Republicans in showdown over NSA spy program

Greg Nash

Sen. Mitch McConnellMitch McConnellSenate Dems: Add Flint aid to spending deal Zika funding fight throws wrench in health lobbyists’ plans Shutdown risk grows over Flint 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 BoehnerRepublican Study Committee elders back Harris for chairman Dems to GOP: Help us fix ObamaCare The disorderly order of presidential succession MORE (R-Ohio), McConnell (R-Ky.) and Senate Intelligence Committee Chairman Richard BurrRichard BurrThe Trail 2016: Fight night Poll finds races for president, Senate tight in North Carolina Senate rivals gear up for debates 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 CornynSenate poised to override Obama veto Senate to vote on 9/11 veto override Wednesday This week: Shutdown deadline looms over Congress 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 SchumerOvernight Tech: Tech pushes for debate spotlight | Disney may bid for Twitter | Dem seeks Yahoo probe Saudis hire lobbyists amid 9/11 fight Consumer bureau remains partisan target after Wells Fargo settlement MORE (D-N.Y.) told McConnell to pay attention to BoehnerJohn BoehnerRepublican Study Committee elders back Harris for chairman Dems to GOP: Help us fix ObamaCare The disorderly order of presidential succession 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 LeeMike LeeShutdown risk grows over Flint Conservative group presses GOP to vote against spending bill Trump accepts Cruz endorsement after saying he wouldn't 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 CruzTed CruzThe Trail 2016: Fight night Google backs Obama's internet transition plan Steve King asks: Will Clinton be ‘on her meds or off her meds’ for debate? 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 PaulRand PaulConservative group presses GOP to vote against spending bill Saudi skeptics gain strength in Congress Senators challenge status quo on Saudi arms sales 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 FeinsteinThis week: Shutdown deadline looms over Congress Week ahead: Election hacks, Yahoo breach in the spotlight Overnight Tech: Pressure builds ahead of TV box vote | Intel Dems warn about Russian election hacks | Spending bill doesn't include internet measure 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.