Like Franken, however, Whitehouse ultimately voted to allow warrantless wiretapping. And neither of the would-be champions has convinced the civil liberties community that he's as willing to engage in a throwdown as Feingold was.
"I think Whitehouse has a lot of potential," says Nat Hentoff, the civil libertarian critic who's now a policy scholar at Cato. "I think Al Franken is Al Franken. He's good at promoting himself. Feingold has been the only Democrat who's told the truth of what's been happening, that Obama has been asking the Congress not to reform the warrantless wiretapping that Bush put in place."
Others who may slide into Feingold's shoes include those senators who co-sponsored legislation that sought to remedy the worst civil liberties provisions of the Patriot Act. The Justice Act, for instance, was introduced by Feingold in September 2009. The bill was co-sponsored by Democrats Dick Durbin of Illinois, Jon Tester of Montana, Tom Udall and Jeff Bingaman of New Mexico, Daniel Akaka of Hawaii, and Ron Wyden of Oregon, plus Independent Bernie Sanders of Vermont. For his colleagues, one of Feingold's virtues was his willingness to lead on these issues, making it easier for them to follow. Now one of them may have to take the lead.
Of course, there is more than one party in the Senate. Caroline Fredrickson, executive director of the American Constitution Society, speculates that civil liberties fights in a Feingold-less Senate might depend more on Republicans like Rand Paul. That's a promising possibility right now as the sort of people who backed Paul discover a new bottomless pit of anger, this time about TSA pat-downs. But can it be the basis for Feingold-style politics in the Senate? Feingold's civil liberties record was barely an issue in his failed re-election campaign. When it came up, Feingold's opponent, Ron Johnson, an Ayn Rand devotee, said he liked the idea of reviewing the Patriot Act but his main concern about liberty was how President Obama was undermining it.
"So much of the Patriot Act exists in law, and they just put it within that law. I certainly share the concerns [about] civil liberties," Johnson said in June. "Now, if you have Barack Obama in charge versus George Bush—I wasn't overly concerned with George Bush in power. I'm a little more concerned about the Patriot Act when you have Barack Obama." What made Feingold unique, and perhaps uniquely credible, was his suspicion of government intrusions on privacy regardless of who was president.
One final note as we enter the Post-Feingold Era of Civil Liberties: In 2006 Majority Leader Harry Reid put Feingold on the Senate Intelligence Committee. It was a way to hold the intelligence community's feet to the fire on issues of civil liberties and abuses of transparency and accountability. It will be interesting to see which senator is appointed to take Feingold's place. It will either provide some sense of who in the Senate might now take up Feingold's cause—or it will confirm the fact that nobody plans to try.
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Too bad it’s almost certainly unconstitutional.