To save the Patriot Act’s expiring spying powers, Mitch McConnell is risking letting them die entirely.
And it’s not just one gamble that the Senate majority leader is taking. He’s placing two bets.
By announcing Tuesday that he will allow a vote on a House-passed measure that would effectively end the National Security Agency’s bulk collection of Americans’ call records, McConnell’s grand strategy to block substantive surveillance reform came into clearer focus.
“Regardless of what the House’s position may be, we have an obligation to deal with the Patriot Act,” McConnell told reporters at a news conference. “We’re going to deal with it this week, and it’s my view that letting it expire is not a responsible thing to do.
“So we’ll see where the will of the Senate is. We’ll find out where the votes are,” he added.
But McConnell has no desire to see the USA Freedom Act—a measure he repeatedly has denounced as something that could help terrorists kill Americans—pass. Instead, he hopes to watch it fail to accrue the 60 votes necessary to advance. That could jolt more senators toward his preference of extending unhindered the Patriot Act’s three surveillance provisions due to expire June 1.
Such a sequence—a vote on the Freedom Act followed by a vote for a clean renewal—could give McConnell what he wants. But in addition to banking on the Freedom Act’s failure, McConnell is gambling that the Senate can move quickly enough to catch House lawmakers before they skip town Thursday.
That second gamble faces longer odds because Sens. Rand Paul and Ron Wyden have pledged to filibuster attempts to re-up the expiring provisions. And it’s not clear the House would accept anything less than the Freedom Act.
The pressure to get something to the House before it recesses until June 1 was further compounded Tuesday by the Congressional Research Service, which addressed confusion about when, precisely, the Patriot Act provisions will expire. The moment the calendar turns to June is when the authorities lapse, the nonpartisan researchers said, meaning House members would not be able to simply reauthorize the law the day it returns—they’d have to reenact it entirely.
During his press conference, McConnell made sure to highlight that there was still substantial doubt as to whether the Freedom Act had the 60 votes necessary to advance through his chamber. His top deputy, Majority Whip John Cornyn, also said he wasn’t sure the measure would have 60 votes—and would not commit to voting for it.
“What makes sense is we give senators a vote on the House bill, and if that fails—and a version of it did fail last fall—then the alternative would be a short extension and we work out the differences,” Cornyn told reporters.
Last week, McConnell initiated a so-called “fast track” procedure to allow the USA Freedom Act and a two-month extension of the expiring Patriot Act provisions to go immediately onto the floor. Until Tuesday, it was not known if he would allow the reform measure to earn a vote.
The Freedom Act, which overwhelmingly cleared the House last week, would end the NSA’s call-data dragnet in favor of a system that allowed intelligence agents to request data from telephone companies on an as-needed basis with judicial approval.
McConnell and a number of his fellow Republican defense hawks still favor a straight reauthorization of the Patriot Act’s three spy provisions due to sunset June 1, including Section 215, which the NSA uses to justify its mass surveillance of U.S. phone metadata. That once-secret program was exposed by former NSA contractor Edward Snowden two years ago.
Most Democrats are expected to vote in support of the White House-backed Freedom Act, a version of which earned 58 votes in the upper chamber in November. At the time, Sen. Bill Nelson cast the lone Democratic “no” vote, while McConnell whipped his Republican caucus against the measure.
“If it’s the same, I’ll vote against it,” Nelson said Tuesday. “But I don’t know that that’s the situation … I’ve got to see what the differences are.”
Asked if he would support a clean Patriot Act extension, Nelson said: “Probably so.”
Republican support for the bill remains thin, however. Though the Freedom Act boasts five GOP cosponsors—including Sen. Ted Cruz of Texas, who is running for president—most have indicated they are reticent about voting against their leadership. Sen. John Thune of South Dakota, the No. 3 Republican in the upper chamber, said Tuesday he was still likely a no vote on the bill absent some changes.
But Sen. Chuck Schumer, a New York Democrat, brimmed with confidence that the Freedom Act could pass on the floor, and criticized McConnell for bringing the debate so close to the expiration deadline.
“Leader McConnell is alone on an island, staunchly holding on to a five-year extension that has no chance of becoming the law,” Schumer said. “Now today, he indicated he would consider putting USA Freedom Act up for a vote this week. That’s what we’ve been asking for for months. Senator McConnell, this is a lifeboat. You’re alone on this island. Take the boat, get off the island. Let us vote.”
White House Press Secretary Josh Earnest said the problem with simply extending the Patriot Act for a time is that it might not have enough votes to pass in either chamber.
“The only option that’s really left for the United States Senate, if they’re genuinely concerned about protecting the authority of our national security professionals to keep us safe, is to pass the USA Freedom Act,” Earnest said.
While the White House has focused its lobbying efforts on Capitol Hill in recent weeks on its trade package, Earnest said it also has worked to push the NSA legislation. “There have been a number of conversations between senior administration officials, principally members of the president’s national security team, and members of Congress,” Earnest said.
“We’re hopeful that the Senate will allow that specific piece of legislation to come up for a vote,” Earnest added. “We do believe it has the bipartisan support necessary to pass the Senate. The president would, of course, sign it into law before June 1.”
McConnell, however, thinks the math and clock are both on his side. And signs were apparent Tuesday that the terse strategist is still working to whip his caucus against the Freedom Act. His presser came following Senate lunches, during which former Attorney General Michael Mukasey, who served under George W. Bush, briefed Republicans on the importance of the Patriot Act’s surveillance authorities.
While defending the NSA’s phone-records dragnet, Mukasey did note that a recent federal appeals court ruling deeming the program illegal could complicate McConnell’s efforts to renew the Patriot Act without changes, given the legal uncertainty that could result, according to two senators present.
“He did recommend some acknowledgment of the decision so that it is addressed in the legislation,” said Sen. John Hoeven, a North Dakota Republican.