The Senate advanced a controversial surveillance bill on Thursday afternoon by a 67-32 vote, as leaders race to fight off attempts to change it that could result in a lapse over the weekend.
The vote to break a filibuster on a law extending and reforming the Foreign Intelligence Surveillance Act’s section 702 authority sets up a crucial showdown before the Saturday expiration of the program. Critics of the authority, which allows warrantless surveillance of foreign targets, want major changes designed at making it much tougher to access American information that is swept up in the program. They also want to strike House language updating which data providers’ information could be used in the program.
Due to Senate procedure, the spy powers law will expire on Saturday without agreement from all 100 senators to vote more quickly. That in mind, Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell must craft a deal that sets parameters on amendment votes and debate time in order to pass the legislation before the deadline.
And changing the two-year extension at this late stage would require the House to vote again on it before Saturday, an arduous exercise that could result in a lapse due to the tight timetable. If the Senate changes the bill, “we run the real risk of FISA expiring,” said Sen. Marco Rubio of Florida, the top Republican on the Intelligence Committee.
The fight over surveillance is creating unusual bipartisan coalitions and is likely to lead to a series of challenging Senate votes. Libertarian-leaning lawmakers in both parties want significant alterations — mainly centered on the data provider issue and more warrant requirements when the intelligence community accesses American information — while backers of the Intelligence Community are warning their colleagues not to play around with the bill with such little time to spare.
Senators in both parties are making a last-minute push to strip out an amendment from the House that would make changes to the law over which data providers must comply with the FISA program. In an interview, Sen. Ron Wyden (D-Ore.) said there’s been no debate about the provision within the Intelligence Committee.
“It was snuck in at the last moment and it’s a massive increase in the number of people that could be forced by the government to be spied on,” Wyden said.
Wyden and Sen. Josh Hawley (R-Mo.) said they would insist on a vote to cut that language before moving forward. Both expressed concern that the amendment text is too opaque; Hawley said “it needs to be stripped out.”
Neither said they want the program to shut down over the weekend but would demand that the Senate vote on their amendment before moving forward. Rubio and Senate Intelligence Chair Mark Warner (D-Va.) said they supported keeping the House language, a sign the amendment may struggle to pass.
The Biden administration is spending the week reassuring senators that the bill would not expand the scope of who can be targeted. Biden officials briefed senators on Wednesday and Thursday about the change and reiterated that point, according to a person familiar with meetings.
Attorney General Merrick Garland also wrote to Senate leaders with an explanation of the change. He called it “narrowly tailored” and included an attached explanation asserting it would be unlawful to use the new definition of “electronic communication service provider” to target businesses or private entities.
“It’s really a technical change, but it’s really quite important,” Rubio said. “As people become informed on it, I think a lot of the opposition will melt away.”
Wyden dismissed that explanation, but there are issues beyond that. Other senators argue the bill’s incidental collection of Americans’ information should be much harder for the government to access. Opponents of the legislation want votes on amendments that would require a warrant for that information and another that would prohibit the collection of it altogether.
Senate Majority Whip Dick Durbin (D-Ill.) said he’d like a vote on the warrant requirement, a sign of the unusual coalitions when it comes to government surveillance programs.
Senators also disagree on what it would even mean if the program expires, especially after a court granted an extension of the surveillance powers into 2025. Warner and Rubio say that companies may cooperate less with the FISA program if there’s an expiration of the law, though Sen. Rand Paul (R-Ky.) calls that argument “scaremongering.”
