The Politics of Surveillance and the Specter NSA Bill:
Senator Specter's NSA bill passed out of committee yesterday by a 10-8 vote. While the Specter bill remains controversial, and its future is uncertain, my understanding from press reports is that it has a somewhat decent chance of getting through Congress. This brings up a very interesting question: Why is it that Congress seems to be open to the Specter bill just a few months after it gave the Administration such a hard time with the Patriot Act renewal?

  Here's a little background. In 2005 and early 2006, Congress struggled over the renewal of a few parts the USA Patriot Act which were set to "sunset" by the end of 2005. On a scale of 1 to 10, in which 1 is the least important and least far-reaching and 10 is the most important and most far-reaching, the controversial parts of the Patriot Act renewal were about a 2. Nonetheless, the Bush Administration struggled for months to push through the legislation. Congress held hearings on almost every teeny tiny piece of text, and had to pass interim legislation because the bill couldn't get through. In the end, the legislation that resulted was more restrictive than the authorities permitted by the Patriot Act. Throughout the process, every comma and letter was pored over with extensive focus over the balance between Executive power and civil liberties.

  Compare that to the developing politics surrounding the Specter NSA bill, which was voted out of the Senate Judiciary Committee. On the same scale of 1 to 10, in which 1 is the least important and 10 is the most important, the Specter bill is somewhere around an 8. The Specter bill would reorient the basic role of the legislative branch in national security surveillance. In terms of importance, its provisions dwarf the provisions in the Patriot Act renewal by orders of magnitude. And yet Congress isn't holding lots of hearings on it, or debating it very much. Although the bill certainly has its critics — note that the Judiciary Committee vote was 10-8 — Congress at least seems open to enacting the bill's very significant changes.

  So back to my question: What explains Congress's apparent openness to the Specter NSA bill given the very rough ride that the Patriot Act renewal bills encountered just a few months ago?

  I'm not sure of the answer. But here are a few possibilities:

  1. The comparison is premature. The Senate Judiciary Committee isn't representative of Congress as a whole. The bill is out of Committee in the Senate, but it will encounter major roadblocks elsewhere that will kill the current version of the legislation.

  2. Most members of Congress and their staffers don't particularly understand this complex area of law. The intricacies of surveillance law can be just a big blurry mess to them, and they don't fully realize the scope of the NSA bill.

  3. Key figures in the Bush Administration really care about this one, whereas they didn't care about the Patriot Act renewal. Informed insiders in the Bush Administration surely knew that the controversy over the Patriot Act didn't matter much, and so they were happy to keep it a low priority. In contrast, this one is a biggie, and so they're pushing really hard for it.

  4. The public can pay only so much attention to surveillance law, and after years of discussion of the Patriot Act they're just not that interested anymore. The relative lack of focus makes it a lot easier to act on otherwise-controversial legislation.

  5. The basic facts of the NSA program are highly classified, so classified that even Senator Specter himself doesn't know how the program operates. It's relatively hard to drum up opposition to the regulation of a black box. In contrast, the Patriot Act debates were spearheaded by a few attention-grabbing scenarios, such as access to library records, which could be used by opponents to focus public attention.

  6. Press miscoverage of surveillance law has so warped the public understanding that one or both of the public reactions do not reflect actual public preferences. The press repeatedly overhyped the Patriot Act, so perhaps that led to excessive controversy over its provisions; perhaps the public reaction to the Specter bill accurately reflects majority preferences. On the other hand, the press initially reported the Specter bill as a compromise, so perhaps that led to an unnaturally low amount of public opposition to it.

  Any other thoughts? Maybe I'm just missing something, but I do find the comparison pretty interesting.