Senate leaders are preparing for what could be a protracted brawl over government surveillance powers during a rare public debate Wednesday over how to reauthorize key national security tools that lapsed two months ago.
The two-day floor debate threatens to start a domino effect across the Capitol and down Pennsylvania Avenue — and the Senate’s civil libertarians are girding for a fight that Republican leaders acknowledge could get ugly.
“At this point it’s sort of a Wild West, I would say,” predicted Senate Majority Whip John Thune (R-S.D.), who, like other GOP leaders, is hoping for swift passage of a House-passed bill that makes modest reforms to the Foreign Intelligence Surveillance Act.
Libertarian-leaning senators such as Rand Paul (R-Ky.) and Mike Lee (R-Utah) are on the opposing side. The small but powerful group of privacy hawks secured a package of votes on three amendments to the House bill that aim to place even stricter limitations on federal surveillance power.
Some of those senators are also fighting for influence over President Donald Trump, who has not formally endorsed the House bill even though Attorney General William Barr helped negotiate it.
“I have not heard what the president’s intentions are,” conceded Sen. John Cornyn (R-Texas), the former GOP whip and a top adviser to Senate Majority Leader Mitch McConnell (R-Ky.).
Some of the Senate’s civil libertarians have taken their concerns straight to the president, urging him to veto the bill if the Senate sends it to him without any changes. And it could reignite Trump’s anger over the investigation into Russian election interference, which he believes was falsely predicated by a group of officials who weaponized FISA powers against him and his presidential campaign.
“I’ve told President Trump, you ought to veto this. If they don’t fix it where this can’t happen to another president, then we haven’t fixed the problem,” said Paul, who filibustered a surveillance renewal bill in 2015 and this time around is pushing for more reforms to the FISA process.
“Whether or not he’ll actually get involved when he has various parts of his administration for it and then various allies like myself against the weak reform, that’s the real question on this,” Paul added. “I don’t know the answer as to how he’ll come down.”
Wednesday’s debate comes nearly two months after three key FISA provisions lapsed amid an impasse between the House and Senate. And the result will likely be shaped in part by the three-plus years of partisan haggling over the Russia investigation, specifically the surveillance of Trump campaign adviser Carter Page, who had extensive contacts with Russians.
The debate could also be influenced by the uproar among Trump’s allies over the initial investigation and prosecution of former national security adviser Michael Flynn. The Justice Department dropped the criminal case against Flynn last week.
“I think there’s a concern that the committees that are looking into these issues may not be able to come up with any solutions in the not too distant future, and therefore see this as the best opportunity to reform the process,” Thune said, referring to Senate Republicans’ ongoing oversight of the Justice Department. “And that’s certainly highlighted by what’s going on with Flynn and everything else in the political ether right now.”
Lawmakers hailed the imminent Senate debate as an opportunity for supporters of the president and civil libertarians to come together around a common cause of scaling back one of the government’s most invasive authorities.
“This is our only opportunity to address FISA in any meaningful way for years,” said Sen. Josh Hawley (R-Mo.), a top Trump ally.
But GOP leaders aren’t interested in such a broad debate yet. They say the first priority should be to reauthorize tools that are critical for fighting terrorism and keeping Americans safe.
“We have not had access to those kinds of records again for almost two months now,” said Sen. Roy Blunt (R-Mo.), a member of GOP leadership, urging swift passage of the House bill and referring to the government’s ability to collect records on potential terror suspects.
They’re also promising a more thorough debate over FISA reforms within the Senate Judiciary Committee as a way to quickly dispense with this week’s legislative business.
“The problem is, this passed the House overwhelmingly. Sending it back to the House would shut things down, I’m afraid, when it comes to reauthorizing the surveillance programs we need,” Judiciary Chairman Lindsey Graham (R-S.C.) said, vowing that “this will not be the last word on FISA reform.”
Before leaving town amid the coronavirus pandemic, the House passed a bipartisan bill to reauthorize those programs with modest reforms. The Senate, meanwhile, could not clinch an agreement for swift passage of the House bill in March amid objections from the chamber’s privacy hawks, and eventually adopted a 77-day extension as a short-term patch; but the House never took up that bill, and the authorities have remained offline ever since.
The House bill was negotiated alongside the Trump administration, and Barr endorsed the final product. But it remains unclear whether the president would ultimately sign the measure — or whether it will reach his desk in its current form.
Senators will vote on three amendments to the House-passed bill, all of which were introduced by the Senate’s most vocal civil libertarians. Each will require 60 votes for passage, and Senate Minority Leader Chuck Schumer (D-N.Y.) said there is “a lot of support” among Democrats for the amendments, meaning the success of each one will likely depend on how many Republicans break with their leadership.
The amendment most likely to pass is the one introduced by Lee and Sen. Patrick Leahy (D-Vt.), which aims to boost legal protections for individuals who are targeted by federal surveillance.
A second measure, introduced by Paul, would bar the FISA court from authorizing surveillance of a U.S. citizen.
“There’s no guarantee that what happened to President Trump won’t happen to another president,” Paul said in urging support for his amendment.
The third amendment, introduced by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.), would protect Americans’ internet browsing history from federal surveillance.
“I’m going to be making the case that this is digital tracking, pure and simple,” Wyden said.
Under an agreement struck in March, McConnell can introduce up to three amendments of his own to undercut or weaken the others. It’s unclear whether McConnell will move to do so.
If the bipartisan amendment from Lee and Leahy is adopted, the legislation would be sent back to the House. While supporters of the House bill don’t outright oppose adding the measure, it’s unclear whether that alone would satisfy privacy advocates who previously voted against the bill and keep them from again arguing that the entire measure should go back to the drawing board.
Even if senators approve additional amendments, that still might not stop House Republicans, especially those who have spent weeks demanding the chamber reopen for business as usual, from seeking leverage for a protracted debate over FISA reforms.