A Sea Change in Congressional Attitudes on Surveillance

About two years ago I posted an analysis of the vote in the House of Representatives on the so-called “Amash Amendment,” an attempt to restrict the bulk collection of telephone records by the National Security Agency. Observers at the time were startled when, despite widespread opposition from the Obama Adminstration and House leadership, the amendment failed on a close vote of just 217 to 205 in July, 2013.

This past week the House had another chance to vote on the question of NSA surveillance, and this time the House voted to put new restrictions on the mass collection of telephone data. In particular, the telephone and Internet providers will retain the data and provide it only in response to government requests. This so-called USA FREEDOM Act of 2015 passed the House by a vote of 338 to 88. Perhaps the May 7th decision by the Second Circuit Court of Appeals ruling the entire NSA program illegal encouraged the lop-sided outcome.

Opponents of the surveillance programs were quick to argue that this Act does not go far enough in terms of reining in the activities of the FBI and NSA. Justin Amash himself, the author of the 2013 amendment, voted against the FREEDOM Act, arguing that:

H.R. 2048 threatens to undo much of the progress resulting from the Second Circuit’s opinion. The bill’s sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends “bulk” collection. It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.

Even House leaders who opposed his 2013 amendment supported the FREEDOM Act.  This included both House Majority Leader Kevin McCarthy and Minority Leader Nancy Pelosi.  (The Speaker typically does not cast roll-call votes and did not vote on the FREEDOM Act.  He did choose to vote against the Amash Amendment, perhaps to indicate his strong opposition to that provision.)

I have compared the votes on the FREEDOM Act with those on the Amash amendment two years ago.


The top half of the table presents the actual votes; the lower half presents the percentages based on the Members’ votes on the Amash Amendment.  Only seven Members voted against both provisions.  Those who opposed the Amendment in 2013 voted overwhelmingly, 94 percent, in favor of the FREEDOM Act.  Most of the opposition to the Act came from the supporters of the Amendment.  Nearly two out of five of those Members opposed the Act as did Amash himself.  New Members of the House also voted heavily in favor of the Act; only eleven of the 67 new Members in the 114th Congress voted no, or just 16 percent.