This article is from the archive of our partner National Journal

The Senate, fresh off a long, dramatic night, is well into a long, dramatic day. And what's happening now could very well stretch into the weekend and determine the fate of the NSA's most controversial surveillance program.

Senate Majority Leader Mitch McConnell on Thursday set up procedural votes on two opposing bills to deal with the expiring spy provisions of the Patriot Act, meaning the upper chamber will likely be stuck in town this weekend to resolve a standoff over the post-9/11 law.

McConnell moved to end debate on both the House-passed USA Freedom Act, which would end the National Security Agency's bulk collection of U.S. call records, and a two-month "clean" extension to the Patriot Act's provisions, which he and other Republican defense hawks favor.

The decision follows a 10-and-a-half-hour self-declared "filibuster" by Sen. Rand Paul that railed against the NSA's sweeping surveillance powers. The Senate is staring down a June 1 expiration of three Patriot Act provisions, including Section 215, which the NSA uses to justify its bulk collection regime.

Sources close to House Speaker John Boehner said the Speaker and his staff are mystified by the way McConnell appears to have backed himself into a corner, and they cannot figure out his end game. As the House recesses until June, members and aides were furious at McConnell's dithering on a bill that easily passed their chamber.

It now appears that the Senate will hold rare weekend votes, unless somehow unanimous consent can be gained to move ahead more quickly. Absent that, the earliest either measure could advance would be on Saturday.

McConnell firmly laid out his vision for votes on the three big issues in front of the Senate in a short floor speech Thursday night.

"I want to remind everybody we're going to finish this [trade] bill before we leave," he said. "We're going to deal with FISA and we're going to deal with highways."

All of that, he said, can get done before the Senate skips town. "There's a path forward if people want to take it that could complete all of this work at a reasonable time—probably sometime tomorrow—or we can make it difficult, but the end won't change," he continued. "And so I would just encourage at least some level of cooperation here, because we're doing TPA, we're doing FISA, and we're doing highways."

In the meantime, the Obama administration said the NSA must begin winding down its dragnet program on Friday so operations are shut down by the expiration date. The White House on Thursday called on the Senate to pass the House bill.

Here's how each of the options are unfolding on Capitol Hill. We'll be updating this post as the day goes on.

Pass the House-approved USA Freedom Act

McConnell earlier this week said he would bring up the USA Freedom Act for a vote, which overwhelmingly passed the House last week. But the majority leader and his top deputies have said they do not think it has the 60 votes needed to advance.

On Thursday, however, the Freedom Act appeared to be gaining some momentum.

"I will vote for cloture on USA Freedom, and I think that's where most of the votes are now," said Republican Sen. Jeff Flake said, who voted down an earlier iteration of the measure last November.

Sen. Bill Nelson, the only known Democratic holdout on the USA Freedom Act, also said he would support plans to advance the bill.

While the White House's main objective in recent weeks has been the passage of the trade bill, the administration appears to be reaching out on the USA Freedom Act. Senior administration officials met with a small bipartisan group of senators in the situation room Thursday as part of what a White House aide described as a "regular Congressional engagement on the USA Freedom Act" to discuss the bill and related national security issues.

Sen. Joe Manchin, a West Virginia Democrat, attended the White House briefing. He said six or seven senators were present and the makeup was split evenly between parties.

When asked if Paul—who has said he opposes the Freedom Act because it does not go far enough—attended, Manchin replied: "I think they may have given up on him."

Paul wants to strengthen the Freedom Act with a lengthy list of amendments related to foreign surveillance, transparency and oversight of the FISA Court. His office issued a press release Thursday afternoon listing all the amendments the Kentucky Republican planned to offer during the Freedom Act debate. But those amendments may not actually earn any consideration, unless the Senate is willing to consent to their submission.

Regardless of Paul's theatrics, it is unclear if the Freedom Act has the magical 60 votes right now. Burr viewed the White House meeting as an attempt to win some last minute support.

"I have never known the White House to invite anybody that they weren't trying to influence or sure up their vote on something," Burr said.

And only passage of an unchanged Freedom Act would ensure that lawmakers can stave off an expiration of the programs, as the House is due to leave town Thursday for Memorial Day recess and will not return until next month.

