The perilous procedural path in the House to consider legislation (H.R. 7888), reforming and renewing the Foreign Intelligence Surveillance Act (FISA), is a tale worth telling, even if not always easy to follow.
Its twisting trail spanned four consecutive days last week, right up to mid-afternoon Friday, finally freeing members to catch their planes home. Even after the successful final passage vote, an unanticipated final procedural vote was called that had to be postponed until this week. That move prevented the bill from being sent immediately to the Senate. The existing FISA authorization expires tomorrow, April 19.
The most contentious part of FISA is section 702 which authorizes the surveillance of foreign nationals abroad, even though they may be communicating with U.S. citizens. That provision raised the hackles of privacy warriors on both the left and the right that would prove to be a major stumbling block.
The saga began last Tuesday afternoon when the House Rules Committee met to consider granting a special rule for the FISA bill and three unrelated measures (two of which were bumper-sticker resolutions denouncing the Biden administration’s immigration policies and opposing pressures on Israel). The FISA bill was brought by the leaders of the House Intelligence and Judiciary committees, though neither committee had formally reported the measure.
Several members testified in favor of making in order some 21 amendments they had filed with the committee several days before. Only six of those would make the final cut in the rule — two by Republicans and four by bipartisan groups of co-sponsors. The reported rule (H. Res. 1125), provided for two hours of general debate on the FISA bill followed by consideration of the six amendments.
When the special rule was called-up on the floor Wednesday it was hotly debated under the hour-rule (with time equally divided between the Republican and Democratic managers for the Rules Committee). Meantime, former President Donald Trump was busily kibbitzing from the sidelines with such subtle social media posts as, “KILL FISA!” Because the bill would extend FISA for five years, his main concern was that if elected president, he would not get a chance to revise the Act before his term ended.
Republicans only have a razor-thin majority in the House and cannot afford to lose more than two of their members if Democrats vote in unison the other way (which they usually do on special rules). In this instance, the GOP MAGA caucus was in high dudgeon, and 19 jumped their leadership’s ship, helping to kill the special rule 193-228, with all 209 Democrats voting “nay.” With that vote, the meat of the week’s work was stalled as leaders huddled to determine their next step.
Finally, the Rules Committee called a meeting Thursday evening to consider a second rule. What emerged was a special rule (H. Res. 1137) with a procedure that “self-executed” the adoption of an entire amendment in the nature of a substitute for the FISA bill. A “self-executing rule” is one that automatically affixes a provision to a bill with adoption of the rule, thereby avoiding a separate vote later. The essence of the substitute was to extend the FISA authorization for just two years, instead of five, thereby giving the former president and his House allies what they wanted. When the rule came to the floor Friday morning it was adopted on a party-line vote, 213-208.
After general debate on the bill was concluded, five of the six amendments were easily adopted. The most contentious amendment was a bipartisan amendment sponsored by Rep. Andy Biggs (R-Ariz.) and four other members of the Judiciary Committee, including its chairman, Rep. Jim Jordan (R-Ohio), and ranking member, Rep. Jerrold Nadler (D-N.Y.). The amendment would prohibit warrantless searches of U.S. person communications in the section 702 FISA database. It was defeated on a 212-212 tie vote.
The amendment was heavily lobbied against by President Biden’s national security team. All five House Democratic leaders voted against it as did three of the top five GOP leaders, including Speaker Mike Johnson (R-La.).
The overwhelming vote of 273-147 on final passage of the FISA bill affirmed that the leadership had struck the right chord with the new procedural rule. Republicans voted 146-88 for the bill and Democrats 147-59.
As the chamber emptied for the day, two die-hard Republicans attempted to force a vote to reconsider the final passage vote. One of the GOP bill managers immediately offered a motion to table their motion. When a roll call vote was demanded, the Speaker pro tempore announced the vote would be postponed to a later date. That tabling motion was then adopted on Monday, 259-128, bringing the saga of the spy bill to an end in the House. But its fitful procedural path resembles more a “Pink Panther” cartoon than a serious legislative pursuit.
Don Wolfensberger is a 28-year congressional staff veteran, culminating as chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018.) The views expressed are solely his own.