Jeb Bush was spending the evening in New Hampshire, stumping for votes in his as yet undeclared campaign. John Kasich was in New York City, working over donors for his as yet undeclared campaign. Senator Rand Paul, the presidential candidate who has pledged to smash “the Washington machine,” was on the floor of the U.S. Senate, asking the world’s greatest deliberative body to actually show up and deliberate the renewal of the Patriot Act.
For 10 hours and 31 minutes, Paul and three fellow Republicans joined seven Democrats to debate terrorism, privacy and the Bill of Rights. The Kentuckian promised not to rest "as long as my legs can stand," daring President Obama to end bulk data collection, and attempting to delay the debate on Patriot and the USA Freedom Act—the legislation that divides civil libertarians. From time to time, Oregon Senator Ron Wyden would take the floor to praise Paul and explain why the anti-terror law could not be rushed through.
"I'm not sure unless we insert ourselves at this moment that we'll have any debate over it," Paul said. "It's been set to expire for three years. We've known it was coming. And the question is, do we not have enough time because we just don't care enough?"
Paul paced behind four desks near the front of the Senate, each piled with a short stack of documents that amounted to a menu for his speech. A glass of ice water, which went neglected for most of the speech, was eventually swapped for a colder glass by a helpful Senate page. Paul wore black shoes that he clandestinely swapped for grey sneakers with neon laces, a reflection of what he'd learned after his 2013 filibuster of CIA Director John Brennan's nomination.
"When people ask me what I would do differently the next time I stage a filibuster of that length, my answer is simple," Paul writes in his forthcoming book Taking a Stand. "'Tennis shoes,' I tell them. 'The next time I'll wear tennis shoes.'"
The senator veered between reading articles into the congressional record, criticizing the NSA as it existed, and arguing with good faith supporters of USA Freedom. Paul asked if the reform bill was a Trojan horse. It was designed to end the government's bulk data collection under Section 215 of the Patriot Act. Yet by asking telecoms to snap up the same data, was it self-defeating?
"I really feel like what we could end up doing is that we think we won, then two years later they're plugging the name Verizon into warrants," Paul said. "Here's the question: Is USA Freedom going to allow bulky, perhaps bulk collection? Do we end up giving more power to the intelligence community when we're trying to limit their power?"
On Twitter, where a #StandWithRand hashtag had been linking together conversations about the filibuster, Paul's argument was falling flat. "This whole argument I just don’t find convincing," wrote Julian Sanchez, a senior fellow working on privacy issues at the libertarian Cato Institute. "USAF very explicitly prohibits what Rand’s talking about right now." Amie Stepanovich, policy manager at the digital freedom think tank Access, tweeted a link to USAF language that contradicted Paul.
The argument was no accident. Paul's floor strategy was an evolution of his 2013 filibuster against CIA Director John Brennan, a moment he used to ask whether the Obama administration could legally justify drone killings of Americans. That speech had been a social media sensation, the mother of countless Paul memes. The 2015 filibuster had the feel of indie film director suddenly gifted with the resources of a major Hollywood studio. Paul's campaign bought Google ads that cycled through his message and his call for citizens to join the reform fight.
On May 31, key provisions of the PATRIOT Act expire.
We must stop the surveillance state.
Add your name to Rand's PATRIOT Act filibuster today!
Clicking that ad sent viewers to a splash page where they could watch a ticker add up all the people who'd added their names. By 10 p.m., the ticker had cracked 100,000, rising steadily over an "exclusive video" from Paul himself.
"The Patriot Act is the most unpatriotic of acts," said the senator to camera, as thumping film music played. "I won't stand for the Senate to shove us aside and not let us debate this very important issue."
Paul's campaign even participated in a rally outside the Senate. At 6 p.m., after only a short heads up on Facebook, two dozen-odd supporters of the senator gathered near the Capitol steps to wave signs and chant slogans—"President Paul," "Hey Hey, Ho Ho, the NSA has got go." Emily Larsen, a 25-year old field coordinator for the conservative Leadership Institute, jumped in the air to get her sign in view of clicking cameras.
