Republican divisions on Capitol Hill over the PATRIOT Act deepened Tuesday as Senate Majority Leader Mitch McConnell privately made his case against a popular House bill that would end the National Security Agency’s bulk data collection program.

McConnell said he plans to put the House-passed USA Freedom Act on the Senate floor later this week — a move that could show it can’t pass the Senate. But in a closed-door party lunch Tuesday, McConnell made clear his preference for a two-month extension of the current law. And to bolster his case against the House measure, the GOP leadership invited Michael Mukasey to meet with Senate Republicans, and the former attorney general argued in favor of keeping the PATRIOT Act provisions intact.


Still, top House Republicans insist their bill is the only option for the Senate, with the House set to leave town on Thursday, and Speaker John Boehner (R-Ohio) giving no indication Tuesday that he is willing to bail out Senate Republicans with a short-term lifeline for the expiring PATRIOT Act provisions.

“We couldn’t pass anything like that through the House,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said Tuesday of a two-month extension. “We had a huge vote for [the USA Freedom Act] and we would not have the votes for an extension. The Senate needs to take the House bill.”

But top senators said it won’t be that easy. South Dakota Sen. John Thune, the third-ranking Republican, said of the House legislation: “If it doesn’t have 60, I think it will demonstrate to the House that we’re not going to have the capacity to move their version.”

The collision between the two GOP-led chambers paints a shaky future for the Bush-era national security law’s key provisions, which are used to justify the bulk collection programs first revealed by former NSA contractor Edward Snowden. The debate over ending the controversial bulk collection methods gained momentum in recent weeks as the Obama administration endorsed the House proposal and a federal court decision earlier this month ruled that the NSA phone records program is illegal.

But concerned Senate Republicans are now pumping the brakes while the debate over the PATRIOT Act further exposes a rift within the GOP between its hawkish and libertarian wings.

In an example of the internal party warfare, Sen. Mike Lee, a libertarian Republican from Utah, came to the Senate floor Tuesday to try to force a vote on the House-passed bill. Standing in the way was hawkish Sen. Tom Cotton (R-Ark.), who’s been organizing briefings for Republicans aimed at pushing them to support a straight extension of the PATRIOT Act. Cotton blocked Lee’s attempt, leaving the immediate future of the surveillance program hanging in the balance.

Senate Republicans are increasingly raising concerns about the House measure and say they need more time to be assured that the USA Freedom Act — which passed the House with 338 votes last week — actually would work. The House bill would end the NSA’s bulk collection program and call on phone companies to retain the data. Investigators then could later tap the information in smaller amounts for terrorism probes.

“We do not want the program to become diminished — or lost — until we know that we have a way to successfully access that information if it’s held by the telephone companies,” said Sen. Dan Coats (R-Ind.). Making the case for a short-term extension, Coats said: “That’s why we’d like to buy some time to determine we could actually accomplish that by keeping current authorities in place.”

On Tuesday, McConnell signaled that he’s skeptical the House bill could clear his chamber.

“If there aren’t enough votes to pass that, we’ll have to look at an alternative,” McConnell said, who insisted that the Senate will not let the program expire.

At Tuesday’s party lunch, McConnell indicated that he prefers a two-month extension of the PATRIOT Act and laid out why he opposes the House bill. It was a rather unusual move for McConnell, who typically reserves his judgment on issues that sharply divide his conference. Meanwhile, Mukasey argued that the USA Freedom Act would have virtually the same effect as letting the law expire at month’s end.

While much of the lunch debate was about trade legislation, senior Senate Republicans were actively gaming out various contingency plans in case they are unable to pass a PATRIOT Act extension. One of which, two GOP senators said, was a back-up bill being drafted by Senate Intelligence Committee Chairman Richard Burr (R-N.C.) to phase in the USA Freedom Act over two years. Burr has also been in touch with House Intelligence Committee Chairman Devin Nunes (R-Calif.) and went to the House side on Tuesday to discuss the issue with lawmakers on the House floor.

McConnell indicated that he prefers a two-month extension of the PATRIOT Act and laid out why he opposes the House bill. | John Shinkle/POLITICO

Sen. James Lankford (R-Okla.), who sits the Intelligence Committee, said Burr has discussed a two-year certification process meant to verify that the House legislation would actually be effective — a proposal meant to assuage concerns from Senate Republicans about the USA Freedom Act.

“It contemplates a system where the phone companies retain the data and that we’re able to make a request of that data from the phone companies,” Lankford said of the House bill. “If that’s not technologically possible, it would leave us without an option.”

But Burr adamantly and repeatedly denied on Tuesday that he was writing a fallback proposal.

“I’m not negotiating any deals,” he said.

After Tuesday’s lunch, Burr wouldn’t talk with reporters. In a brief interview outside the Dirksen Senate Office Building, Burr rebuffed a reporter and said he would talk about anything other than the PATRIOT Act, indicating he was frustrated with stories saying he is working on a compromise.

But multiple Republicans mentioned Burr’s work on a middle ground on the PATRIOT Act and referred reporters to the North Carolina Republican.

“Burr, he’s the guy you really need to be talking to right now,” said Sen. Bob Corker (R-Tenn.). “Burr is working on a way of bridging the two together.”

Meanwhile, Senate hawks have worked to drum up support for the surveillance programs — an effort that appeared to make some headway as freshmen senators began to align with McConnell.

Sen. Mike Rounds (R-S.D.), a former governor, said the briefings have taught him the data collection is an important program that can’t be allowed to expire. He added that the House’s work is untested and could leave the country vulnerable.

“I don’t want to see this program go away,” he said. “We don’t want to give this up without having a viable alternative that’s been vetted and we know will be successful.”

Still, Senate Republicans pushing for reforms to the NSA programs said Tuesday that McConnell would not be able to count on their votes for a short-term extension. Sen. Dean Heller (R-Nev.), who is co-sponsoring the Senate version of the House bill, said he would not support a two-month reauthorization.

Heller, who spoke with House Majority Leader Kevin McCarthy (R-Calif.) earlier Tuesday, said he didn’t believe the House would back off from their call for the Senate to take up the bill. House members are set to leave Washington on Thursday, and McCarthy has not committed to keeping the House in session longer than that if the Senate sends back a different PATRIOT Act proposal.

“I don’t support any alternative that’s coming out of here except for the USA Freedom Act itself,” Heller said.

Senate Democratic leaders say most of their members are on board with the USA Freedom Act — Sen. Chuck Schumer (D-N.Y.) said support for the bill is “close to Democratic unanimity” — and indicated that a two-month extension would struggle to pass the Senate. Any extension of current PATRIOT Act provisions also faces filibuster threats on both sides of the aisle.

“What we’re seeing is just a repeat of a long, long pattern. I’ve been trying to kill [the] bulk phone records collection program since 2006,” said Sen. Ron Wyden (D-Ore.). “Any short extension will kind of keep you in that same mode. You’ll have another one after that.”

Manu Raju contributed to this report.