After an apparently bitter party meeting that saw no agreement reached on how to bridge a divide on overhauling a controversial intelligence-gathering law, House Republicans decided Monday night to simply punt on the issue.
The top two Republican and Democratic members who had written one bill had already testified at a House Rules Committee hearing, and supporters of a competing bill were supposed to start testifying when chair Tom Cole (R-Okla.) said his committee would not be sending either of the bills to the floor.
That means instead of a showdown over two distinct paths to take to revamp so-called Section 702 authority — the power to keep tabs on foreigners outside the U.S. suspected of spying, which has been misused to sometimes track American citizens — there will now likely only be a vote to extend the existing law, which expires Dec. 31.
A provision to do that was included in the 3,000-page-plus annual defense policy bill that is expected to be passed by both the House and Senate later this week. It would extend the authority through April 10.
The competing House bills came out of two committees, but both were passed on a broad bipartisan basis. The Judiciary Committee bill was passed on a 35-2 vote while the bipartisan bill in the Intelligence Committee was passed by a voice vote, which is usually used only for non-controversial bills and means no roll call was taken.
The Monday night punt came as a surprise as at least one of the bills was expected on the House floor this week. But a party meeting Monday reportedly went off the rails amid sniping among proponents of each bill.
The chair of the House Intelligence Committee said a provision in the Judiciary Committee bill would make it more difficult to prosecute child pornography, a claim that led one of the allies of the Judiciary chair to call him a liar, according to one account. Opponents of the Intelligence Committee bill have said it could lead to WiFi providers such as coffee shops and hotels being forced to help the government spy on Americans.
Prior to the decision to yank them, Rep. Thomas Massie (R-Ky.), a member of the Rules Committee, sounded skeptical about letting both bills get a vote.
“I’ve never seen us bring multiple bills at the same time from different committees and put them on the floor and have a beauty pageant,” he said at the Rules Committee meeting. “I think that would set a horrible precedent for legislating.”
The fight’s origins go all the way back to the Sept. 11, 2001, terrorist attacks and the U.S. response. Afterward, the George W. Bush administration began a massive program that included illegally intercepting communications between Americans and suspected foreign terrorists without getting warrants.
Section 702 was the result when Congress, in 2008, approved some of those activities after the fact. The program, last renewed in 2018, has long been controversial because of its origins and because of the way it lets federal agencies formulate their surveillance requests to conduct what critics call “backdoor searches” on U.S. citizens.
Federal counterintelligence agencies have said they’ve narrowed their use of Section 702 in response to privacy concerns. The number of database queries including “U.S. persons” fell by 93% from 2021 to 2022, a group of officials told Congress in June. But the number of queries still totaled about 200,000.
Elizabeth Goitein, senior director of the Liberty & National Security Program at the liberal Brennan Center for Justice, said the Judiciary Committee bill was the only one of the two bills that provided needed changes, not the Intelligence Committee’s bill.
“They are pretending that it’s a reform bill. And that’s what’s so offensive, because it isn’t a reform bill at all,” Goitein said.
In the Senate, bipartisan coalitions similar to those in the House also exist.
Speaking on the Senate floor, John Cornyn (R-Texas) defended Section 702 while acknowledging it had been abused.
“Instead of nixing it, we need to fix it,” he said, adding that the extension will give lawmakers more time to come up with a solution.
“We don’t want to create inadvertently loopholes that can be exploited by adversaries or hamper law enforcement’s ability to hold criminals accountable,” Cornyn said.
But Goitein said an extension was actually not needed, given the annual increments in which the federal court that oversees Section 702 approves surveillance requests. Even after Dec. 31, she said, the government could keep collecting data for current investigations into the spring and then get another yearlong extension.
“So a four-month extension will automatically become a 16-month extension, which will take all of this into April 2025,” she said.
“And that is unconscionable, given the abuses of this authority that we’ve seen.”