House punts on FISA, votes to begin negotiations with Senate

The House voted Thursday to request a conference with the Senate over a bill to reauthorize three intelligence programs after it failed twice this week to vote on the legislation. 

The 282-122 vote allows negotiations between the House and Senate to begin as Congress tries to reach a deal on legislation to reauthorize three lapsed surveillance programs and make some changes to the court associated with the Foreign Intelligence Surveillance Act (FISA). 

Reps. Adam Schiff (D-Calif.) and Devin Nunes (R-Calif.), the top members of the House Intelligence Committee; Jerrold Nadler (D-N.Y.) and Jim Jordan (R-Ohio), the top members of the Judiciary Committee; and Zoe Lofgren (D-Calif.), who has been at the center of the months-long debate, will lead the negotiations for the House.

The Senate will also have to vote to formally launch a conference committee. Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) talked on Thursday morning about the plan to go to conference to work out the differences. 

“The Leaders spoke this morning. Going to a conference committee is regular order when the two chambers disagree,” a spokesman for McConnell told The Hill. 

Establishing a conference committee would allow leadership and key members space to try to hash out an agreement on how to handle the intelligence programs in the face of insurmountable opposition from Republicans and progressives that scuttled House Speaker Nancy Pelosi’s (D-Calif.) plan to try to send a Senate-passed bill to President Trump’s desk. 

“It will be our intention to go to conference in order to ensure that all of the views of all Members of our Caucus are represented in the final product,” Pelosi wrote in a “Dear Colleague” letter on Thursday, laying out her backup plan.

Democratic leadership has largely pinned the failure to secure passage of the reauthorization bill on Trump, who on Tuesday urged Republican lawmakers to vote against it because of alleged abuse of FISA by the Obama administration to spy on his 2016 campaign.

He then doubled down on the criticism Wednesday, pledging to veto the bill if it was passed.

The House initially passed the bill in March, shortly before the intelligence programs expired. But the Senate amended it earlier this month by adding language from Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) that would let outside counsel review some FISA surveillance requests.

House Democratic leaders then sought to vote on the Senate bill.

House Republican leaders, who had backed the bill in March before the Lee-Leahy language was added, on Wednesday opposed it as Trump urged them on.

But McCarthy on Thursday did expressed support for sending the initial reauthorization legislation that passed the House in March to conference.

“We spent all day yesterday late into the night until [Democrats] finally came to a conclusion that they could not pass it,” he said during a press conference. 

“So, what would you do now in this predicament? I would send it to conference, that’s what regular order is — you have a Senate bill that the House could not pass, you have a House bill go to conference and work on trying to solve the differences. That’s the appropriate way to go,” he added. 

Despite the pushback from Republicans, Democrats may have been able to pass the bill alone if not for opposition from progressives. But they faced an uphill battle to do so. The initial bill passed in March garnered only 152 Democratic votes, meaning Pelosi would have had to flip dozens of her members. 

An amendment that was initially meant to mirror one offered by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) in the Senate became a late controversy.

It would have required a warrant before law enforcement could access web browsing history. 

But the language from Lofgren and Rep. Warren Davidson (R-Ohio) only offered the protection to U.S. persons and ultimately lost the support of Wyden after Schiff suggested it left leeway for Americans’ data to be collected during foreign intelligence investigations.

Pelosi said during a press conference Wednesday that leadership dropped the amendment because the Senate version would get the most votes.

Despite concerns with the amendment from progressives, stripping it entirely cost their support for the underlying bill.

Reps. Pramila Jayapal (D-Wash.) and Mark Pocan (D-Wis.), co-chairs of the Congressional Progressive Caucus, came out in opposition of the reauthorization shortly after the amendment was dropped.

FreedomWorks, a libertarian advocacy group that backed the Wyden-Daines amendment, scored against the vote to go to conference. 

“If we can’t get the reforms needed to protect civil liberties, the surveillance authorities should remain expired,” Jason Pye, the group’s vice president of legislative affairs, tweeted about the decision.  

Schiff, the lead prosecutor for House Democrats during President Trump’s impeachment trial, has been a target of progressive Democrats throughout the FISA debate. They accused him of derailing the Lofgren-Davidson amendment. 

“He has done nothing but prevent Congress from voting on this and he is clearly wielding the intelligence committee to shield the FBI not only from oversight but from basic Congressional process,” Sean Vitka, senior policy counsel at internet rights group Demand Progress, told The Hill.