Mitch McConnell’s Two-Part Patriot Act Gamble

The Majority Leader will allow a vote on the House’s USA Freedom Act—and he hopes it fails.

MAY 19: U.S. Sen. Senate Majority Leader Sen. Mitch McConnell (R-KY) turns away after a news conference at the Capitol May 19, 2015 in Washington, DC. The legislators held a news conference with small business owners from Ohio, Wisconsin and Kentucky to discuss trade and 'the importance of exports to American small businesses and the need for Trade Promotion Authority.' (Photo by Alex Wong/Getty Images)
National Journal
Dustin Volz
May 19, 2015, 10:55 a.m.

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.

S.V. Date, Alex Rogers and Brendan Sasso contributed to this article.
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