The Senate did something remarkable in the early hours of Saturday morning; they defeated the politics of fear and
defeated Mitch McConnell by refusing to go along with his plan to renew the Patriot Act's dragnet surveillance and to put the program in serious jeopardy of expiring at the end of this week. McConnell announced he'll call the Senate back a day early, on Sunday, to try once again to pass an extension of some sort before the law expires at midnight. At this point, however, his options are limited and the House
holds almost all the cards.
If negotiators accept minor changes to the House bill, it will mark a significant retreat for Senator Mitch McConnell of Kentucky, the majority leader, and Senator Richard M. Burr of North Carolina, the chairman of the Senate Intelligence Committee. The two men have said phone companies, which would collect the data instead of the N.S.A. under the USA Freedom Act, are not equipped to handle the task.
Even face-saving changes will be difficult. Representative Jerrold Nadler, Democrat of New York and one of the authors of the House bill, said the demands of Senate Republicans were “a lot of nonsense.” Democrats and many libertarian-minded Republicans would rather allow any eavesdropping authority to lapse than to give in.
The House
has compromised, watering down what was a very strong USA Freedom Act from last year to one that they had hoped would have a better reception in the Senate. McConnell got in the way of that, with his belligerent insistence that the Patriot Act remain unchanged, despite the fact that the House, and a federal court, have made it clear that's not going to happen. McConnell thought he could bully his way through, and failed. Spectacularly.
His options now are perhaps even more limited than they were before Saturday. Senators have demonstrated that they aren't going to mindlessly vote to "keep us safe" when doing so is in clear violation of the law, and potentially the constitution. That hasn't stopped some hawks, like Sen. Dianne Feinstein (D-CA) from trying to exploit the situation by introducing pro-surveillance "compromises," but given the massive loss the pro-surveillance side was dealt Saturday, the privacy caucus is buoyed and the House's position strengthened. There isn't going to be any incentive for the reformers in the Senate to make this easy for McConnell. And that's just his Senate problem.
The House spent a long time crafting a bill that could draw enough bipartisan support to pass, and it did overwhelmingly. They might not really be in the mood to make changes to it just for McConnell to save face. As Rep. Adam Schiff (D-CA), the ranking Democrat on the House Intelligence Committee, points out, "[i]f you go and monkey around with the USA Freedom Act now, you will definitely have a lapse in capabilities. […] That seems patently unnecessary." If it happens, it's all McConnell's fault.
