While technically Sen. Rand Paul's (R-Ky.) stand against the NSA on Wednesday night wasn't a filibuster, any time a member of Congress talks for over ten hours without a bathroom break, it's close enough in our book.
Paul's move came just as the debate around NSA reform started heating up in the Senate. Though senators were scheduled to leave Thursday, it now looks like they may be in D.C. well into the holiday weekend, deciding whether to extend, reform, or simply put to rest provisions of the Patriot Act set to expire on June 1 (more on that here).
So, what is the effect of Sen. Paul's "filibuster" and what does it mean for the surveillance debate?
Here are the main takeaways.
- Pressure is mounting from all sides on Congress to reform the Patriot Act
According to an ACLU poll released this week, Americans support reforming or sunsetting the Patriot Act by almost a two to one margin.
Two demographic groups that most support reform: millennials and independent men. Considering that, it's not a surprise that Senator Paul's stand did not go unnoticed. Twitter abounded with calls to #StandForRand.
Senator Paul was also joined on the Senate floor by Democrats and Republicans, mirroring the bipartisan coalition that has formed around the issue.
- Unless everyone can agree, the Senate is likely working into the weekend
Under Senate rules, typically the Senate leader (in this case, Sen. Mitch McConnell) files a motion to proceed, which then needs to "ripen" in order to allow a bill to move forward. Unless the speaker can get the consent of all senators to immediately debate the bill, it typically takes 30 hours for a bill to ripen.
One of two bills would likely need to move in the Senate in order to beat the sunset – either the USA Freedom Act, which already passed the House, or a two-month straight reauthorization of the expiring provisions of the Patriot Act, which has not yet cleared the House.
By extending debate on the floor, Sen. Paul ensured that the earliest that Sen. McConnell could move to proceed on either was Thursday morning. In other words, absent carefully orchestrated procedural gymnastics (such as attaching the measures to another bill), the Senate will not debate either extending or reforming the Patriot Act until Saturday.
As of late Thursday, Sen. McConnell had not given a clear indication of whether he intends to bring one or both bills to the floor. If members who have already indicated that they support NSA reform stand strong and oppose any reauthorization, they easily have the 41 votes needed to jam any reauthorization bill, leaving sunset or reform as the only option.
- Gridlock could equal at least temporary sunset
Members of the House are set to leave Washington, D.C., to begin the Memorial Day recess (think nap time and monkey bars) this week. Unless they come back early, the House will not return until June 1.
And, so, a game of chicken begins.
As you might remember, the USA Freedom Act — the modest reform bill passed by the House — extends provisions of the Patriot Act that are set to expire on June 1 with some modifications. House leadership has said that they will not take up a bill that simply seeks a straight extension of the Patriot Act provisions.
With the House gone, if the Senate passes a new reform bill or a straight reauthorization of the Patriot Act, it would likely not be soon enough to stop the provisions from sunsetting first. That technically happens at midnight on May 31, 2015. Unless the House decides to come back early or essentially has unanimous consent to pass a bill during a pro forma session.
- A sunset could flip the NSA debate on its head.
After a sunset, the equation flips.
With a sunset, Congress' reform bill won't just modify provisions of the Patriot Act. It would resurrect pieces of the Patriot Act (i.e. parts of Section 215) that have died. Section 215 is the provision of the law that has been used illegally to collect call records of everyone in America, thousands of financial records, and other electronic records.
Proactively authorizing that kind of behavior again should and will be a tough pill for many members of Congress to swallow.
And, it will be an even harder pill for the public to swallow.
It will be particularly difficult in light of the Justice Department report released earlier on Thursday, which exposed that the FBI is using Section 215 to collect huge volumes of information, including metadata and electronic records, about innocent people — and that despite all of this collection, the FBI is unable to point to any case in which the information it obtained turned out to be crucial to an investigation.
If Section 215 sunsets, pro-reform advocates will have more leverage to push for stronger surveillance reforms than those currently on the table, because the new status quo will tip more in favor of those who oppose mass surveillance under the Patriot Act. However, they will have to strongly push back against fearmongering from anti-reformists and proposals that are weaker than those currently being considered.
Anyone excited yet?