FISA bill stalls over Senate amendment fight hours before deadline

A bill to reauthorize the Foreign Intelligence Surveillance Act’s (FISA) warrantless spying program stalled in the Senate on Friday because of a fight over amendments that Senate Majority Leader Chuck Schumer (D-N.Y.) worries could pass and send the bill back to the House.

Senators and Senate aides in both parties now say that FISA’s Section 702 authority is likely to lapse at midnight because Schumer isn’t close to giving colleagues who want amendments a chance to vote on their proposals.

In return, senators who want changes to the bill are refusing to yield back floor time to allow a final vote before FISA’s expanded surveillance power under Section 702 expires at the stroke of midnight.

Sen. John Cornyn (R-Texas), a member of the Senate GOP leadership team and a senior member of the Intelligence Committee, said the warrantless surveillance program is likely to “go dark” because of the Senate stalemate.

Sen. Kevin Cramer (R-N.D.) told reporters Friday afternoon that Schumer may not even have the 60 votes he needs to advance the intelligence authorization bill to a final vote unless he agrees to let senators vote on amendments.

Cramer and Senate Democratic Whip Dick Durbin (Ill.) have sponsored an amendment that would require the government to obtain court approval before accessing the content of Americans’ private communications swept up in the Section 702 surveillance. It has a good chance of passing.

“What’s getting me … is they’re clearly afraid it will pass. What really offends me is that they don’t let us vote on anything that might pass that alters their plan. And by doing such, they’re demonstrating that they know better than we know, that yes there are 100 senators, but only one or two should determine what we have the right to vote on because something might pass,” Cramer said.

“All amendment deals around here start with the premise, ‘Whip it first, make sure it won’t pass, then let them vote on it,’” he said. “If that’s the case, why do we have the most deliberative body in the world made up with 100 people each with one vote? We can all just go home and let Chuck Schumer do whatever the White House tells them.”

Durbin told reporters that there’s been little real negotiation about setting up votes on amendments.

“I don’t know that they’re underway,” he said. “I’m hoping for an amendment deal soon.”

Durbin said he hasn’t yet “been approached” about a possible vote on his amendment, which is patterned after the amendment sponsored by Rep. Andy Biggs (R-Ariz.) in the House, which narrowly failed by a vote of 212-212 earlier this week.

Durbin said his and Cramer’s amendment is more likely to pass than the Biggs proposal.

“I think it’s narrower than that amendment, and it has a better chance of passage,” he said.

While the Durbin-Cramer proposal would require an amendment to access the content of Americans’ communications swept up in the 702 program, the Biggs amendment would have required a warrant to review Americans’ data more generally.

The other amendments that have a good chance of passing are proposals sponsored by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah).

Wyden’s amendment would strike language added to the bill by House Intelligence Committee Chair Mike Turner (R-Ohio) that would expand the scope of businesses required to comply with government surveillance and data requests.

Wyden warned on the floor that the provision is worded so broadly that “there would be practically no limits to who can be forced into spying for the government.”

“Any company that installs, maintains, or repairs Wi-Fi or other communications systems in any American business, home or church can be dragged into this,” Wyden argued on the Senate floor.

The third amendment at issue, sponsored by Lee, would broaden the role that amici curiae, or friends of the court, would have in Foreign Intelligence Surveillance Court proceedings, giving outside groups a chance to rebut or offer comment on government surveillance requests.

The Senate passed Lee’s amendment to strengthen third-party oversight of the FISA process by a vote of 77-19 in 2020, but the proposal stalled in the House and failed to become law.

Cornyn warned Friday that if adopted, Lee’s amendment would create a “massive legal hurdle in the 702 process.”

Sen. Lindsey Graham (R-S.C.), emerging from a GOP lunch meeting Friday afternoon, said Schumer is in a tough position because if the bill is amended, it would have to go back to the House before reaching President Biden’s desk, which means Congress would blow through the deadline for reauthorizing the program.

“If any of them pass, it throws the bill in a ditch,” he warned of the amendments.

But he also pointed out that if the senators demanding votes on amendments refuse to yield back time, the FISA bill won’t pass the Senate until Monday or Tuesday.

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