Francis Chung/POLITICO via AP Images
Rep. Pramila Jayapal (D-WA), who heads the Congressional Progressive Caucus, speaks with reporters outside the U.S. Capitol, November 15, 2023.
The Prospect has learned that the Congressional Progressive Caucus (CPC) is formally recommending a no vote on the National Defense Authorization Act (NDAA), typically a must-pass bill that has advanced through Congress for the past 62 years.
The decision comes after House Speaker Mike Johnson (R-LA) inserted a four-month extension of a controversial warrantless spying provision into the bill. That extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires at the end of the year, could keep the program in place through the entirety of President Biden’s first term.
The CPC opposes Section 702 after multiple revelations of abuses that led to hundreds of thousands of FBI searches for personal information of U.S. persons, unrelated to foreign intelligence operations. A bipartisan group of lawmakers in the House and Senate have been agitating for reform.
“The FY24 NDAA authorizes an unacceptably high national defense spending topline of $886.3 billion—all at a time when the Pentagon has failed an independent audit for its sixth consecutive year,” notes the CPC’s no recommendation. The caucus ordinarily opposes the NDAA for this reason.
But this year, the recommendation adds that “the NDAA contains a reauthorization of surveillance authorities routinely used against Americans in violation of the Constitutional right to privacy.”
Rep. Pramila Jayapal (D-WA), chair of the caucus, signed a letter last week opposing adding the extension to the NDAA. Because of the way that the FISA statute works, agencies can continue operations under an annual recertification process that occurs in April, whether there’s a reauthorization or not. The NDAA extension would take Section 702 out past the April 2024 recertification, allowing spying to continue until 2025, making it more of a 16-month extension. At that point, a new Congress may choose to extend it again.
There are no provisions within the extension to prevent the annual recertification from happening, the CPC no recommendation points out.
The situation was made more urgent when Johnson dropped a proposed “queen of the hill” process to let lawmakers choose between two reform packages, one from the House Judiciary Committee and another from the House Intelligence Committee. The bill with the most votes would have become the base House reform bill, but lawmakers balked at that and Johnson pulled them from consideration. The Judiciary bill is seen as much stronger, with the Intelligence bill reflecting the wishes of the White House and the broader intelligence community.
That means the path for reform would be cloudy if Congress extends Section 702, with no plan in place and no pressure to act for the remainder of this Congress.
The CPC’s recommendation is nonbinding. It’s an informational note that goes out to the 100-plus members. Officials will not be whipping the bill, which is scheduled for a vote tomorrow.
Because of some unique circumstances, however, it is significant that the largest Democratic caucus opposes the typically routine NDAA. The bill, which resulted from a compromise conference between the House and Senate, was shorn of the social policy riders that far-right members wanted, involving Pentagon policy on travel for abortions and support for transgender service members, among other things.
The FISA extension is the one controversial item that got stuck in. Speaker Johnson initially said he’d support an extension to February, then rejected an extension entirely, before agreeing to the extension to April that’s now in the bill.
The Senate easily filed cloture on the NDAA on Tuesday by a final vote of 85-15. Sen. Rand Paul (R-KY) filed an “out of scope” point of order that would remove the FISA extension, because it was not in the House or Senate versions sent to the conference committee. Senators were expected to waive that point of order and pass the final bill late Wednesday afternoon.
UPDATE: The Senate waived Sen. Paul’s point of order, keeping the FISA extension in the NDAA, by a 65-35 vote on Wednesday evening. The Senate then passed the NDAA, 87-13.
The House, in a display of confidence, expects to pass the bill under suspension of the rules, which would require a two-thirds vote. That makes it possible that a strong no vote by the CPC, along with the far-right members angered both by the loss of the social policy riders and by the extension of FISA Section 702, could block passage, at least temporarily. This is unlikely, however, given the strong pull of the defense industry in Congress and the shared desire of virtually everyone involved to go home for the holidays.
This story has been updated to reflect the fact that the CPC has opposed the NDAA due to topline spending on several prior occasions.
