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Senate leaders are struggling to pass a reauthorization of a warrantless surveillance program before tonight’s deadline

Senate in limbo over FISA, foreign aid ahead of planned recess

Hello Senate Friday, is that you?

Senate leaders are struggling to pass a reauthorization of a warrantless surveillance program before tonight’s deadline as they look to avoid potentially difficult votes on amendments.

Several senators in both parties are demanding votes on amendments to the bill, which reauthorizes Section 702 of the Foreign Intelligence Surveillance Act. But a problem is emerging for Senate leaders on both sides and the White House — some of those amendments could actually be adopted.

Of course, if the Senate changes the House-passed bill in any way, it must go back across the Capitol for another vote. What’s more, the White House strongly opposes the changes being discussed, including the establishment of new warrant requirements for data on U.S. persons swept up in surveillance operations targeting foreign nationals outside the country.

So Senate leaders are wary of allowing votes on these amendments, especially at a lower threshold for passage, even if it means they can’t reach a unanimous consent agreement to pass the bill before tonight’s deadline. The alternative is to run out the clock and ensure that no amendments can get floor votes. But this would result in a temporary lapse in the program.

In the meantime, Senate Majority Leader Chuck Schumer said there will likely be additional procedural votes today.

White House worries: Top Biden administration officials have spent all week lobbying senators against the proposed amendments to the bill, even passing around memos that accuse senators from their own party of threatening U.S. national security by gutting the 702 program.

But their efforts have done little for those who believe the two-year FISA reauthorization bill represents a dramatic and unconstitutional expansion of the government’s spying powers.

“I’d much rather have a long-term bill that shows both security and liberty can co-exist,” said Sen. Ron Wyden (D-Ore.), a longtime privacy hawk and critic of the warrantless surveillance program.

Strange bedfellows: A fascinating right-left alliance has formed on each side of this debate.

Senate Intelligence Committee Chair Mark Warner (D-Va.) and Vice Chair Marco Rubio (R-Fla.) have partnered with Senate leadership and the Biden administration to get this legislation across the finish line as quickly as possible without any changes.

“Some of [the amendments] actually undermine the program, and others are unnecessary,” Rubio said.

On the other side is a sizable group of privacy hawks and civil libertarians stretching across the ideological spectrum — everyone from Sens. Mike Lee (R-Utah) and Rand Paul (R-Ky.) to Wyden, Senate Majority Whip Dick Durbin and Sen. Jon Tester (D-Mont.).

On foreign aid: There’s another advantage, albeit a hidden one, for Senate leaders here if they drag out the FISA process through the weekend.

On top of eliminating the risk that any amendments are adopted, such a tactic would also allow Schumer to immediately tee up the House’s foreign aid package, which is scheduled to get a vote in the House on Saturday.

The usual caveats apply here. The Ukraine-Israel-Taiwan aid package is far from a slam dunk right now in the House. But keeping the Senate in session over the weekend gives Schumer additional flexibility in the event that the upper chamber needs to act.

Next week was supposed to be a scheduled recess. It’s also Passover on Monday, and several senators are scheduled to travel out of the country on CODELs.

Yet senators are operating under the assumption that they’ll be in Washington if the House sends them a foreign aid package. Of course, it could take multiple days for the Senate to actually pass it given the expected objections from the GOP side.

So it’s entirely possible that the entire recess could end up getting canceled.

— Andrew Desiderio

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