Republicans stare down a growing, neverending FISA crisis

Hill Republican leaders are finding themselves in a never-ending crisis over the fate of a government spy law that has unleashed a bitter, intraparty battle within the House while also threatening to derail a host of other GOP priorities.

Republicans now have scant legislative days to build new plans to extend Section 702 of the Foreign Intelligence Surveillance Act, or FISA. But President Donald Trump, GOP leaders and White House officials have failed to come up with a workable framework for months — and there is no agreement yet on the path forward.

Some House Republicans hope they’re in the final stages of massaging a multi-year extension that would incorporate some minor changes intended to pacify privacy hawks. Others are already predicting they’ll face the same internal schisms come April 30, when the current short-term extension runs out.

For many Republicans, the high-drama meltdown in the House was entirely predictable and has been months in the making, after Trump demanded a clean extension of the surveillance law despite well-documented skepticism within his own party.

“A trainwreck,” was how Tennessee Republican Rep. Andy Ogles described it, as he walked off the House floor in the pre-dawn hours of Friday morning. Speaker Mike Johnson had just tried and failed to secure a long-term reauthorization after days of ultimately fruitless negotiations across his conference.

“I don’t know how we solve it,” said one House Republican of the current impasse, granted anonymity to speak candidly.

It’s gotten to the point where Senate Republicans, who have until now largely taken a back seat on FISA, are warning they are prepared to grab the wheel if the House can’t figure it out.

“We’ve just got to have optionality here,” Senate Majority Leader John Thune said Friday of the path forward, shortly after clearing the House-passed, 10-day emergency Section 702 extension to avert a looming expiration. “I don’t know what the House is going to be able to do, and so we’ll be preparing accordingly.”

The task ahead of Republicans is only being compounded by the fact that this week was supposed to be about taking the first step in the Senate to advance a budget blueprint, necessary to begin the party-line reconciliation process that will deliver funding for the Department of Homeland Security’s immigration enforcement activities.

Trump has given Congress a June 1 deadline to get that reconciliation bill to his desk and reopen the long-shuttered DHS. Two people granted anonymity to discuss private scheduling said Senate Republicans will still be able to move the budget resolution this week as planned. But House Republicans will need to either quickly resolve their differences over the future of Section 702 or risk this policy fight colliding next week with expected disagreements over the scope of the reconciliation package.

Johnson, leaving the floor past 2 a.m. Friday after 20 Republicans voted down the procedural rule needed to advance his latest attempt to pass a long-term Section 702 reauthorization, said, “we were very close tonight.”

He chalked up the GOP rebellion to “some nuances with the language, and some questions need to be answered.” The emergency 10-day extension, he argued, gives Republicans more time to hammer out those pieces.

But Johnson will have his work cut out for him as he attempts to figure out how to satisfy conservative hard-liners who want more guardrails to prevent the warrantless surveillance of Americans. Trump has insisted on a clean reauthorization and has been resistant to more sweeping policy changes.

After Johnson unveiled legislative text of a five-year extension of the surveillance program late Thursday night, House GOP hard-liners quickly revolted over what one described as the “inexplicable five-year extension, the fake warrant requirement, and the walk back of the promise from this afternoon to include CBDC.”

The member was referring to central bank digital currency. Leaders previously promised ultraconservatives to secure a ban on it, and Section 702 holdouts now say a prohibition must be included as part of any spy power reauthorization deal. This particular policy battle has already stalled passage of bipartisan housing legislation.

Majority Leader Steve Scalise said in an interview near midnight Friday that House Republicans were “still working through” another legislative vehicle where they could potentially attach the CBDC ban. “We’re gonna find a place for it.”

That’s a tough sell, as some hard-liners have acknowledged that the White House isn’t on board with this plan, and Thune in an interview late last week warned its inclusion would erode support from Democrats whose votes will be needed to pass any Section 702 reauthorization in the Senate.

It doesn’t help that morale among House Republicans is under new strain.

When the speaker approached Rep. Andy Biggs (R-Ariz.), a leading opponent of government surveillance programs, on the House floor overnight Friday to secure an agreement for an emergency patch, Biggs let the speaker know a previous deal they had was “off,” according to three Republicans who heard it, who were granted anonymity to recount a private exchange.

More moderate House Republicans are losing patience with the standoff. One GOP centrist, granted anonymity to speak candidly, called the Friday floor meltdown “ridiculous” and that the speaker didn’t have “much of a plan to begin with.”

Rep. Don Bacon (R-Neb.) cautioned: “You’ve got to make a deal with the Democrats.”

Four moderate Democrats did help Republicans on a party-line vote paving the way for passage of a clean, 18-month reauthorization: Reps. Jared Golden of Maine, Josh Gottheimer of New Jersey, Marie Gluesenkamp Perez of Washington and Tom Suozzi of New York. But it was not nearly enough to offset the 20 Republican defectors.

Democrats face division within their own ranks, too. Sen. Ron Wyden (D-Ore.), a longtime privacy hawk, argued the House’s setback gave new momentum to a bipartisan coalition that wants more sweeping changes, including stronger warrant provisions.

“We’re going to pull out all the stops,” Wyden told reporters Friday after letting the stopgap pass on the Senate floor without objection. “We’re ready to go to the mat and fight for a full package of reforms.”

Yet back in the House, Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee, has been pushing for a clean extension. He was seen hustling around the floor Friday night talking to different Republican members, including GOP leaders and hard-liners.

At one point, Himes was overheard saying on a phone call in the speaker’s lobby he was in a rare position to be doing “shuttle diplomacy” between the speaker and House Freedom Caucus members.

“What I learned tonight was that Republicans don’t talk to each other,” Himes said later in an interview. “They sure as hell don’t talk to us — but they don’t even talk to each other.”