Senate leader backed into a corner in Patriot Act battle

Mitch McConnell is in a bind.

The Senate majority leader opposes changes to the National Security Agency, but his proposal to reauthorize surveillance powers under the Patriot Act “cleanly” is unlikely to pass the upper chamber.

After the House increased the pressure Wednesday with an overwhelming vote in favor of an NSA reform bill, McConnell (R-Ky.) began to look for an escape hatch, filing legislation Thursday evening that would push the June 1 deadline back by two months.

But it’s unclear whether a short-term extension could pass the Senate, let alone the House, where reform supporters are vowing to oppose any stopgap legislation.

{mosads}With the deadline looming, McConnell has little time left to find a way out and save the spy powers he has called critical for national security.

“He’s really in a box,” Sen. Richard Blumenthal (D-Conn.) said Wednesday before the House vote. “With all due respect, he’s in a box that the courts have made for him, so to speak, by correctly interpreting the law.”

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 on Americans’ telephone calls.

By forcing the agency to obtain a 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.

But while he’s rejecting the House bill, it’s unclear what other options McConnell might have.

At the end of the month, the part of the Patriot Act that the NSA has used to authorize its phone records program is set to expire, which would kill the program. Last week, a federal appeals court ruled that the law does not authorize the data collection, putting the onus on Congress to act.

Instead of the House bill, McConnell has committed to moving forward with a “clean” reauthorization extending the expiring portions of the Patriot Act for five and a half years.

The Senate is expected to take up that bill next week, but it has run into heavy opposition from both sides of the aisle.

Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have pledged to filibuster the legislation, and the bill is unlikely to pass, given the certain opposition from nearly all Democrats and a handful of Republicans, including Sens. Ted Cruz (R-Texas), Dean Heller (R-Nev.) and Mike Lee (R-Utah).

Even if it could pass the Senate, the “clean” bill would almost surely run into a brick wall in the House, where the Wednesday vote made clear the desire to enact new limits on surveillance.

Most of the 88 lawmakers who voted against the bill did so because they thought its reforms didn’t go far enough, not because they agreed with McConnell’s argument that it would hamstring the NSA.

The Wednesday vote was “a demonstration that a straight reauthorization is not really viable, and anything that is weaker on bulk collection is very risky,” said Harley Geiger, the advocacy director at the Center for Democracy and Technology, and a supporter of the House bill.

Rep. Bob Goodlatte (R-Va.), the head of the House Judiciary Committee and one of the authors of the reform bill, said McConnell’s “clean” reauthorization would be dead on arrival in the lower chamber.

“It would go nowhere. Absolutely nowhere,” he told reporters after Wednesday evening’s vote.

Perhaps realizing the political difficulty of passing his preferred NSA legislation at the same time that the chamber is dealing with trade and highway funding legislation, McConnell on Thursday introduced a bill to push the June 1 deadline for expiring provisions of the Patriot Act to July 31.

“I don’t know how we have the kind of fulsome debate that is going to be required on NSA without passing a temporary extension,” said Sen. John Cornyn (Texas), the chamber’s No. 2 Republican. “There’s a range of views … I don’t know how you get all that done plus highways before we break.”

But it’s not clear that a short-term extension of the NSA powers would pass the House.

Goodlatte and other NSA reformers “will not agree to any extension of the NSA’s bulk collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals,” they said in a statement on Thursday.

Speaker John Boehner (R-Ohio), meanwhile, has pressured the Senate to take up the House reform bill.

“The House has acted to make sure that the administration has the tools to keep Americans safe,” Boehner said on Thursday. “It’s time for the Senate to act.”

So far, GOP leaders in the Senate don’t seem to be buying the threat, as evidenced by the move on Thursday evening.

“I can’t imagine the House would want to see the authority sunset,” Cornyn said.

“I’ve seen the House in a conference religiously find a way to compromise,” echoed Sen. Richard Burr (R-N.C.), the head of the Intelligence Committee and a co-sponsor of McConnell’s “clean” bill. “The fact that they say that doesn’t scare me, and it doesn’t deter me.”

Despite McConnell’s opposition, the USA Freedom Act might 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.”

But the reform bill, too, might not have the votes to pass, especially if McConnell urges Republicans to vote against it. When Democrats controlled the Senate last year, similar legislation came two votes shy of overcoming a filibuster. The opposition is likely to be larger now, with Republicans in command of the chamber.

“I don’t think anybody knows exactly at this point where the votes are,” Thune said.

With few easy solutions, McConnell’s opposition to the USA Freedom Act, which has the support of intelligence leaders as well as the White House, could end up increasing the odds that the Patriot Act provisions aren’t renewed at all.

“It seems that it is McConnell’s apparent unwillingness to allow USA Freedom to move that is most likely going to lead to the result he least wants,” said Kevin Bankston, the policy director at the New America Foundation’s Open Technology Institute and another backer of the reform bill.