Patriot Act’s fate now in Rand Paul’s hands

Rand Paul has the future of the Patriot Act in the palm of his hand.

The Senate is scheduled to hold a rare Sunday evening vote on three  Patriot Act provisions mere hours before they expire at midnight. The late hour — and lack of a clean path forward — means any single senator has an undue amount of leverage to gum up the works.

After staking his reputation on fighting the National Security Agency (NSA) to the bitter end, the Kentucky Republican and White House contender now finds himself with the best chance yet to hobble it.

{mosads}On Saturday morning, he pledged to take no prisoners. 

“Tomorrow, I will force the expiration of the NSA illegal spy program,” he said in a statement distributed by his presidential campaign. 

“I do not do this to obstruct,” he added. “I do it to build something better, more effective, more lasting, and more cognizant of who we are as Americans.”

If he wanted to, Paul certainly could doom parts of the post-9/11 counterterrorism law — at least temporarily.

“It requires unanimous consent to get anything done by midnight — that gives him a lot of leverage,” said Nathan White, the senior legislative manager at Access, an advocacy group that supports reforming the law.

“He’s got a lot of ideological reason to do that, he’s got the support to do it, I don’t think it’s the reason he’s doing it but there’s a campaign financial interest on it,” White added. “He really could gum this up.”

After stalling on several plans to renew expiring provisions of the law last weekend, the Senate will come back to Washington on Sunday to make one last stab at saving three parts of the Patriot Act set to expire. Among the expiring provisions is Section 215 of the law, which the NSA has used to authorize its bulk collection of millions of Americans’ phone records.

Votes are possible after 6 p.m., giving senators just six hours before the laws run out at midnight — and only two before 8 p.m., when the Obama administration has warned the NSA’s phone records program would be disrupted.  

The only sure fire way to prevent the law from lapsing is for the Senate to pass the USA Freedom Act, which would have the NSA give up the phone records program. The bill passed the House with broad bipartisan support, 338-88, earlier this month.

Last weekend, the bill came three votes shy of the 60 it needed to overcome a procedural hurdle in the Senate. Many analysts suspect they might be able to get the votes on Sunday, since it is clearly the last best chance to keep the Patriot Act measures alive.

What happens then, though, is still up in the air.

Procedurally, if 60 senators voted to move onto the bill, lawmakers could have time to introduce amendments and vote on them before voting on final passage. At the wish of any single lawmaker, the process could be delayed until Tuesday — more than a day after the laws die.

It’s at this moment when Paul — as well as allies including Sens. Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.) — would have the most leverage.

Paul has said he would not object to moving ahead on the bill if he were able to bring two amendments up for a simple majority vote. If Majority Leader Mitch McConnell (R-Ky.) prevents that from happening, he would have every reason to kill the law.

There’s a lot of pressure on Paul to go big.

His staunch opposition to the NSA has been a major factor in his presidential campaign, and on Friday the campaign announced an “emergency 48 hour ‘NSA Spying Showdown’ Money Bomb.”

A super-PAC aligned with Paul also released an aggressive wrestling-themed attack adcalling the Sunday floor fight “the greatest brawl for liberty of the century.”

Even if Paul is able to propose his amendments, he could still torpedo the process.

Paul’s office has declined to say exactly which two amendments he would demand a vote on, but it has issued a list of ten possible measures he has co-written with Wyden.

On that longer list are amendments to close a “backdoor search loophole” that allows the government to collect Americans’ communications under a provision meant to target foreigners. One measure would prevent the government from forcing companies to give them “backdoors” to crack their encryption, and another would rein in an expansive executive order that has been used to condone various types of government spying.

Many of those measures have received strong bipartisan support in the House. Many civil libertarian senators would be hard pressed to vote against them.

At the same time, defenders of the NSA might also be able to introduce amendments that could get significant support. Many lawmakers have been concerned that the USA Freedom Act would not require phone companies to hold onto their customers’ data for any specific length of time. A measure forcing them to retain the data could get broad support.

“I think that amendments could be very problematic, depending on the amendments,” said Harley Geiger, advocacy director at the Center for Democracy and Technology, which supports the USA Freedom Act. “It could kill the bill.”

Passage of any single amendment would doom the effort. If the Senate passed anything other than the exact bill that moved through the House that would force the two chambers to work out their differences, taking lawmakers past the Sunday midnight deadline.

The multiple moving parts — and lack of a clear plan from anyone involved — makes it seem all the more likely than ever that Congress lets the law die, at least temporarily. 

“I think there’s more of a chance of it expiring than anything else right now, just because there’s so many different factors,” said one lobbyist working on the issue.

“I just can’t tell after the way the weekend played out.”