When I reported out my first story on the fight over Section 702 of the Foreign Intelligence Surveillance Act (FISA) in March, it was an open question whether Freedom Caucus Republicans would succeed in linking the reauthorization of the government’s warrantless spying program to the Safeguard American Voter Eligibility (SAVE) Act, a Jim Crow–coded disenfranchisement bill that would require voters to provide proof of citizenship before registering to vote in federal elections. That was three months ago.
Earlier this month, Democrats seemed poised to withhold their support for a 702 extension in protest of President Trump’s decision to name Federal Housing Finance Agency (FHFA) Director Bill Pulte as acting director of national intelligence (DNI). A procedural vote in the Senate to begin debate on Section 702 failed on June 5 amid the backlash over Pulte’s appointment, and the underlying statute lapsed at midnight on June 12.
But congressional Democrats didn’t end up taking FISA hostage; Donald Trump did.
Last week, the president doubled down on his pledge to not sign any FISA-related legislation until Congress passes the SAVE Act. Trump’s comments came less than a week after he nominated U.S. Attorney Jay Clayton as permanent DNI, and on the same day as Clayton’s confirmation hearing, which the president instructed his nominee not to attend.
Clayton, a longtime Wall Street lawyer who served as SEC chair during Trump’s first term, lacks the national security experience required of the role. He also recently appeared on CNBC’s Squawk Box alleging that there were major problems with recent elections in California after Trump baselessly suggested there had been fraud. But as my colleague Bob Kuttner observed, intelligence hawks still took the bait, welcoming Clayton’s nomination with open arms, until Trump put him on ice to get Pulte in there on an interim basis.
In an interview with the Prospect, longtime privacy advocate Sen. Ron Wyden (D-OR) said the only way to protect Americans’ rights is with “black letter law” that establishes a check on whoever is in power. “If Congress waits around for Trump now,” he said, “it is a recipe for bedlam.”
“This country is capable of having both security and liberty. The two are not mutually exclusive.”
Sen. Ron Wyden (D-OR)
Wyden’s view is that the appointment of Pulte, who has already begun firing intelligence officials deemed insufficiently loyal, is yet another reason why “every single Democrat ought to refuse to reauthorize Section 702 without new safeguards for Americans’ rights.” But in addition to his concerns over Pulte, whose potential for abuse is “almost unlimited,” Wyden believes many of the questions that have since been raised about Clayton are “appropriate.”
“I’m the first United States senator in history to be elected by mail, so I’m very concerned about what Clayton has said publicly,” Wyden told the Prospect.
Negotiations over Section 702 reauthorization have stalled. Those hawkish Democrats are desperate to fold, but not until Pulte goes and 702 is separated from SAVE.
The statutory lapse, which is unprecedented but does not end Section 702 wiretap authority by itself, could have been avoided if Republican leadership allowed fair votes on privacy reform. Instead, they attempted to ram through multiple 702 extension proposals, all notably lacking in meaningful Fourth Amendment protections, and struggled to navigate the chaos Trump has sowed with his DNI nominees and SAVE Act antics.
The surveillance authority has been legally extended to next April, after the 2026 midterm elections. If Republican leadership will not relent in its efforts to pass a (mostly) clean extension of Section 702, what sense is there in Democrats ceding so much as an inch of ground in the fight over warrantless surveillance before they regain control of Congress?
As of June 23, Silver Bulletin’s 2026 congressional ballot polling average, a combination of generic ballot polls, showed Democrats leading nationally by approximately 6 percent. Generic ballot polls with an influence score of at least 1.00 put that lead at anywhere from 5 percent to 11 percent. There are enough House and Senate races in play for both chambers to change hands. Billionaire hedge fund CEO and GOP mega-donor Ken Griffin doesn’t have a crystal ball, but even he’s convinced Democrats will take back the House.
Apart from the usual political pendulum-swinging, Trump’s destructive policies appear to be contributing to the shift in voter sentiment. Could that be why he desperately wants to pass the SAVE Act, let alone have an election skeptic confirmed as DNI?
THE “WARRANTS OR BUST” STRATEGY taken up by privacy-aligned Democrats and their civil libertarian colleagues on the other side of the aisle has complicated the Republican leadership’s push for a long-term, largely clean extension of Section 702. It has also put them on a likely trajectory to force fair votes on privacy reform.
For his part, House Minority Leader Hakeem Jeffries (D-NY) has called for “commonsense reforms that would be designed to both promote our national security interests on the one hand, and on the other, protect the privacy and civil liberties of the American people.” However, he has not specified whether such reforms would include requirements for intelligence agencies to obtain a warrant before running a search, or query, for U.S. person data. Jeffries also issued a joint statement alongside notable intelligence hawk Rep. Jim Himes (D-CT) and House Democratic leadership in opposition to Pulte’s appointment earlier this month, leading some privacy advocates to question what exactly Jeffries defines as “meaningful reforms.”
If Democrats do indeed retake the House, an ascendant Jeffries might be compelled to heed the calls of reformers to rein in the government’s sweeping spying powers. It is equally plausible that the centrist Democrat from New York reneges on his professed support for 702 reform, thereby giving intelligence hawks an opportunity to present window dressing as reform like they did in 2024.
The same can be said for Senate Minority Leader Chuck Schumer (D-NY) if the upper chamber were to flip. Yet the question for both Jeffries and Schumer is whether they would broker a compromise pairing an actual warrant requirement with a long-term extension of Section 702. And at the least, there would be more Democrats in each chamber, and likely more members who would refuse to give Donald Trump and the intelligence apparatus a blank check to spy on American citizens.
“Donald Trump, and his supporters in the Senate in particular, don’t share the fundamental proposition … that this country is capable of having both security and liberty,” Wyden said. “The two are not mutually exclusive.”
The risk of Democrats holding out on reauthorization until after the midterms is threefold. For one, privacy advocates hope to maintain the current momentum for meaningful reform in Congress and across the country. Preserving that momentum over the next several months is entirely possible, but not guaranteed.
“My sense is that the country is really figuring out that smart policies will give you liberty and security, and not-so-smart policies will give you less of both,” Wyden told the Prospect. “They want the former.”
The second headwind is the planned departure of six House Freedom Caucus members who are likely supporters of reform, including Rep. Chip Roy (R-TX), who lost his bid to become Texas attorney general, and Rep. Andy Biggs (R-AZ), who is running for governor of Arizona. The third, and perhaps most consequential, challenge for privacy-aligned Democrats is countering the national security establishment’s usual fearmongering, especially in the aftermath of a potential terrorist attack.
However, if he persists in demanding that SAVE is attached to Section 702 reauthorization, and refuses to allow Clayton to be confirmed as DNI, Trump may make this a settled question.
Dylan Hedtler-Gaudette, director of government affairs at the Project on Government Oversight (POGO), described the fight to end warrantless surveillance as an “uphill battle,” in large part because of the weight “the intelligence community and its allies” hold over the spying debate. He recalled when House Speaker Mike Johnson allowed the Fourth Amendment Is Not for Sale Act to advance to the floor in April 2024. The House passed the bill closing the data broker loophole, 219-199, but it stalled in the Senate.
In the ongoing slog to extend Section 702, Johnson and Republican leadership more broadly seem to have lost their way.
“It’s up to congressional leadership to negotiate in good faith and read the tea leaves,” Hedtler-Gaudette told the Prospect. “You can’t pass FISA without reforms.”