White House Press Secretary John Earnest said Thursday afternoon that the Senate should pass the "reasonable compromise" put forth by the House.

"If some Senate Republicans believe, as the president does, that we must be vigilant in the face of terrorist threats, it would be irresponsible to let these authorities lapse, even for a few days," he said.

Pass a short-term extension

The Senate could pass a short-term extension—whether two weeks or two months—of the Patriot Act authorities. McConnell has invoked cloture on a two-month extension, but there have been rumblings that the upper chamber could amend that to a shorter duration of maybe a couple of weeks in an effort to make it more palatable to the House. Such an effort would be procedurally tricky, and would require the out-of-townHouse to agree to it next week under unanimous consent during its pro forma session.

Senators of both parties continue to doubt whether this option has enough support.

Sen. John Thune, the Senate's No. 3 Republican, said Thursday he was unsure if a two-month extension was possible.

"I don't think we have really tested the waters on that yet," he said. "They are all close. Everything is a nail-biter these days."

Even members of McConnell's own party are threatening to block a short-term extension. Sen. Dean Heller said Thursday he would hold up any continuation of the Patriot Act.

"I hope we have the 60 votes on the USA Freedom Act," he said. "The House is going home. I talked with [House Majority Leader Kevin McCarthy] this morning and I agree with everything they are doing. Go home and put the pressure on us and let's vote on a reasonable bill."

Senate Intelligence Committee Chairman Richard Burr acknowledged that it was unlikely either the USA Freedom Act or a two-month extension had the votes at this point.This leaves, he said, one option: pass a very, very short-term extension to catapult Congress into a compromise.

Burr said that if both the Freedom Act and two-month extension fail, he's open to negotiating a middle ground, but that process will take time and he'll need Democrats and Republicans to give leaders a matter of days or weeks.

"I think it is safe to say this issue is too important to suggest to you that we could bring something up this weekend, debate it, vote on it, get out of here," Burr told National Journal of any potential compromise bill. "So I think the contingency plan would be can Republicans and Democrats in the Senate agree on an appropriate, extension period? It certainly wouldn't be two months where the Senate has an opportunity to come back and do what the Senate was designed to do and that is get on the floor and debate the issue, amend the bill and come out with a bipartisan piece of legislation."

Republicans discussed options to move forward during lunch on Thursday. A key concern continues to be how and for how long Congress can require telecom companies to hold onto customers' data in case the NSA needs to access it and how long the NSA would need to convert their program and assure the new strategy would work.

"In the meantime we would like to keep the program in place until we are assured this is going to work." Sen. Dan Coats, R-Ind., said.

Burr said earlier this week that any alternative he put forward would not require telecom companies to keep customer data—which many tech companies and privacy advocates have long said is a "poison pill" that would cause them to oppose the Freedom Act. "I'm not trying to apply mandatory retention to telecoms," he said. "I think most telecoms would tell you they're out of the business, if that's the case, or [USA Freedom Act sponsor Patrick] Leahy would have mandatory in his bill."

A short-term extension could be most tricky in the House, though. While Speaker John Boehner kept the door open to it Thursday, saying if the Senate acts "we'll certainly look at what they do and make a decision about how to proceed," other members of his caucus would make its passage very unlikely before hitting the deadline.

Boehner, after throwing barbs at his usually sympatico Senate counterpart during an afternoon press conference, let his members return to their districts with no plans of returning until after the program is scheduled to lapse. The House whip met in the afternoon but did not discuss the possibility of a short-term extension, according to sources in the meeting.

Meanwhile, critics of NSA snooping techniques said they have been assured that GOP leaders will not sneak a short-term reauthorization through the chamber during recess, and a high-ranking leadership aide echoed the sentiment that they have no plans to extend the existing program for even a day.

House Minority Leader Nancy Pelosi, for her part, was highly skeptical of a two-month deal Thursday. "What are two months going to get us?" she said. "What is the point of going to two months?"

On Thursday afternoon, a group of six House lawmakers sent a letter to Boehner and Pelosi, warning that they will not extend bulk collection. "We will not vote to reauthorize the program, even for a short period of time," said the letter, which was signed by Reps. Zoe Lofgren, Justin Amash, Anna Eshoo, Thomas Massie, Jared Polis, and Ted Poe. Of that group, only Lofgren and Eshoo voted for the USA Freedom Act when it passed the House last week.