"It's really important that this issue stays in the forefront, because it's so easy for people to overlook," said Larsen. "Rand Paul does a really great job of bringing to light issues that other people might not want to engage with."
Meanwhile, Paul's campaign staff was on war footing, collecting and sharing the photos of people who wanted to declare solidarity. At one point, the staff even shared a relaxed photo of Paul's parents in front of a glowing TV screen tuned to C-Span.
Paul was getting the credit for the speech, but on the floor, he was handing over plenty of time for questions. Utah Senator Mike Lee, a frequent Paul ally, stood behind his desk multiple times to argue that the USA Freedom Act was salvageable. Montana Senator Steve Daines, a Republican elected in 2014, spoke about how he'd come to the Senate chamber in 2013 to watch Paul's filibuster then. Texas Senator Ted Cruz, who spent the hour between 10 and 11 p.m. presiding over the Senate, said that he would "go to my grave in debt to Senator Rand Paul" for the opportunity to join that filibuster.
All told, seven Democrats—Wyden, Connecticut's Richard Blumenthal, Washington's Maria Cantwell, Delaware's Chris Coons, New Mexico's Martin Heinrich, West Virginia's Joe Manchin, and Montana's Jon Tester—also joined Paul on the floor, giving him the debate he'd asked for. That impressed some of the Republican members of the House who used their privilege to visit the Senate floor.
"It's very genuine of Senator Wyden to be here, supporting Rand, even though this may raise his profile in the presidential race," said Representative Tom Massie of Kentucky after one round of arguments.
"When I was on the House floor, multiple Democrats came up to me and asked me if Senator Paul would stand up for us," said Michigan Congressman Justin Amash, a Republican, who, like Massie, had endorsed Paul for president, and who had just distributed a letter from 59 colleagues opposing the Patriot Act. "They were excited—and these were Democrats."
There was less obvious support from Republicans. Florida Senator Marco Rubio, who like Cruz and Paul is running for president, presided over the debate for its final hour. He pored over a foreign policy magazine, showing no reaction as two people who may share a debate stage with him argued that the NSA was out of control. And even Cruz disagreed with Paul on the USA Freedom Act. Like Wyden, like the ACLU, he preferred that the bill be amended by civil libertarians before getting a vote. Paul seemed to be alone in worrying that a compromise would undo all of the work of privacy advocates.
"The point of the lawsuit is to end the NSA’s call-records program and persuade Congress to reform the surveillance laws," wrote Jameel Jaffer, deputy legal director of the ACLU, in an e-mail to Bloomberg News. "As we’ve said from the beginning, we believe that USA Freedom doesn’t go far enough—we think the bill should be strengthened. But the important point is that the lawsuit isn’t an end in itself. If Congress manages to pass strong reforms, we’ll be very happy to declare victory and go home."
The fate of the USA Freedom Act was tied to the Senate's schedule. Earlier in the day, Paul's office told reporters that holding the floor past midnight would prevent Senate Majority Leader Mitch McConnell from filing cloture on the Patriot Act and related bills.
"There's been a pattern in the past where when you get down to the final days, there's pressure to go along with a short term extension," said Wyden toward the end of the debate. "What we've shown today is that this kind of behavior is no longer acceptable. You have made that point."
Paul did not hold the floor past midnight. He finished at 11:49 p.m., greeting Massie and the supporters who had come to watch him speak, then turning to reporters to explain what hd been won.
"It was kind of nice to have bipartisan support," he said. "Really, there's unanimity among a lot of us that the bulk collection ought to end."
According to Paul, the tiring floor speech had probably slowed down the PATRIOT and USA FREEDOM timelines. Even if Senate leaders scheduled them, the hope of a quick vote before the recess had been complicated—the speech would have made that strategy infamous.
"I think it's delayed it for another day, because they're not going to do anything," he said. "After midnight, it delays it a day. And it gives us a little more leverage in trying to demand votes. It also depends what the reaction of the public is. If the public reacts in a good way, maybe they'll be more inclined to give me votes."