The New Yorker (Opinion):
By Ryan Lizza
November 30, 2015
June 2, 2015, Congress did something that it rarely does: it passed a law. The U.S.A. Freedom Act, which had passed the House in May, cleared the Senate, and President Obama signed it the same day. Though few considered it perfect, the bill was a rare example of how Congress should work. In 2013, Edward Snowden had revealed that the N.S.A. was collecting the phone records of nearly all Americans and assembling the information into a massive database, in which the calling patterns of suspected terrorists could theoretically be uncovered. Civil libertarians—and at least one federal court—argued that the program was illegal and probably unconstitutional. Public concerns about the program forced Obama to modify the way it was run and triggered hearings in Congress, which drafted a reform bill.
The product, the U.S.A. Freedom Act, was hardly a radical piece of legislation. As of Sunday, the government is no longer supposed to collect essentially every American’s phone records. Telephone companies will now retain the data, and the government will be required to get a court order to collect information on a suspect’s number. Civil-liberties organizations, like the A.C.L.U., which endorsed an early version of the bill, decided that the final version had been so weakened during the legislative process, in order to win over Republicans, that it was no longer worth supporting. Still, the legislation made the N.S.A. program more accountable to Congress, and more transparent.
The N.S.A. bill passed by a wide margin in both chambers—also a rare event in Washington. The House vote was 303–121, and the Senate vote was 67–32. Twenty-two Republican Senators voted for it. One of the surprising yes votes on the Republican side was Ted Cruz, who not only supported the bill but was one of its nine original co-sponsors, a group of five Democrats (including Chuck Schumer, of New York) and four Republicans.
Since he arrived in the Senate, in 2013, Cruz has not been known as an effective legislator. He has alienated Republican colleagues and aligned himself with a strand of anti-government conservatism that sometimes seems hostile to the act of legislating itself. But he boasted that he was “proud” of this particular vote. “The USA FREEDOM Act is the right policy approach,” he said in a statement when it passed. “It protects the civil liberties of every American. It ends the federal government’s bulk collection of personal data from law-abiding citizens. And at the same time it ensures that we maintain the tools that are needed to target violent terrorists and prevent acts of terror.”
Two years earlier, in June of 2013, the Senate also seemed to work, if for a brief moment. It passed the Border Security, Economic Opportunity, and Immigration Modernization Act, commonly known as comprehensive immigration reform. One of the chief architects of that bill was Marco Rubio, who labored for months to put together a bipartisan coalition and forge a workable compromise that included the Democratic priority, of a path to citizenship for most undocumented immigrants living in the United States, and the Republican priority, of enhanced border security to keep new waves of undocumented immigrants out of the country. His efforts paid off with an impressive 68–32 vote in the Senate, but the bill was never taken up in the House because conservatives there rebelled against it. Rubio’s immigration bill, even though it never passed, was arguably his biggest achievement as a senator.
Now Cruz and Rubio are locked in a battle against each other as they court the Republican primary electorate in their runs for President. Each is seizing on the other’s legislative accomplishment as evidence that his opponent is a dangerous sellout to the conservative cause. On November 16th, three days after the terrorist attacks in Paris, Rubio said that Cruz had “voted to weaken the U.S. intelligence programs.” American Encore, a group that supports Rubio, quickly adopted the same line and is now running an ad in Iowa alleging that Cruz “voted to weaken America’s ability to identify and hunt down terrorists.”
When reporters asked Cruz about the ad on Saturday, he responded by turning the conversation to immigration and Rubio’s prominent role working with Democrats and the White House. “Senator Rubio’s campaign has been desperate to change the topic from his longtime partnership with and collaboration with President Obama and Chuck Schumer in pushing a massive amnesty bill,” Cruz said.
Politically, it’s not entirely clear who has the upper hand in this fight. Immigration reform seems like a more toxic issue for conservatives than the N.S.A.’s metadata program, which has long had strong critics in the libertarian wing of the Party—although, obviously, national-security issues are now dominating the public debate. And Cruz seems slightly more comfortable defending his N.S.A.-reform vote than Rubio does defending his immigration-reform vote; on Saturday, Cruz also said that Rubio was afraid of “the criticism that he has received that he is not willing to protect the Fourth Amendment privacy rights of law-abiding citizens.” But while the politics are unclear, the implications for governance are more obvious.
Numerous governors have already dropped out of the race, candidates who, despite their flaws, ran large states and were reëlected by voters: Scott Walker, of Wisconsin; Bobby Jindal, of Louisiana; Rick Perry, of Texas. The governors still in the race—Jeb Bush, the former governor of Florida; Mike Huckabee, the former governor of Arkansas; John Kasich, the governor of Ohio; and Chris Christie, the governor of New Jersey—are struggling.
It now appears that we are entering a period of the campaign in which the two Republican senators who may have the best shot at unseating the front-runner, Donald Trump, and winning their party’s nomination are veering into a potential murder-suicide pact over who was more complicit in actually trying to get something accomplished in Washington. The lesson for any senator who aspires to higher office is clear, and depressing: it’s safer to do nothing at all than it is to try to solve a big problem.
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