libertarian economic ideals generally comport with the will of capital; progressives are more likely to offend the donor class. So right-ideologues can raise more money and win more primaries than left-ideologues.

In the surveillance fight that'll play out over the next few days, civil libertarians should use Tea Party methods

And in the halls of power it manifests this way: If your goal is for the government to not spend or regulate then your strategy is obvious: Obstruct government action. Sometimes you'll win outright, and much of the rest of the time you'll make the eventual outcome less aggressive.

But this elegant alignment rarely operates for the left, whose goal is usually more aggressive government intervention. If you want single payer (or at least that piddling damn public option) instead of Obamacare, for instance—then holding out for more presents a real risk. Maybe the outcome will be more like your ideal—but maybe you'll get nothing at all, losing the half a loaf that you're otherwise assured of securing.

Progressives rarely push hard enough, but these really can be tough tactical decisions.

Yet in the surveillance fight that'll play out over the next few days, civil libertarians have been afforded a structural alignment that should let us steal straight from the Tea Party's playbook. If only the left flank had a coach who'd put on his glasses and read it.

First, for the civil libertarian ideologues, the desired outcome is minimally interventionist: surveillance powers targeted just at actual bad guys. Doing nothing—letting Section 215 sunset—promotes that ideal.

Second, we have the sort of blocking power that the Tea Party has become so adept at leveraging. Section 215 expires on June 1st. The establishment and intelligence agencies rarely see their power unwind, and don't want to here. Yet it's very hard to get something through Congress because there are so many choke points, and there are several that reformers could exploit (or could have exploited) to block Section 215's advance and compel greater concessions.

The House Judiciary Committee—the body that has primary jurisdiction over domestic surveillance—is overwhelmingly progressive and libertarian-leaning. Yet its most senior Democrats—all of its Democrats, in fact—voted this month to support the USA FREEDOM Act, an ostensible reform measure so anodyne that it is backed by the intelligence establishment. It would theoretically constrain Patriot Act mass surveillance by a tad—even while codifying it for the first time and extending it well into the future. It's sponsored by longstanding committee members and civil libertarians like John Conyers (D-MI) and Jerry Nadler (D-NY), but the ACLU and many other civil liberties groups are declining to support it, or (like Demand Progress) actively oppose it.

The rank-and-file House membership has demonstrated overwhelming support for meaningful surveillance reform, such as for the Massie-Lofgren Amendment to constrain warrantless wiretapping of Americans, which passed by a veto-proof margin last summer, only to be undermined by the Senate.

Yet the overwhelming majority of civil libertarian-leaning lawmakers voted for USA FREEDOM, as part of a 338-88 vote in favor. All national security hawks supported it too. This leaves it open for potential additional weakening, which Senate Majority Leader Mitch McConnell has made clear is his aim.

The state of play in the Senate is a muddled mess, but the House tally has made it clear to McConnell if he can get a weaker bill through the Senate, it stands a great chance of passing the House: If USA FREEDOM had passed, say 230-200, with opposition coming from civil libertarians, it'd have presented a backstop. If it had been defeated, even better: civil libertarians could have demand more reform, under the pain of Section 215 expiring. Instead, the huge majority in the House has made it clear that a further-weakened bill is still likely to pass, even if more civil libertarians peel off.

But this is not set in stone: We need all civil libertarians to make explicit their unwillingness to abide any further weakening of mass surveillance reforms. We need lawmakers who've historically been stalwart defenders of constitutional rights—including bill sponsors like Conyers and Nadler—to assert their opposition to whatever the Senate sends back to the House—even if it's still nominally a bill they'd once signed on to—rather than fumble away what will likely be this generation's best opportunity to institute meaningful constraints on domestic surveillance.

David Segal is the executive director of Demand Progress and a fellow at the Yale Law School's Information Society Project.