A path forward on how Congress will reform or reauthorize the National Security Agency's bulk data collection program may come down to which chamber acts last before the provision expires on June 1.
It is a race to the finish line that, in some ways, pits the top Republican leaders of both chambers against each other.
"The House had an overwhelmingly large vote for the USA Freedom Act," House Speaker John Boehner, R-Ohio told reporters on Tuesday. "It's time for the Senate to act."
Last week, the House overwhelmingly passed the USA Freedom Act, a measure that would end the NSA's bulk collection of phone records and replace it with a system that would search phone data held by the phone companies themselves on a case-by-case basis. The legislation passed by a 338-to-88 vote signalling a bipartisan, veto-proof majority.
The measure also has the support of the White House.
This leaves the Senate in a precarious position.
The House bill is now in the Senate. Senate Majority Leader Mitch McConnell, R-Ky., who wants a clean reauthorization of the PATRIOT Act, said on Tuesday he will allow a vote on the House-passed measure.
The announcement comes after House Republican leadership publicly called out McConnell to allow a vote on the bill. The House measure faces an uncertain future in the Senate where opposition to the bill stems from concerns it would weaken the government's ability to thwart terror plots.
Some Democrats were also critical of McConnell.
"Leader McConnell is alone on an island staunchly holding on to a five year extension that has no chance of becoming law," said Sen. Chuck Schumer, a New York Democrat.
Both the House and Senate are scheduled to leave town at the end of the week, and while the House-passed bill has considerable opposition in the Senate, some say it may be the only choice they have.
"You've got one of two choices: You either pass the House bill or pass nothing because you don't have time to do anything other than that," Sen Patrick Leahy, a Vermont Democrat, who is the author of a similar piece of legislation in the Senate, told reporters Monday.
The House measure would take the storage of telephony metadata authorized under the PATRIOT Act away from the government, and instead rely on telecom companies to hold the data, which could then be subpoenaed by the government.
Bulk data collection by the NSA has been a very sensitive issue up on the Hill ever since 2013 when former National Security Agency contractor Edward Snowden leaked thousands of documents including the revelation that the agency had been secretly collecting data about millions of Americans' phone calls.
Those uncomfortable with the NSA's bulk data collection practices cross the spectrum politically. It has produced such strange bedfellows as Sen.Ted Cruz, R-Texas and Leahy.
House Majority Leader Kevin McCarthy, R-Calif., told reporters Monday that because the House had passed their bill with such strong support they had "no intention to waiting around" past Thursday, when they are scheduled to leave town for the month.
"If we have a bill with 338 votes why would we need to wait around?" McCarthy asked reporters.
That time crunch has complicated Senate consideration of any extension of the provisions that are set to expire that are part of the Foreign Intelligence Surveillance Act — which prescribes how foreign intelligence is gathered.
The Senate which is currently working through legislation granting the president so-called "fast-track' authority to negotiate on an up or down congressional vote sans the addition of amendments a sweeping, 12-nation trade accord — a process that could potentially be slow-walked until the weekend by opponents of the measure.
McConnell said Monday the Senate would not leave town until the chamber voted on "fast track authority". Congress must also address funding for federal highway and transit programs which also expires at the end of the month.
But Senate Intelligence Committee Chairman Richard Burr, R-N.C., said they hope to find a compromise to extend the NSA bulk data collection program by week's end. Burr, along with McConnell, has introduced a clean five-year extension of the current data collection program, and calls the House passed bill "the same as expiration" of the current government program.
"Everybody needs to realize that this act expires on June 1st, the House is back in session on June 1st, so it's not like they're going to jam us on Thursday, leave town and make us believe that we can't send them something else, we can," Burr told reporters.
One of the biggest concerns for those who are either on the fence or opposed to the USA Freedom Act is whether they have any assurances that telecom companies will hold onto the data long enough for the government to be able to utilize it. Currently, the USA Freedom Act would not mandate that telecom companies hold onto that data for any specified period of time, and it's unclear if the government would know how long that data will be held before being deleted.
"There are some of us that are concerned as to whether the telecoms will hold the data for at least two years, and that is an iffy thing," Senate Intelligence Committee Co-Chair Sen Dianne Feinstein, D-Calif., told reporters adding that she would support the USA Freedom Act.
Sens Rand Paul, R-Ky. and Ron Wyden, D-Ore., have both threatened to filibuster any attempt to pass a clean extension of the NSA bulk data collection program without reforms. Sen. Paul, who is seeking the Republican nomination for president, famously filibustered the nomination of John Brennan for CIA director for 13 hours in 2013 to express his opposition to the domestic use of drones.
"We've had a year, actually we've had three years, we've known this date was coming for three years, we ought to have full and open debate with an amendment process," Sen. Paul told reporters Monday of any attempt to reform or reauthorize the data collection program, "I will filibuster unless there's an open debate process and debate in amendments allowed."