Five of the six signatories of today's letter—all but Eshoo—also put their name on a letter 60 House members sent to the Senate Wednesday, urging senators to make changes to the USA Freedom Act that the House passed by adding additional reforms.

Given the Senate's tight timeline and many members' opposition to the USA Freedom Act, senators are unlikely to add any further reforms to the legislation.

Patriot Act expiration

If the Senate doesn't manage to pass the USA Freedom Act by the end of the week, it is increasingly likely that the sections of the Patriot Act the NSA uses to sanction bulk surveillance will lapse.

As National Journal first reported Wednesday, the Justice Department said in a memo that circulated on Capitol Hill that it will need to begin winding down the NSA's bulk collection program this Friday to ensure it is shut off completely by June 1, the day the Patriot Act sections are due to sunset, adding pressure on the Senate to act fast.

This has been the goal of some lawmakers throughout the debate—most notably Sen. Rand Paul, who spoke for 10-and-a-half hours on the Senate floor Wednesday about the need to end the programs—but others say a sunset could be disastrous for national security.

"The threat environment is only increasing," said Sen. Tom Cotton earlier this week. "We shouldn't in my opinion take away a tool that our national security professionals to keep us safe."

"I hope that we can find a way to keep it from lapsing," Sen. John McCain said Wednesday. "I don't think anybody wants that to happen completely."

Sen. Patrick Leahy, a lead sponsor of the USA Freedom Act, said Tuesday that his colleagues' warnings of what would happen if NSA surveillance ended briefly were overblown. "If these authorities expire, are we suddenly going to be engulfed in ISIL taking over Washington, D.C.?" Leahy said. "Hm! Some would like us to think that. That's not going to happen. If people are concerned about them expiring, pass the bill."

Sen. Dianne Feinstein, an outspoken defender of the NSA surveillance who supports the USA Freedom Act, said Thursday a temporary lapse in spying powers would not be a catastrophe. "I don't think it's problematic if it's a day or two, or for a short period of time," she said.

FBI Director James Comey on Wednesday reiterated the administration's view that Section 215 of the Patriot is critical to national security in ways far beyond the NSA phone dragnet, which was exposed publicly two years ago by former intelligence contractor Edward Snowden.

"There are critical tools to the FBI that are going to sunset on June 1 that people do not talk about," Comey said during a discussion at Georgetown University Law Center. "We go to the [Foreign Intelligence Surveillance] Court in a particular case, and get particular records that are important to an intelligence investigation or a counterterrorism investigation. If we lose that authority, which I don't think is controversial with folks, that is a big problem."

Pass a long-term extension

Originally, McConnell promoted a clean renewal of the Patriot Act provisions until December 2020 . But that plan was quickly rebuffed by Democrats and libertarian-leaning Republicans. Now, that opposition appears to have pushed this option off the table.

Other alternatives?

Sen. Richard Burr is planning on releasing a plan Friday that he believes is a "win-win." The plan would give the NSA a two-year transition period from its current program to one where phone companies would keep phone data themselves. But Burr hasn't talked to Democrats, or the White House, about his plan, and is just "making an assumption" that they'll gno along.

Feinstein and Burr had said earlier Thursday they are preparing alternatives in case the Senate is not able to pass the USA Freedom Act. But the two seemed at odds over how to approach what Feinstein has called a "backup" plan. "I don't agree with what he—what I know of thus far," Feinstein said Thursday when asked about Burr's alternative. "I do have a fallback bill that I have presented him. I'm not sure he liked it. But I do have co-sponsors."

One possible area of disagreement between the two senators is over whether or not to require telecom companies to keep customer data. Burr has said any bill he offered wouldn't not include such a mandate, but Feinstein said Thursday that her bill would require companies to hang onto customer data for two years.

Otherwise, she said, her bill is very similar to the USA Freedom Act.

This story has been updated with more information.


Daniel Newhauser and S.V. Dáte contributed to this article

This article is from the archive of our partner National Journal.

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