A bill to curb the intelligence-gathering powers of the National Security Agency came up just short of passing the Senate on Tuesday, but it could have been even closer, if not for some confusion on the Senate floor.
The sole Democrat to oppose the legislation, Sen. Bill Nelson of Florida, said that he went into the chamber intending to vote against the bill because he believes that the NSA should have the power to collect bulk phone data in order to fight terrorism. But his no, the only one on his side of the aisle, so shocked Democratic aides and leaders that they tried to hold the vote open to confirm his choice.
After all 100 senators had weighed in on the matter Tuesday night, Senate Majority Leader Harry Reid and a Senate aide pulled Republican clerks aside on the floor and asked for an additional 15 minutes so that one member could return to the chamber and change his vote. That member, Senate Democratic aides say, was Nelson.
Republican clerks told Reid that the move would not change the outcome of the vote—Democrats would still be one vote short—and Nelson did not make it back to the chamber in before the vote was closed. All told, the bill failed, 58-42.
After Senate Intelligence Chairwoman Dianne Feinstein confirmed her support of the measure in a Democratic Caucus lunch earlier Tuesday, despite her reservations, many observers within and outside of the Capitol assumed that the entire caucus would follow her lead. Reid's leadership team did not whip the vote in advance, allowing Nelson's "nay" to catch them by surprise.
Several aides said Tuesday night that they believed that Nelson's vote against the bill was an error. Rumors swirled in the privacy sphere and among Senate Democrats and on social media that either Nelson had accidentally voted no or that a clerk had misunderstood him.
But after not explaining the rationale for his vote Tuesday night despite multiple requests from the media, Nelson's staff told National Journal Wednesday that he had always intended to oppose the bill and did not ask Democratic leadership to hold the vote open or indicate that he would change his answer.
Thanks to that opposition from Nelson and another "nay" from longtime privacy advocate Sen. Rand Paul of Kentucky, who was considered a crucial vote, Senate Judiciary Chairman Patrick Leahy came up two votes short of the 60 he needed to advance the USA Freedom Act on Tuesday night. The bill failed, and it is unclear if it will resurface in the next Congress, at least in the same form.
Had Nelson changed his vote, however, he would have gotten advocates to 59 yea votes, a potentially magic number.
Paul, who is believed to be a likely candidate for president in 2016, said last week that he felt the bill did not go far enough to curb the NSA's powers and he was concerned about an additional piece of the legislation that would renew portions of the Patriot Act for another two years, including a controversial part known as Section 215, from which the intelligence community derives much of its authority for its bulk surveillance practices.
But sources close to the negotiations said Paul's staff had indicated that the Kentuckian was considering voting to allow debate on the USA Freedom Act because Majority Leader Harry Reid had made the unusual decision to allow amendments on the floor, which would have allowed Paul to try to strengthen certain provisions. Late Tuesday afternoon, Paul's communications director, Sergio Gor, said, "No decision yet," when asked if Paul would vote to advance the bill.
After the vote, Paul's team cast his opposition as a vote to block the continuation of the Patriot Act, making no mention of the other NSA reforms in a press release Tuesday evening. "Today's vote to oppose further consideration of the Patriot Act extension proves that we are one step closer to restoring civil liberties in America," Paul said in the statement.
But just after leaving the Senate floor Tuesday night, Paul told reporters that he "felt bad" for opposing the bill, acknowledging that his vote was likely crucial for supporters.
In the moments leading up to the vote, Paul sat pensively in a chair on the Senate floor, as one Democratic staffer observing the vote noted, "We're watching Paul, everyone is."
But Paul did not speak during the debate, as Sen. Ted Cruz, also an expected 2016 presidential contender, made one final attempt to rally more Republicans behind the USA Freedom Act. Florida Republican Marco Rubio, who may also be weighing a 2016 bid for the White House, rose to the floor to warn that curtailing the NSA could endanger the security of Americans and allow another attack akin to the Sept. 11, 2001, terrorist attacks.
Paul was not on the floor when Reid and the aide attempted to hold the vote for Nelson to return.
Several pro-reform advocates took to Twitter following the Senate's vote to assail Paul's no vote, which they characterized as disingenuous. Several sources privately speculated that his vote was a politically calculating move that keeps him in the good graces of the Republican leadership—Minority Leader Mitch McConnell aggressively whipped his caucus to vote down the measure—while allowing him to maintain his status as a hard-line surveillance reformer.
Although Leahy has pledged to do anything possible to advance his legislation, it appears unlikely that NSA reform will happen in the lame-duck session. And with McConnell and Republicans set to take over the Senate next year, many privacy advocates are concerned that any reform that gets through will be incremental.
Certain portions of the Patriot Act, including the controversial Section 215, are set to expire next summer, and Congress must act in some fashion or risk uncertainty within the intelligence community as the deadline nears.
"Although we appreciate his shared enthusiasm for reining in the NSA, many in the privacy community are deeply disappointed by Senator Paul's vote," said Kevin Bankston, policy director of the Open Technology Institute, in a statement. "By taking what he seemed to think was the strongest possible anti-surveillance stance, Senator Paul ironically ended up shooting the surveillance reform movement in the foot. That'll definitely slow us down as we march down the path toward real reform, but it won't stop us."