Tom Williams/CQ Roll Call via AP Images
Speaker of the House Mike Johnson (R-LA) is seen in the U.S. Capitol on December 5, 2023.
The 118th Congress has become more like a neighborhood watch program than a legislative body, policing fellow politicians instead of setting policy for the country. Reps. Jamaal Bowman (D-NY) and Rashida Tlaib (D-MI) have been censured, and George Santos (R-Cameo) expelled. This week, the House will likely formally undertake an inquiry to impeach President Biden.
Thirty-six House members, including Kevin McCarthy, who was just elected as Speaker at the beginning of the year, have self-expelled by announcing retirement or that they’re seeking another office. Incredibly, that’s a much higher number than the 22 bills the 118th Congress has passed into law this year. Of those 22, two rename federal buildings, one authorizes commemorative coins for the 250th anniversary of the Marine Corps, and one requires proposed federal rules to include a short plain-language summary. It’s been a slow news year for Congress enthusiasts, all two of them.
The only thing Congress has excelled at is delay. It has temporarily extended the debt ceiling, temporarily extended the government funding deadline (and then extended it again), and temporarily extended a series of other programs, from flood insurance to key health care programs to the farm bill to the Federal Aviation Administration. (That last one only goes until the end of the year, but lawmakers are looking to temporarily extend that too.) This week, it’s almost certain to delay military aid to Ukraine and Israel, unless it can manage to nail down a complete overhaul of immigration policy in a week after failing to do so for twenty years.
One item has really never been subject to the usual can-kicking: the National Defense Authorization Act (NDAA), which has passed every year since 1961. Even a Congress as disinterested in governing as this one should be able to get a perennial Pentagon policy bill through, right?
That must have been what House Speaker Mike Johnson (R-LA), the second Speaker of the year, was thinking when he clumsily flip-flopped to place a four-month extension of a key warrantless spying provision into the NDAA, figuring that it would sail through in the must-pass bill. This has angered members of both parties, who have insisted all year that they would not rubber-stamp unaccountable and illegal spying on Americans.
Johnson was already in hot water for stripping most of the right-wing riders from the NDAA, including provisions barring military diversity programs, funding for abortion travel, and support for transgender troops. Conservatives had suspected that the spying provision, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), would be used as a political weapon. “They want to use that to move a crap NDAA,” Rep. Chip Roy (R-TX) told Politico. (Roy was the guy who went to the House floor last month to ask anyone to “name one thing we’ve done for Americans since winning the majority,” and honestly, it’s a good question.) But the FISA addition, far from securing NDAA passage, could further complicate it.
As I wrote in June, Section 702 gives the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) the ability to conduct surveillance of emails, text messages, and phone calls of foreign suspects overseas, even if they are talking to Americans, and therefore even if American communications are swept up. No court warrants are needed for this spying, and the database of information can be queried by several intelligence agencies. The FBI has violated the rules for queries hundreds of thousands of times, with searches made in the database for donors to a congressional campaign, drug and gang investigations, anti-racism protesters, and two “Middle Eastern” men who were loading cleaning supplies into a vehicle.
The Congressional Progressive Caucus, after taking a vote of its 100-plus members, endorsed the Government Surveillance Reform Act, a bicameral bill from Sen. Ron Wyden (D-OR) and Rep. Zoe Lofgren (D-CA). This four-year extension of spying authority would prohibit law enforcement from using Section 702 collection on American citizens or persons located inside the U.S., or from buying information from data brokers, without a warrant. It would also prohibit “reverse targeting,” which is when a query is made on someone outside the U.S. for the purpose of spying on someone inside the U.S. Among other limits, information collected through 702 could not be used in any legal proceedings unconnected to national security issues.
If the NDAA extension passes, the next certification would happen before the April 2024 deadline, which could kick FISA reform into 2025.
Several of these provisions, including warrants for U.S. persons, made their way into the House Judiciary Committee’s version of FISA reform, a three-year bill known as the Protect Liberty and End Warrantless Surveillance Act, which passed the committee by the astonishing vote of 35-2. The House Intelligence Committee passed its own eight-year FISA reform bill, and there’s a Senate companion. As you might guess, the Judiciary version is seen as far stricter; the Intelligence version includes frippery like independent audits and approvals and disclosures but would still allow most spying on U.S. persons. Most of former president Donald Trump’s intelligence apparatus supports the Intelligence Committee bill.
“The House and Senate intelligence committees want nothing more than to prevent their colleagues in Congress from voting on any meaningful privacy protections for Americans, which is precisely why it took them a year to produce fake reform legislation, strategically designed to accomplish approximately nothing,” said Sean Vitka, policy director at Demand Progress, in a statement.
Johnson initially floated an extension of Section 702 inside the NDAA through February, then took that out, and then placed it back in with an extension to April. To soothe tensions, Johnson scheduled a vote for this week of both the Judiciary and Intelligence bills, under a special “queen of the hill” process that will advance whatever version gets the most votes. Along with Senate leadership, Johnson is promising a final vote on the winning version by the April date.
This isn’t good enough for a bipartisan group of House members. Over 50 signed a letter expressing opposition to including any short-term extension in the NDAA. For one thing, they note, because of the way that the FISA statute works, agencies can continue the spying under an annual certification process, whether there’s a reauthorization or not. If the NDAA extension passes, the next certification would happen before the April 2024 deadline, which could kick FISA reform into 2025, according to Rep. Warren Davidson (R-OH), one of the loudest critics of the policy.
The White House, for its part, has been warning that any Section 702 gap would threaten the lives of everyone living or dead in history (that’s only a slight hyperbole). Intelligence officials, who claim that the FBI breaches of the FISA rules have been significantly curtailed, briefed Democrats yesterday with the usual bluster that the House Judiciary version would harm national security. The Progressive Caucus hasn’t yet decided whether to oppose the NDAA or whip its members on it.
The Senate should finish work on the NDAA on Wednesday, and the House could turn that around quickly. But there’s enough anger in both parties to make passage an open question. Maybe some movement on a FISA reform bill will reduce the temperature enough. But remember, the hard right was already angry about the loss of social policy riders.
More than anything, there’s puzzlement with Johnson’s erratic decision-making, whipsawing between the right-wing and national security wings of his own caucus. The current rules framework of the House, allowing any one member to petition to fire the Speaker, makes managing the place next to impossible. This is now threatening the only reliable thing that Congress does these days. And it will potentially cement a hated spying program that a large majority agrees needs to be fixed.
