Over the past few years, Congress worked through artificial deadlines on spending programs by mainly coming up with last-minute extensions to cover government operations. Mitch McConnell pledged to put an end to the cycle of brinksmanship on budgeting, and successfully returned the Senate to regular order after the disastrous leadership of Harry Reid. Now, though, McConnell faces another bout of brinksmanship on the Patriot Act, and it seems as though few in either chamber or either party want to provide him a net:
With only days left to act and Rand Paul threatening a filibuster, Senate Republicans remain deeply divided over the future of the PATRIOT Act and have no clear path to keep key government spying authorities from expiring at the end of the month.
Crucial parts of the PATRIOT Act, including a provision authorizing the government’s controversial bulk collection of American phone records, first revealed by Edward Snowden, are due to lapse May 31. That means Congress has barely a week to figure out a fix before before lawmakers leave town for Memorial Day recess at the end of the next week.
The prospects of a deal look grim: Senate Majority Leader Mitch McConnell on Thursday night proposed just a two-month extension of expiring PATRIOT Act provisions to give the two sides more time to negotiate, but even that was immediately dismissed by critics of the program.
The issue here is Section 215 surveillance, which McConnell wants reauthorized cleanly and many in Congress want to end entirely. The opponents of 215 surveillance feel they have momentum after an appellate court ruled the NSA’s bulk data collection unconstitutional, a position that the Supreme Court will likely have to address if Congress renews the authorization. The ruling gave critics more credibility for their public arguments that the NSA has conducted a mass surveillance outside of any rational control, and now both Rand Paul and Ron Wyden are threatening filibusters on anything that reauthorizes the program, even for a short period of time.
McConnell has another option, but at least for now seems unwilling to take it. The House passed a bill with a large bipartisan majority that replaces the NSA’s current program with another more complicated process to get the data, but so far McConnell has balked at a floor vote for it:
McConnell insists he has no intention of following the lead of the House, which voted 338-88 to end the NSA’s bulk collection of records about Americans’ telephone calls.
By forcing the agency to obtain narrower set of records from private phone companies, the House bill — called the USA Freedom Act — would saddle the NSA with “an untested, untried, and more cumbersome system,” McConnell said.
However, McConnell is keeping his options open:
Despite McConnell’s opposition, the USA Freedom Act may end up getting a vote in the Senate after all. In addition to filing his short-term bill on Thursday, McConnell also took the first procedural step in bringing the NSA reform legislation up for a vote.
“My guess: there will probably be a process that allows that bill to be voted on,” Sen. John Thune (S.D.) — the third-ranking Republican — said Thursday of the House legislation. “I’m sure it’ll be voted on in some form, and then there will probably be a process that allows for a vote on the five-year extension that Sen. McConnell and Sen. Burr put forward, and we’ll see where that ends up.”
On the latter, the answer is: nowhere. Even aside from the filibuster, it appears that McConnell doesn’t have the votes to get to 51 on the clean five-year extension, and even if he did, the House won’t pass it. As The Hill reports, most of the 88 Representatives that voted against the reform package opposed it for not going far enough on reform.
What about the two-month extension? That’s also a dead letter in the House, according to Rep. Bob Goodlatte (R-VA). McConnell and his team are betting that the House will move on an extension rather than see the program expire altogether, but that’s brinksmanship without a net. Most of the House want an end to Section 215 data trawling, so the value of that bluff is somewhat limited. Besides, the House will argue, they have already passed a reauthorization, one that addresses the concerns of the appellate court to tighten the reins on the NSA. If McConnell wants his extension, they will argue, he can take up the House bill — and any gap in operations will be his fault, and not theirs.
It sounds very familiar. The only element missing from the “fiscal cliff” scenario is the sanctimonious lectures from Barack Obama, who backs McConnell on this issue but has wisely decided to keep quiet about it. With the deadline approaching, I’d expect to see McConnell give Plan C — the House bill — a floor vote at the end of the month. The next question will be whether Paul, Wyden, and other NSA opponents even let it get that far.