Love him or hate him, Senate Majority Leader Mitch McConnell (R-Ky.) knows a thing or two about operating his chamber. With this in mind, when McConnell unveiled his pre-Memorial Day plan last week, it was tempting to give him the benefit of the doubt.
At this point, however, no one's thinking that anymore. The Republican leader's plan failed and the policy consequences are likely to be significant.
It's worth appreciating what McConnell attempted to do. First, he'd invest a big chunk of Senate time on "fast-track" authority, even though there were was no pending deadline. Second, McConnell would, towards the end of the week, bring the "USA Freedom Act," the House-approved compromise on NSA surveillance, to the floor. The Senate Majority Leader opposed the bill and expected to fail.
And third, with time running out and the policy poised to expire, members would have no choice but to approve a temporary extension of the status quo.
The first two-thirds of the plan went fairly well: the Senate passed trade-promotion authority and filibustered the USA Freedom Act, just as McConnell hoped. But his plans for a temporary extension failed, too -- McConnell asked for a two-month reprieve, then a week, then a few days, then one day. His ostensible ally, Sen. Rand Paul (R-Ky.) responded to every request with the same two words: "I object."
With existing policy set to expire on June 1, and with lawmakers nowhere near Capitol Hill, is it possible Congress will simply let elements of the Patriot Act expire altogether. The short answer is, yes. The less-short answer is, members haven't given up just yet. The New York Times reported
Senior lawmakers are scrambling this week in rare recess negotiations to agree on a face-saving change to legislation that would rein in the National Security Agency's dragnet of phone records, with time running out on some of the government's domestic surveillance authority. Representative Devin Nunes, Republican of California and chairman of the House Intelligence Committee, said a series of phone calls and staff meetings over the weeklong Memorial Day break should be enough to reach agreement on changes to the USA Freedom Act. Three senators need to be won over for the Senate to pass the USA Freedom Act, which has already been approved by the House and would change the post-Sept. 11 Patriot Act's provision that the N.S.A. has used to sweep up phone records in bulk.
That's not an outrageous goal. The House bill had 57 votes in the Senate, which is obviously a majority, but three short of breaking a filibuster.
The Obama administration is weighing what the looming expiration of three counterterrorism laws -- including the provision that has been cited to allow the National Security Agency to vacuum up logs of Americans' phone calls -- would mean for future operations, even as officials say the "wind-down process" for the bulk calling data program has already begun. A senior American intelligence official said Sunday that the administration had begun assessing what the rules would be for analysts to retrieve five years of Americans' calling data previously acquired under the bulk phone logs program, if Congress fails to act by June 1 and the ability to collect newly created records is lost. Separately, officials are examining whether to invoke a so-called grandfather clause for the three laws that would permit the expiring legal authority to continue after next Monday for investigations already underway.
Keep in mind, a senior administration official said Saturday that the "wind-down process has begun
" on the surveillance program. What's more, the administration "did not file an application with the Foreign Intelligence Surveillance Court on Friday to continue collecting the data."
The Senate was originally scheduled to return to work on Monday, but in the hopes of finding some kind of solution, members are now expected to reconvene on Sunday, May 31. If they somehow manage to pass something -- your guess is as good as mine what such a bill might look like -- that would leave the House with just one day to act.