[dropcap]S[/dropcap]ENATOR Mark Udall, engaged in a break-neck reelection bid against Republican Congressman Cory Gardner, has every reason to tout his critical record on the NSA and privacy at the same pitch that his campaign emphasizes Gardner’s record on personhood. But in a race that’s become decidedly negative on both sides, one of the nation’s most important issues isn’t driving one of its most important races.
On the face of it, putting some congressional guardrails on the National Security Agency’s now notorious dragnet collection of citizens’ private communication data seems like the perfect stump for Udall and not a bad bet for Gardner.
Instead, they’re going negative at a point in the campaign when it’s believed that candidates must define their opponents — negatively. Gardner is flogging Udall for his support of Obamacare, and Udall is all over Gardner’s shifting position on personhood. Substance is a casualty of this war.
Both lawmakers have voted for bills specifically designed to curtail the collection of private data. The issue itself forms a nice bipartisan bridge between civil liberties and limiting the size of government — it may be the weightiest bipartisan issue in Congress today. Most of all, privacy is a likely win among the enigmatic Unaffiliated third of Colorado’s voting population on which the Senate race will turn.
Earlier this year, Republican Senator and speculative presidential candidate Rand Paul of Kentucky championed the issue of NSA spying as one which would draw young voters — who elected President Obama at a ratio of three-to-one — back to the Republican party. Conservative pundits have likewise tagged the NSA’s snooping as “the one issue millennials will vote for.”
Jon Caldara, the president of the free-market think tank The Independence Institute, said that’s probably true for millennials — a generation of voters who came of age in an era when job opportunities can be won or lost over one’s Facebook profile.
With taglines like “let’s shake up the Senate” and repeat references to “a new generation of leadership”, Gardner, 39, is clearly bringing up age in a race where he is the much younger candidate (Udall is 64). Gardner also has a supremely robust and engaging social media program. His twitter feed is full of pictures of himself on the campaign trail and Gardner routinely uses millennial-primary platforms like Facebook.
And yet Gardner doesn’t appear to be campaigning on privacy, likely due to the fact that Udall’s record on the issue is too strong and because the issue itself is widely believed to be too broad, even theoretical, to swing votes. Instead, Gardner’s campaign has focused on linking Udall to the Affordable Care Act/ Obamacare and to hitting Udall, a conservationist, on energy policies like the Keystone Pipeline.
“It’s not going to be nearly the same issue as things like Obamacare and energy, things that are more direct to people’s’ day-to-day lives,” said Caldara of privacy as a major force in the campaign.
“For most Americans getting spied on is an abstraction,” he added. “It’s hard to get upset about things you’re not allowed to know about.”
Udall has been upset about the NSA’s bulk collection of private citizens’ communications for some time. Along with other senators on the Intelligence Committee — notably Ron Wyden (D-OR) — Udall has made himself a leader on the issue. He voted against the Patriot Act in 2001 and ten years later fought to amend the act by limiting the scope of the surveillance the NSA could engage in and increasing congressional oversight.
“[A]s a member of the Intelligence Committee, I now have information about how the executive branch is interpreting the law, and I believe Americans would be alarmed if they knew how it was being carried out,” Udall said of the Patriot Act in 2011.
Two years later, when Edward Snowden leaked news of the NSA spying on American citizens and Udall turned out be bracingly correct about the secret Foreign Intelligence Surveillance court’s legal interpretations of the Patriot Act allowing that collection, the reporter who broke the news, Glenn Greenwald, specifically recognized Udall for trying to warn the public.
Udall himself immediately forged ahead with legislative reforms that would curtail state surveillance. He was an early and vocal co-sponsor of the Intelligence Oversight and Surveillance Reform Act, which Udall said would “prohibit bulk collection of Americans’ records, shield Americans from warrantless searches of their communications and install a constitutional advocate to argue significant cases before the secret Foreign Intelligence Surveillance court.”
That bill didn’t end up getting as much traction as a modified version known as the USA Freedom Act, which recently passed in the House. Udall has criticized the measure, calling it watered-down, because it contains a loophole that would still allow what are known as “backdoor” data searches. He’s now advocating a tougher version of that same bill in the Senate.
