With most lawmakers out of town and controversial Patriot Act provisions set to expire in just days, national security hawks in the House and Senate hope Congress can magically pull an agreement out of a hat.
That possibility — a quick and dirty patch, cobbled together and quietly passed during recess, despite earlier assurances from House leaders that wouldn’t happen — had some skeptics on the other side of the issue concerned enough to stick close to the Capitol this week.
“We’re just keeping an eye on the House,” Rep. Justin Amash told reporters repeatedly as he exited the Capitol after attending a pro forma session Tuesday afternoon.
“Promises have been made in the past,” he said, “and we’ve seen promises broken.”
The defiant Michigan Republican called the situation with the renewal “highly unpredictable,” and he said any reauthorization of National Security Agency’s phone data collection program would be more difficult if those authorities were to lapse.
“There are potentially hundreds of members of Congress who would be extremely reluctant to renew any authorities after they’ve expired,” Amash said, “so I just think it adds more leverage to the pro-privacy side.”
Reminder: The so-called USA Freedom Act overwhelmingly passed the House on May 13 by a vote of 338-88. That bill, while championed by proponents as an end to the government’s bulk collection of phone metadata, would preserve the ability of the NSA to order a telephone company to turn over large amounts of phone records. It was concerns like that which led Amash, who was an original co-sponsor of the bill, to turn on the measure.
Still, there was plenty of support for the bill in the House. It was in the Senate — amid concerns from privacy advocates like Sen. Rand Paul, R-Ky., and from lawmakers like Senate Majority Leader Mitch McConnell, who believed the bill would help terrorists — that the Freedom Act ran into problems.
Before the Senate skipped town early Saturday, McConnell put the House bill up for a vote, even though he’s seemed steadfastly opposed to the legislation. It fell three short of the necessary 60 votes on a procedural motion. McConnell then tried to pass a clean two-month extension of the existing program, which would have put the House in the spot of either accepting such a bill during a recess — as Amash remains worried will happen — or allowing provisions to lapse until the House returns Monday.
That bill couldn’t muster the requisite votes either, with only 45 senators voting “aye” on the proposal McConnell favored. Finally, the Kentucky Republican tried a series of smaller-term unanimous consent agreements — first one week, then five days, then one day. Paul and Sen. Martin Heinrich, D-N.M., objected.
With no clear resolution in sight, McConnell gave up and announced that the Senate would be back in session on Sunday, May 31 — with just hours to act before the Patriot Act provisions expire. “One more opportunity to act responsibly,” McConnell said.
If the House and Senate were somehow able to come up with an agreement this week, those May 31 votes would be the first Sunday votes in the Senate since the fiscal cliff standoff at the end of 2012. But such a resolution remains in doubt.
House Intelligence Committee Committee Chairman Devin Nunes, R-Calif., told the New York Times that some phone calls and staff meetings could be enough to mend the differences between the House-passed bill and legislation that could rally the requisite 60 votes in the Senate.
Amash, however, dismissed that report on Tuesday as “propaganda from the Intel Committee.”
“I know some of the parties involved with drafting the Freedom Act, and they’re not aware of any negotiations,” Amash said, refusing to name names.
But don’t doubt Amash just because he won’t say where he’s getting his information.
A House GOP leadership aide insisted to CQ Roll Call on Tuesday that there were no ongoing negotiations between the chambers regarding a new bill.
“The USA Freedom Act gives the intelligence community the tools it needs to keep America safe and strengthens our ability to stop terrorist attacks on U.S. soil,” the aide said in an emailed statement to CQ Roll Call. “The Senate should pass the House bill, and do so before this program goes dark.”
Of course, House leadership has also been clear that they don’t plan to extend Patriot Act provisions by unanimous consent or any other procedural maneuver that could rankle the rank and file. And yet Amash doesn’t trust the word from leaders enough to go back to his district.
“Trust, but verify,” Amash tweeted Tuesday.
Amash claimed last Thursday that all but one of the 88 votes against the House Freedom Act bill were because it didn’t protect privacy enough. “So if there’s any compromise, it needs to be in the direction of more privacy protections, not less,” Amash said. “That’s where the votes are. You gain votes by extending it in that direction, not by going the other way.”
And that sort of vote calculus is what the Senate is trying to figure out.
On Tuesday, according to The Associated Press, McConnell told a group at a Rotary Club in Elizabethtown, Ky., that Congress needs to “figure some way out of this.”
He noted that the House overwhelmingly passed its bill, which includes changes to existing programs. “So that makes it pretty challenging to extend the law as it is,” McConnell said, who added that he and his state’s junior senator, Rand Paul, “just have a difference of opinion” on the NSA issue.
Meanwhile, Sen. Paul sent a fundraising email to supporters Tuesday telling them he wouldn’t be backing down on the NSA bill. “I’m not going to compromise,” Paul wrote.
But compromise is exactly what many senators called for as they left town Saturday.
“We should be figuring this out now,” Sen. Benjamin L. Cardin, D-Md., said, “and we should not be leaving this program in that stage going up to the deadline. Congress has a responsibility to find a way to continue this program.”
Majority Whip John Cornyn noted that the Senate would be back Sunday, and, “in the meantime,” the Texas Republican said he was hopeful there’d be some discussion on how to “get out of the ditch.”
And Senate Armed Services Chairman John McCain said the vote on the Freedom Act showed that the House-passed bill couldn’t pass in the Senate. “So what really needs to happen is that all parties sit down and negotiate, and that’s the way the Senate and the House should operate,” McCain said.
“You can argue whether we should be doing the megadata thing, but you can’t argue that it’s a good idea to shut down the whole operation at the NSA,” McCain said.
The White House has been emphatic that it wants to avoid Patriot Act surveillance authorities from going dark. But the administration has also been clear that it doesn’t have the authority to issue an executive order to continue the programs. “I strongly urge the Senate to work through this recess and make sure that they identify a way to get this done,” President Barack Obama said Tuesday.
Niels Lesniewski, Emma Dumain, and Steven T. Dennis contributed to this report.
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