FISA renewal in jeopardy amid resistance from Republicans and progressives

Speaker Nancy Pelosi and top Democrats are making a last-ditch attempt to salvage a bill to renew expired surveillance tools Wednesday amid mounting opposition from Republicans and liberals in their own party, but it’s still unclear whether the gamble will succeed.

Hours ahead of the scheduled floor vote, Pelosi and her top deputies were still whipping their members, with a growing number of progressives privately saying they would oppose the bill, according to people familiar with the discussions.

Pelosi told Democrats on a private caucus call Wednesday morning that they were still counting votes and hoped to have an update soon. But several senior Democratic aides were already predicting that leadership could yank the bill from the floor given the lack of support in both parties, or that the rule for considering the legislation would fail to win enough support to pass, tanking the underlying legislation.

“We’ll act upon it today one way or another,” Pelosi told reporters as she left the House floor, although she wouldn’t predict whether the measure would pass or what version of the legislation would be considered.

“We’ll see, we’ll see,” Pelosi added.

The House Rules Committee passed the Senate-version of the bill by party line vote, setting the stage for some drama on the floor.

Troubles with the bill emerged late Tuesday, with the threat of a veto from President Donald Trump that prompted House Minority Leader Kevin McCarthy (R-Calif.) to personally ask House Majority Leader Steny Hoyer (D-Md.) to pull the bill.

Then there was a revolt from within the Democratic Party itself, with a key senator forcefully coming out against the legislation. The opposition of Sen. Ron Wyden of Oregon — a fierce supporter of privacy rights on the internet — quickly fueled angst among the party’s liberal wing, which was already uneasy about the legislation.

And on Wednesday morning the Department of Justice formally came out against the legislation, a striking reversal given that Attorney General William Barr helped negotiate key privacy provisions in the bill, which passed the Senate earlier this month.

“I think there’s a combination of [reasons] why FISA should take a pause,” McCarthy said at a Wednesday news conference with other GOP leaders. The California Republican said he believes investigations into alleged FISA abuses inside the FBI during the 2016 presidential campaign should be completed before any vote takes place on reauthorizing the legislation.

“I’m interested in making sure the FISA court has reform and is able to sustain itself, that it’s looking at foreigners and not Americans,” he said.

McCarthy also noted that both Trump and Barr have raised concerns about the legislation. “It won’t be signed into law. The president has questions, the attorney general has questions,” McCarthy added.

House Minority Whip Steve Scalise (R-La.) and GOP Conference Chairwoman Liz Cheney (Wyo.) also oppose the measure.

But Rep. Zoe Lofgren (D-Calif.), who has helped shape the bill from the start, seemed to brush aside Barr’s objection on Wednesday morning, arguing that he has a “very expansive view of executive power.”

“He’s entitled to his view, but we’re the legislative branch,” Lofgren said during the Rules hearing. “We are the ones who decide what protections to put in place, and I think if we’re able to come together to accomplish that, it would be a service to the country.

Rules Committee Chairman Jim McGovern (D-Mass.) also criticized Trump’s tweet undermining the bipartisan compromise on FISA, prompting Republicans to pull their support. “Late night tweets are not a way to govern,” McGovern said.

Hoyer told Democrats on the caucus call Wednesday morning that leadership still wants to pass the surveillance bill this week, noting he, Pelosi and others were still working to find a path forward, according to aides familiar with the call.

Though the conflict over the so-called FISA reauthorization vote has stretched for months, the latest rupture began over a proposal by Wyden to block the FBI from collecting the web browsing data of Americans. Wyden’s plan failed by a single vote in the Senate, but Lofgren negotiated with House leaders to bring it up for a House vote when the chamber considered the broader bill.

But Lofgren also negotiated a deal with House Intelligence Chairman Adam Schiff (D-Calif.) to tweak the language to narrow the restrictions on the FBI, a deal that infuriated Wyden and left him and other progressives calling for the defeat of the measure.

Pelosi later Wednesday pulled that amendment out of the bill, saying, “We have to have a bill. We have to have it signed.”

She praised the Senate version of bill, calling it “more progressive” than original measure.

Opposition from the left resulted in an unusual alliance, with Trump allies who oppose the FBI’s request for FISA reauthorization over claims it was abused to monitor figures on Trump’s 2016 campaign.

Some proponents of the current FISA bill — including conservative Republicans who have long sought to rein in government surveillance powers — said the fierce backlash demonstrated the potential power of the reforms.

“You can tell we’re getting to actual reform, not just by the allies, but by the opponents,” Rep. Warren Davidson (R-Ohio) said during a remote hearing of the Rules Committee on Wednesday. “I’d vote for it.”

The vote, if it takes place on Wednesday as planned, would also mark the first time that dozens of House lawmakers will vote by proxy on the floor amid the coronavirus pandemic.

As of Wednesday, 71 of 233 Democrats — about 30 percent of the caucus — were planning to vote by proxy from their districts.