How the Senate Fell Apart and Failed to Deal With the Patriot Act

The Senate leaves for vacation with unfinished business on NSA surveillance.

Senator Rand Paul speaks to guests at a campaign event at Bloomsbury Farm on April 25, 2015 in Atkins, Iowa.
National Journal

The Sen­ate is go­ing on va­ca­tion, but it didn’t fin­ish its home­work.

With no solu­tion in sight to the Pat­ri­ot Act quag­mire that kept law­makers vot­ing un­til past 1 a.m. Sat­urday, sen­at­ors have left town for a week. They will re­turn next Sunday—just hours be­fore the dead­line to act on the fu­ture of the fed­er­al gov­ern­ment’s sweep­ing do­mest­ic-spy­ing powers.

In a tense vote after mid­night, the Sen­ate failed to move for­ward on the House-passed USA Free­dom Act, le­gis­la­tion that would end the Na­tion­al Se­cur­ity Agency’s bulk col­lec­tion of call data. The vote was 57-to-42, just short of the 60-vote threshold needed after stiff op­pos­i­tion and last-minute whip­ping Fri­day night in­to Sat­urday from Ma­jor­ity Lead­er Mitch Mc­Con­nell and oth­er GOP de­fense hawks. Sen­at­ors then eas­ily re­jec­ted a mo­tion to move ahead on a Mc­Con­nell-backed two-month ex­ten­sion of the Pat­ri­ot Act’s spy­ing au­thor­it­ies.

If the two high-stakes votes at 1 a.m. wer­en’t enough, the dra­mat­ic scene that fol­lowed showed how tense things are in the Sen­ate.

Mc­Con­nell pro­posed an even short­er-term ex­ten­sion of the sur­veil­lance au­thor­it­ies—from their cur­rent June 1 ex­pir­a­tion date through June 8, giv­ing the Sen­ate time to take its Me­mori­al Day re­cess be­fore re­turn­ing to take up the is­sue once again. Sen. Rand Paul ob­jec­ted on grounds he wanted up-or-down votes on his amend­ments to the Free­dom Act, and what fol­lowed was an un­usu­al ex­change between Mc­Con­nell and pro-re­form sen­at­ors that res­ul­ted, where much of the night did, in no solu­tion.

Mc­Con­nell sug­ges­ted put­ting off the de­bate un­til June 5, earn­ing ob­jec­tion from Sen. Ron Wyden of Ore­gon. Then Mc­Con­nell tried for June 3, to the ob­jec­tion of Sen. Mar­tin Hein­rich of New Mex­ico. Fi­nally the ma­jor­ity lead­er asked for an ex­ten­sion through June 2. Paul ob­jec­ted again, and the Sen­ate took an­oth­er short break.

A flushed Mc­Con­nell at­temp­ted to fig­ure out his next move, while Paul—the ju­ni­or sen­at­or from Ken­tucky who’s us­ing his NSA stand to pro­mote a pres­id­en­tial run—strolled around the peri­met­er of the cham­ber, hands tucked in­to his suit pock­ets.

On Twit­ter, he cel­eb­rated: “Pat­ri­ot Act fili­buster suc­cess­ful and on­go­ing. Bulk phone-re­cord col­lec­tion set to ex­pire.”

After meet­ings on the Sen­ate floor, Mc­Con­nell an­nounced the Sen­ate would try again on May 31, hours be­fore the pro­gram is set to ex­pire. Sen­at­ors will have “one more op­por­tun­ity to act re­spons­ibly,” said a vis­ibly flustered Mc­Con­nell.

Minor­ity Lead­er Harry Re­id took a thinly veiled jab at long­time rival Mc­Con­nell, cast­ing blame on how the new ma­jor­ity lead­er crunched the sched­ule by spend­ing weeks on a trade agree­ment that lacks a firm dead­line.

“That’s what hap­pens when you try to jam everything in just a short peri­od of time,” Re­id said. When asked if any­thing would change next Sunday, Re­id said, “I don’t know, you’ll have to ask Rand Paul [and] the Re­pub­lic­ans.”

Paul’s an­swer to the same ques­tion of what would change in a week?

“It de­pends, some­times things change as dead­lines ap­proach,” Paul said as he quickly walked down the Cap­it­ol’s marble steps and in­to a car wait­ing for him out­side.

Sen. An­gus King, a Maine in­de­pend­ent, said there may be a bet­ter chance for pro­gress after some time off. “We have to re­fo­cus on the fact that this is an im­port­ant pro­gram, that this is an ex­traordin­ar­ily dan­ger­ous time, and it’s on us to find a solu­tion,” King, who voted against the Free­dom Act, said. “There are some… there are some steps that need to be taken be­fore next Sunday, but I don’t think there will be any breach in the pro­gram.”

Re­pub­lic­an Sen. Mike Lee, a co­spon­sor of the Free­dom Act, cri­ti­cized the delay in bring­ing up the bill un­til Fri­day night. “I think we should have done that at the be­gin­ning of this week. This was an en­tirely avoid­able scen­ario,” Lee said. “I think we should have put it on the floor earli­er. It was a big mis­take not to.”

But even if the Sen­ate re­con­venes on Sunday and man­ages to pass le­gis­la­tion push­ing back the ex­pir­a­tion, mem­bers of the House have prom­ised to not let any­thing through but the Free­dom Act, a meas­ure that passed the lower cham­ber over­whelm­ingly last week.