Udall was outspoken on the issue in Congress before the August recess — it was his senate office, not his campaign, that tweeted his call for the resignation of CIA Director John Brennan after news that the CIA snooped, NSA-style, on congressional computers in possible violation of separation of powers.
Now on the campaign trail, Udall has largely kept the issue abstract with this tagline: “At the heart of freedom is the freedom to be left alone.”
“That’s a core American understanding of freedom,” said Juan Lindau, a Colorado College political science professor who teaches a course on secrecy and democracy.
“That space where you’re living your life without harming others is what we define as your space where you’re left alone, where you’re free to do whatever you want.”
While the freedom to be left alone line is likely to appeal to exactly the kind of Coloradan Udall needs to vote for him — namely that fiercely (politically) independent type — this edict on freedom and privacy also appears to be a serious foundational principle for Udall.
Udall himself brings up privacy as an abstract principle almost every time he appears publicly. He’s even managed to pull that theoretical thread into more concrete issues. Notably, he described his bill to overturn the U.S. Supreme Court’s Hobby Lobby decision as fundamentally about an employee’s privacy.
“Privacy is an inalienable human right that we’ve codified in the Constitution,” Udall told me when I more or less sprung the privacy-as-principle question on him during an otherwise unrelated press junket. Taking a tour of flood recovery efforts in Rocky Mountain National Park at the time, the senator made sure to add that he not only believes the freedom to be left alone is an American value, but that it is a distinctly Western one.
But instead of campaigning on what is arguably Udall’s greatest demonstration of leadership and precinct politics in his role on the Senate Intelligence Committee, the pro-Udall strategy has been to run an almost exclusively negative campaign targeting Gardner for everything from his ties to big oil, to his confusing support of personhood, to his conservative record on immigration.
Under that framework, privacy might not be headlining the re-elect Udall campaign because there’s no clean hit on Gardner when it comes to the NSA. Like many politicians who didn’t lead on the issue or have access to information within the intelligence committees, Gardner’s votes have tacked closer to the rapidly evolving public discourse on the issue than to any party line.
In 2011 Gardner voted to re-up the Patriot Act inclusive of the very policies Udall was then fighting to amend out. A year later Gardner also voted to extend Bush-era amendments to the Foreign Intelligence Surveillance Act credited with allowing the NSA to wiretap domestically and abroad without an official public warrant so long as their primary objective is to collect foreign intelligence.
Gardner was hardly alone in that vote. Of the entire Colorado delegation, only representatives Jared Polis and Diana DeGette joined Udall in voting against it.
At least two major things happened in 2013 that could have swayed Gardner’s votes on the issue of citizens’ privacy — Edward Snowden leaked information about the NSA’s spying programs and Gardner decided to run for Senate against Udall.
When Greenwald began reporting from the Snowden leaks Gardner called the revelation that Americans’ cellphones were almost universally tapped “shocking” and “seriously concerning.”
“While we must keep our country safe, we cannot undermine the security of our rights,” Gardner posted to Facebook in June of 2013.
Gardner’s votes changed after that. In July of 2013 he joined a minority of Republicans in supporting an amendment to bar blanket data collection under the Patriot Act (the amendment narrowly failed in the House by 12 votes). Just a few months ago Gardner voted for another amendment to strictly limit a government official’s ability to request FISA wiretap records on an American citizen. And most recently, Gardner became a co-sponsor of the newly-passed House version of the USA Freedom Act.
Gardner’s office has not returned requests for comment regarding his stance on privacy, but the candidates have both officially committed to debating in Grand Junction on September 6 and at the Denver Post on October 7 where the substantive policy issue is likely to come up.
It will be interesting to see if privacy does become a feature of those debates, particularly with privacy’s twin issue, disclosure, making headlines after news that the CIA hacked the computers of the Senate Intelligence Committee — in possible violation of the separation of powers — while the Committee was investigating the CIA’s state-sanctioned use of torture.
“The legislative branch has an oversight function. They are the representatives of the people and I see them as the fundamental guards of democracy,” said Lindau. “You cannot have a functioning, viable democracy without some measure of transparency.”
[Public Domain image of NSA Utah data center by Akos Kokai]