The House of Representatives on Wednesday did not vote on a surveillance bill after President Donald Trump tweeted his displeasure with the legislation. The fate of the bill is now up in the air, as are the fates of potential amendments to protect Americans from unwarranted surveillance by federal law enforcement.
The USA Freedom Reauthorization Act of 2020 (H.R. 6172), had already passed the House once with two-thirds majority support from Democrats and Republicans. The original bill renewed surveillance authorities that expired in March, but it also included some modest reforms: the March version of the bill prohibited the FBI and National Security Agency (NSA) from mass-collecting and accessing our internet and phone metadata, and it expanded the ability of the secretive Foreign Intelligence Surveillance Act (FISA) Court to bring in independent experts to advocate for the constitutional rights of Americans targeted for surveillance.
The bill then went to the Senate, where some toothier civil liberties amendments were proposed and blocked (most notably: one to forbid the collection of Americans' browser and internet search histories and one to entirely forbid the FISA Court from authorizing surveillance of Americans).
The Senate then voted the bill back to the House, where Reps. Zoe Lofgren (D–Calif) and Warren Davidson (R–Ohio) worked to draft their own version of one of the failed Senate amendments. But after Wednesday morning's Rules Committee hearing, it became apparent that the Lofgren-Davidson amendment would not be considered.
Then this tweet from President Donald Trump happened, and everything changed:
If the FISA Bill is passed tonight on the House floor, I will quickly VETO it. Our Country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!
— Donald J. Trump (@realDonaldTrump) May 27, 2020
The shift in subsequent voting was rather remarkable to watch live. On Wednesday evening House members voted whether to accept the debate rules prior to a vote on the bill (the rules would accept the amendment that the Senate approved but not any new ones introduced in the House yesterday).
Suddenly, Republicans who had voted in favor of the bill back in March turned against it: 183 Republicans voted against the debate rules. Not one Republican voted in favor. Rep. Justin Amash (L–Mich.) also voted against moving the bill to debate.
But because the Democrats control the House, there were still enough votes for the motion to pass. 228 Democrats voted to push the bill forward. But this was hardly a victory. Last time H.R. 6172 came up for a vote, 75 Democrats voted against it, primarily because they wanted more protections for Americans against secret surveillance. If Republicans all voted as a block against passing the bill, the Democrats wouldn't have enough votes to overcome it.
And so Wednesday night the final vote never happened. The House instead recessed. This morning, House Majority Leader Steny Hoyer (D–Md.) announced the bill had been yanked:
New: Majority Leader Hoyer says he is pulling consideration FISA reauthorization bill. "The two-thirds of the Republican party that voted for this bill in March have indicated they are going to vote against it now. I am told they are doing so at the request of the President." pic.twitter.com/J8NkYsUEHk
— Dustin Volz (@dnvolz) May 28, 2020
The good news is that there is now an opportunity to strengthen the reforms. In the Senate, the amendment to prohibit federal law enforcement from collecting Americans' internet browsing history failed by a single vote, and only because four senators, including Sen. Bernie Sanders (I–Vt.) were absent from voting. The House now has the opportunity to provide stronger protections and maybe reconsider the Lofgren-Davidson amendment or the even stronger amendment proposed by Sens. Ron Wyden (D–Ore.) and Steve Daines (R–Mont.).
On the other hand, negotiations could result in the bill being further weakened and watered down, despite Trump's stated preference for stronger protections. The Department of Justice has called for the veto of the bill precisely because it strengthens protections from unwarranted surveillance.
Davidson worried on Twitter this morning that despite what Trump says, negotiations could end with bipartisan proponents of the national security state getting what they want, while civil libertarians and privacy activists get even less.
There are reasons to be concerned about whether Trump actually wants stronger surveillance protections for all Americans. He rails regularly against FISA laws and the FISA Court because of the surveillance and investigation of his campaign staff in 2016, but when given the opportunity, he signed his name to a law that actually expanded the authority of the federal government to snoop on Americans.
Since signing that legislation in 2018, an investigation by the Department of Justice Office of Inspector General showed that not only did the FBI omit important information from its warrant application to snoop on former Trump aide Carter Page, the FBI regularly screws up its FISA warrant applications targeting any American it investigates.
So the question here will be whether Trump will stick to his insistence that surveillance protections for all Americans be improved or whether he can be satisfied with reforms that are specifically focused on political surveillance. Rep. Paul Gosar (R–Ariz.) had submitted an amendment to require the attorney general to inform the leaders of the House and Senate when a person associated with a candidate for president is the target of FISA surveillance. In the Senate, Majority Leader Sen. Mitch McConnell (R–Ky.) has attempted to restrict the ability of the FISA Court's independent amicus curiae advisor to advocate on behalf of Americans targeted for surveillance, unless the surveillance targets in need of defending are candidates for federal office or suspected of violating the Foreign Agents Registration Act.
What McConnell and Gosar are doing can be read as currying favor with Trump or simply placating him, but either way, there's no reason to deprive all Americans of these protections—unless you're not actually serious about restraining the ability of the FBI to secretly snoop on Americans.
Privacy groups appear happy that the bill has been yanked. Daniel Schuman, policy director of left-leaning group Demand Progress, put out a statement this morning responding to the attempt by Democratic leaders to blame Republicans for the bill's stall, telling them they need to look within their own party as well.
"Democratic leadership is blaming Republicans on FISA, but Speaker [Nancy] Pelosi blocked pro-civil-liberties amendments and stymied reforms over the last year, including yesterday," Schuman said. "That's why she doesn't have the votes—she hasn't earned them."