We were not supposed to be talking about the USA Patriot Act today. The 10-month extension of some of the act's provisions was supposed to be uncontroversial. Hours before Tuesday's vote, at his weekly briefing, Majority Leader Eric Cantor was asked, "What changes will you try to make to the Patriot Act this year given that the extension will probably pass?" Not long after that, Politico ran a pro-forma preview story: "House to Pass PATRIOT Act Extension."
And then the House didn't pass the Patriot Act extension. It got close—seven more votes and there would have been the two-thirds majority necessary to suspend the rules and pass the extension, a common move used to protect popular bills from being ground down with amendments. One year earlier, in a Democratic House, a similar batch of extensions had sailed through on a 315-97 vote.
Very quickly, a theory emerged to explain all this: It was, according to NBC News, "Tea Party defiance." The theory is a little flawed. The House of Representatives contains 87 Republican freshmen, many of them proud wavers of the Gadsden flag. Only eight freshmen voted against the rule. (A ninth newly elected Republican, Rep. Mike Fitzpatrick, voted no, but he's just returned to Congress after a four-year hiatus.) There were more Democrats—36—who switched their votes from last year to this year.
So before the saga ends, with a majority vote tomorrow and a final vote on the bill Monday, let's review what we know.
First: There might not be many hard-line libertarians in the new majority, but there are more of them than there have been at any time since 9/11. One "no" vote came from Rep. Bobby Schilling, R-Ill. The Democrat he beat in 2010 had infamously told a camera-wielding Tea Party activist that he didn't "worry about the Constitution" when it came to delivering health care. (The video of this quote is nudging toward 500,000 views.) Schilling wanted to let people know that this was not the way he thought about the Constitution.
"No one should be surprised by my vote," said Schilling. "During my campaign I stated that we need increased national security but not without a thorough and complete look at the Patriot Act and its scope. I kept my promise to the people of the 17th District and voted 'no' against a bill that was rushed to the floor with limited debate. I will continue to support a strong national defense that does not infringe upon the rights of Americans."
Another "no" came from Rep. Justin Amash, R-Mich. He's received less national attention than other Tea Party candidates. That's partly because he was a member of the state legislature before he became a member of Congress, slightly diminishing his government-outsider status. But he was one of the candidates endorsed by Ron Paul's Campaign for Liberty. He promised to do things like this if he made it to Congress.
"The business records provision allows the government to order the production of 'any tangible things'—e-mails, phone logs, and even library records," said Amash, who will probably vote against final passage. "Worse still, the company turning over the records to the government is forbidden from telling the records' owner of the order. Likewise, the act's roving wiretap provision goes far beyond a similar provision in criminal law. It may allow the government continuously to monitor pay phones or public computers, even when a suspect is not using the devices. The breadth of the provisions raises serious Fourth Amendment concerns in my mind, and I cannot support them as currently written."
There is a libertarian caucus on civil liberties issues inside the GOP. It is not large enough to stop bills on simple majority votes. But it's real. Since the middle of the aughts, there have been about a dozen Republican members of the House, and a couple of senators, willing to vote down Patriot Act extensions and other bills they view as civil liberties threats; in the Senate, they've just gained Rand Paul.
There's another part of the Republican equation, though. There were 78 freshmen who voted "aye." They chose to extend, for 10 months, provisions of the Patriot Act that allow roving wiretaps, allow FISA courts to obtain any "tangible thing" needed in an investigation, and allow monitoring of noncitizens in the United States—the "lone wolf" provision.
So it's pointless to muse about a possible left-libertarian alliance on civil liberties without a hard look at that 78-9 split. In a long, thoughtful musing about the vote, Salon's Glenn Greenwald conceded that the "nature of [the conservative] movement means that last night's vote is far more of an isolated aberration than anything likely to change the bipartisan dynamic in a positive way."
Put another way: When most of the Tea Party class of 2010 got a chance to weaken the Patriot Act, it passed, and it cited the reasons that Bush-era Republicans always gave for these kinds of laws. "These provisions maintain the flexibility that our intelligence community needs to monitor terror suspects and protect our country against international terrorism," said Rep. Michele Bachmann in a statement, released before the vote and before attending a "Tea Party Town Hall" afterward. "As a mother of five and a foster mother to 23 children, I voted for these authorities so that our laws keep pace with the evolving threats posed by terrorists."
There's more proof, if you need it, that reports of the Tea Party's "rebellion" are exaggerated. On Wednesday, House Republicans fumbled another vote, needing and not getting a two-thirds majority for a bill to claw back $179 million in funding for the United Nations. But only two of the 238 Republicans on the floor voted against it.
Around the same time, the House rules committee held an emergency hearing to breathe life back into the Patriot Act extension. Chairman David Dreier, R-Calif., noted with a mixture of mirth and bitterness that an emergency hearing like this was a "bipartisan tradition." The extension package that failed, he said, was "identical" to the one that passed a Democratic Congress.
This was the message of leading Republicans all day—if the Democrats had stood pat, the bill would have passed.
Dreier passed the microphone to Rep. Rob Bishop, R-Utah, one of the long-serving Republicans who'd voted to reform the act, or delay reauthorization, every chance he got. Bishop would get a chance to change the bill in committee, and it would fail.
"You're going to make me pay for this, aren't you, sir?" said Bishop.
"Yeah," said Dreier, mostly kidding.
The bill was not changed. It was sent back for a majority vote—no amendments allowed—to occur on Thursday. Republicans may have to scale back their ambitions for supermajority votes, but they don't yet have to worry about the Tea Party stopping the clock for civil liberties.