The House won’t re­con­vene from its cur­rent Me­mori­al Day re­cess un­til the even­ing of June 1—after the pro­vi­sions will ex­pire. Rep. Justin Amash, a Michigan Re­pub­lic­an and one of Con­gress’s most strident crit­ics of the Pat­ri­ot Act, vowed late Fri­day to block any un­an­im­ous-con­sent deal that would al­low the House to agree to any clean short-term ex­ten­sion that the Sen­ate might pass.

Amash was sit­ting on the side of the Sen­ate cham­ber Fri­day even­ing along with Rep. Thomas Massie, a Ken­tucky Re­pub­lic­an. Dur­ing the Pat­ri­ot Act votes, Paul could be seen chat­ting and laugh­ing with the pair of civil liber­tari­ans.

After the se­quence of votes, Amash cel­eb­rated on Twit­ter with an #Ex­pireTh­ePat­ri­otAct hasht­ag.

All this is the cul­min­a­tion of a week of Sen­ate drama, in­clud­ing Paul’s “fili­buster” on Wed­nes­day af­ter­noon. The GOP pres­id­en­tial can­did­ate prom­ised Fri­day to re­port­ers and on Twit­ter to con­tin­ue block­ing ef­forts to ex­tend the Pat­ri­ot Act’s spy pro­vi­sions, a pledge that comes as a second act to his 10-and-a-half-hour floor take­down of gov­ern­ment sur­veil­lance earli­er in the week.

“Will be see­ing every­one overnight it seems,” Paul tweeted earli­er Fri­day even­ing. “My fili­buster con­tin­ues to end NSA il­leg­al spy­ing.”

Dur­ing a lag in between votes on the fast-track trade bill earli­er Fri­day, Paul and Mc­Con­nell talked one on one briefly in the middle of the Sen­ate floor as oth­er law­makers chat­ted around them. Their con­ver­sa­tion ap­peared con­geni­al, but Paul soon walked away and ex­ited to cham­ber. Minutes later, his Twit­ter ac­count an­nounced his hol­dup, and Mc­Con­nell an­nounced a delay on the floor soon after to a vote that would hap­pen after mid­night.

Re­pub­lic­an Sen. Dean Heller, a co­spon­sor of the USA Free­dom Act, ad­mit­ted that Paul is get­ting on the nerves of his fel­low sen­at­ors.

“It’s caus­ing some frus­tra­tion for some mem­bers,” Heller told re­port­ers. “Sen. Paul is go­ing to do what Sen. Paul wants to do, and every­one lets him do it. Some­times it looks more like pres­id­en­tial polit­ics than any­thing else.”

“He has a po­s­i­tion, he has a point,” he ad­ded. “We don’t dis­agree with him, but there are prob­ably oth­er ways he could be ef­fect­ive, or more ef­fect­ive.”

Sen. John Mc­Cain wasn’t happy, either. “There’s a new breed in the Sen­ate and we have seen the mani­fest­a­tion of it, of people who are will­ing to, one or two or three, are will­ing to stand up against the will of the ma­jor­ity,” Mc­Cain said. “Some time ago, the Sen­ate could sit down and try and work things out.”

Ma­jor­ity Whip John Cornyn re­fused to cri­ti­cize Paul’s man­euver, say­ing that a sen­at­or’s “greatest tool is to ob­ject to un­an­im­ous con­sent.”

Dur­ing his first ob­jec­tion, Paul said he was block­ing Mc­Con­nell’s short-term ex­ten­sions be­cause he wanted a simple-ma­jor­ity vote on two of his pro­posed amend­ments to the Free­dom Act. Paul said he thought that was a fair com­prom­ise from a start­ing point of the six amend­ments he had been seek­ing, which Re­pub­lic­an lead­er­ship said would have re­quired 60 votes.

Paul out­lined his amend­ment de­mands dur­ing his talk­a­thon on Wed­nes­day. His ed­its to the House bill would pro­hib­it the gov­ern­ment from man­dat­ing that tech firms cre­ate so-called sur­veil­lance “back­doors” in their products, which the NSA could ac­cess. They would also close a loop­hole that al­lows back­door searches, re­fer­ring to the NSA’s prac­tice of search­ing through for­eign­ers’ data to “in­cid­ent­ally” col­lect in­form­a­tion on Amer­ic­an cit­izens who cor­res­pond with the tar­gets.

Paul also wants a “con­sti­tu­tion­al ad­voc­ate” to be present in or­der to ar­gue against the gov­ern­ment in the FISA Court, and he wants to ex­pand pro­tec­tions on cus­tom­ers’ data held by third-party com­pan­ies such as Google or Face­book.

Oth­er pro­pos­als would re­quire courts to ap­prove na­tion­al se­cur­ity let­ters to “make them more like war­rants,” al­low­ing for Amer­ic­an cit­izens to ap­peal sur­veil­lance or­ders handed down by the FISA Court, and im­ple­ment lim­it­a­tions to the Re­agan-era Ex­ec­ut­ive Or­der 12333, which some pri­vacy ad­voc­ates say al­lows the NSA the ma­jor­ity of its spy­ing power.

Be­fore Fri­day night’s ses­sion, Mc­Con­nell’s of­fice was telling law­makers that sup­port­ing the USA Free­dom Act would mean they would have to stay in town longer—a pitch made dur­ing an af­ter­noon meet­ing with much of the Re­pub­lic­an caucus.

“Mc­Con­nell and his staff force­fully made the case that a vote for USA Free­dom was a vote to can­cel re­cess,” a Re­pub­lic­an aide said.

Now, they will have their break, but still have work left to do.

This story has been up­dated.

Contributions by Sarah Mimms, Brendan Sasso and Rachel Roubein
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