Republicans in showdown over NSA spy program

Republicans in showdown over NSA spy program
© Greg Nash

Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellRand's reversal advances Pompeo After Dems stood against Pompeo, Senate’s confirmation process needs a revamp Overnight Cybersecurity: Senators eye path forward on election security bill | Facebook isn't winning over privacy advocates | New hacks target health care MORE on Tuesday said he would allow a vote on legislation overhauling the nation’s surveillance programs, which could give him more leverage in the fight over the National Security Agency’s future.

The move means the Senate will vote this week on the USA Freedom Act — but it does not guarantee its passage.

While the bill was overwhelmingly approved in a 338-88 House vote last week and is backed by the White House and Speaker John BoehnerJohn Andrew BoehnerA warning to Ryan’s successor: The Speakership is no cakewalk With Ryan out, let’s blow up the process for selecting the next Speaker Race for Republican Speaker rare chance to unify party for election MORE (R-Ohio), McConnell (R-Ky.) and Senate Intelligence Committee Chairman Richard BurrRichard Mauze BurrSenators chart path forward on election security bill Overnight Cybersecurity: Staff changes upend White House cyber team | Trump sends cyber war strategy to Congress | CIA pick to get hearing in May | Malware hits Facebook accounts Senators express concerns over Haspel's 'destruction of evidence' MORE (R-N.C.) both oppose it.

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So do a number of other hawkish Senate Republicans who argue it would endanger national security by preventing the government from holding metadata collected from phone calls.

McConnell and GOP leaders expect this week’s vote to fail, which could give momentum to the Senate leader’s favored approach: a short-term extension of the Patriot Act provisions that authorize the NSA’s data collection.

“I certainly think we ought to allow a vote on the House-passed bill,” McConnell told reporters on Tuesday. “If there are not enough votes to pass that, then we need to look at an alternative.”

“What makes most sense is to give senators a chance to vote on the House bill, and if that fails — and a version of that did fail last fall — then the alternative would be a short extension while we work out the differences,” added Sen. John CornynJohn CornynRand's reversal advances Pompeo Joe Scarborough predicts Trump won't run in 2020 Republicans divided over legislation protecting Mueller MORE (Texas), the chamber’s No. 2 Republican.

If McConnell’s strategy is successful, it could cost supporters of the USA Freedom Act down the road. Once Congress approves an extension of the NSA’s surveillance programs, it could be easier to argue for additional extensions.

Top House lawmakers on both sides of the aisle have flatly rejected a “clean” extension of the Patriot Act provisions, even for a short period of time.

“I think when you get 338 [votes], we’re meeting somewhere in the middle,” House Majority Leader Kevin McCarthy (R-Calif.) said Monday. “When you can get Republicans and Democrats beyond [a] veto-proof [majority] ... I think that is a great bill for the Senate to take.”

But it remains unclear whether a majority of the House would oppose a stopgap bill if it is the only way to keep the NSA programs intact beyond June 1, when the current law expires.

During a press conference on Tuesday, Sen. Charles SchumerCharles (Chuck) Ellis SchumerCan Mueller be more honest than his colleagues? Throwing some cold water on all of the Korean summit optimism House Republicans push Mulvaney, Trump to rescind Gateway funds MORE (D-N.Y.) told McConnell to pay attention to BoehnerJohn Andrew BoehnerA warning to Ryan’s successor: The Speakership is no cakewalk With Ryan out, let’s blow up the process for selecting the next Speaker Race for Republican Speaker rare chance to unify party for election MORE, who earlier in the day said that it was “time for the Senate to act.”

“I hope that Mitch McConnell heeds Speaker Boehner’s words,” Schumer said.

Cornyn on Tuesday suggested that the House would find a way to renew the law.

“What usually happens when you get down to a deadline like that is people then reevaluate the circumstances and do the responsible thing,” he said. “And that’s what we should do is do the responsible thing, which is don’t let this important program expire.”

Congress is set to begin a weeklong Memorial Day recess at the end of the week. That means lawmakers would have to pass some kind of NSA legislation by Friday.

Senate backers of the USA Freedom Act have acknowledged they don’t currently have the 60 votes necessary to overcome a filibuster.

“I can’t count to 60 right now,” co-author Sen. Mike LeeMichael (Mike) Shumway LeeSenate confirms Trump’s pick to lead NASA Key senators warn Trump of North Korea effort on Syria Rep. Jordan: Action in Syria ‘should be debated in Congress’ MORE (R-Utah) said on C-SPAN’s “Newsmakers” over the weekend.

Last year, a similar version of the USA Freedom Act came two votes shy of overcoming a GOP-led filibuster shortly before Democrats lost control of the Senate. Opposition is likely to be stronger now, with Senate Republicans holding 54 seats.

McConnell is opposed by Lee and presidential hopeful Sen. Ted CruzRafael (Ted) Edward CruzAfter Dems stood against Pompeo, Senate’s confirmation process needs a revamp Cruz's Dem challenger slams Time piece praising Trump Race for Republican Speaker rare chance to unify party for election MORE (R-Texas), who have pledged to oppose any bill that renews the Patriot Act without changes, even for a short period of time.

A filibuster threat also looms from Sen. Rand PaulRandal (Rand) Howard PaulRand's reversal advances Pompeo Overnight Defense: Pompeo clears Senate panel, on track for confirmation | Retired officers oppose Haspel for CIA director | Iran, Syria on agenda for Macron visit After Dems stood against Pompeo, Senate’s confirmation process needs a revamp MORE (R-Ky.), another presidential candidate who could have a lot to gain by staging a high-profile floor fight against the Patriot Act. Paul opposes both an extension of the Patriot Act and the USA Freedom Act.

The Senate’s schedule is also a potential stumbling block. In addition to the Patriot Act bill, the chamber needs to pass a trade bill and renew highway funding before skipping town at the end of the week. If the House leaves Washington before the Senate finalizes a short-term extension, the lower chamber might not be able to take it up until June 1, hours after the NSA provisions have expired.

Assuming McConnell’s plan does work to perfection, it’s still unclear what the endgame might be.

Burr and Sen. Dianne FeinsteinDianne Emiel FeinsteinThis week: Senate barrels toward showdown over Pompeo Sunday Shows Preview: Emmanuel Macron talks ahead of state dinner CIA declassifies memo on nominee's handling of interrogation tapes MORE (Calif.), the ranking Democrat on the Senate Intelligence Committee, have said they are working on “backups” in case the USA Freedom Act doesn’t get the votes.

Feinstein’s plan would require phone companies to hold onto the records for a certain period of time, which would satisfy some lawmakers’ concerns but cause privacy advocates to rebel.

Burr’s, meanwhile, is expected to extend the period of time allotted for the switch to a new system. The USA Freedom Act gives the NSA six months to end its bulk phone records program and switch to the new method, but some critics have worried that is not long enough to prove it will work.

Even if it came to that, it’s almost a sure bet that the House wouldn’t act on those plans until after it returned from next week’s recess, meaning the Patriot Act provisions would expire, at least for a short while.

Missing that deadline would “pose a risk to our national security,” White House press secretary Josh Earnest said on Tuesday. “This is something the president is concerned about.

“The only option that is really left for the United States Senate, if they are genuinely concerned about keeping the authorities that allow national security professionals to keep us safe, is to pass the USA Freedom Act,” Earnest added. 

 — Scott Wong and Jordan Fabian contributed.

This story was updated at 9:00 p.m.