Speaker Mike Johnson is rolling the dice as he prepares to bring his conference’s increasingly bitter spy fight to the floor. It’s anybody’s guess how it plays out.
The House is expected to vote Tuesday on two competing proposals from the Judiciary Committee and the Intelligence Committee to reauthorize Section 702, a surveillance authority that’s meant to target foreigners abroad but has come under criticism because of its ability to sweep in Americans. Unlike the Intelligence panel version, the Judiciary bill includes a broad warrant mandate, which security hawks have said would essentially hamstring the program.
Typically, the speaker would greenlight one bill to head to the floor and whip his conference to get in line. But Johnson, rather than pick between two influential committee chairs, is using a rare procedural gambit known as “Queen of the Hill” to settle the fight — which means whichever bill can get the most votes on the floor will be passed and sent to the Senate. Because of how the battle lines break down, they’ll need help from Democrats either way.
And it’s not the only spy battle on Johnson’s plate this week. After he attached a short-term extension of the surveillance authority to the sweeping defense bill Congress is looking to pass by the end of the week, conservatives increasingly urged their colleagues to sink the must-pass legislation.
The spy fight comes with familiar warning signs for Johnson, sandwiching him between two sides of the House GOP. On one hand he’s got the intelligence community and its allies on Capitol Hill, warning against defanging what they view as a crucial national security tool. On the other, some right-flank leadership gadflys — who have become increasingly willing to criticize the speaker they helped elect less than two months ago — are some of the loudest voices pushing for a sweeping overhaul of the surveillance authority
Rep. Dan Bishop (R-N.C.), who backs the Judiciary bill, had a recent warning for Republicans who are OK with repeatedly working with Democrats to leapfrog over the concerns of conservatives like him. They “will be asking for the consequences in terms of an absence of Republican unity and the political implications,” he said.
“I think some people need to be primaried out of their seats,” he added, when asked about what those political consequences would be.
The GOP debate is likely to come to a head on Monday night, when members will huddle for a special closed-door meeting on proposed changes to the surveillance law. Some in the conference are hoping they can find an 11th-hour off-ramp that would represent a compromise between the two sides. But given the steep differences between the House Intelligence and Judiciary bills, that appears unlikely.
Intelligence and Judiciary Committee Republicans worked behind the scenes for months to try to find a way forward that could unify the conference. They both are proposing changes to the shadowy surveillance court, new auditing and reporting requirements aimed at increasing transparency and new penalties for surveillance violations. But the two bills are starkly different on what was long expected to be the major point of contention: When a warrant should be required for searching 702-collected data for Americans’ information.
The Judiciary bill would require a warrant for nearly all U.S. person searches, though it has some built-in exceptions. Meanwhile, the Intelligence Committee bill forbids the FBI from conducting so-called “evidence of a crime” searches, which aren’t related to foreign intelligence and are a small subset of searches involving Americans.
The two sides are both preparing for a fight in Monday night’s private conference meeting, knowing it’s likely their closing pitch.
In a preview of what Intelligence Committee members are likely to say to GOP members, Chair Mike Turner (R-Ohio) warned that the Judiciary bill would would make 702 information inadmissible for “horrific crimes such as child pornography, human trafficking, murder, and even money laundering” because of how it changes how 702-collected information can be used in cases and investigations of non-national security crimes.
“These are provisions of their bill that they’re going to have to explain,” he added during an Intelligence Committee meeting late last week.
Meanwhile, supporters of the Judiciary Committee bill and privacy advocates off of Capitol Hill have been sounding an alarm over what they warn would be a dramatic expansion of businesses required to provide the government with communications data under the Intelligence Committee bill. That was first flagged on Friday by two lawyers, including one who serves on a group of outside advisers to the secretive surveillance court.
Intelligence Committee staffers called that interpretation “wildly off,” and that the section is meant to be narrowly tailored to a “high-priority foreign intelligence targets overseas, with no impact on Americans.” But it’s fired up privacy hawks both in and out of Congress, with Rep. Warren Davidson (R-Ohio), who backs the Judiciary bill, warning: “Just what the Biden Admin needs, more surveillance authorities to spy on US citizens.”
Johnson hasn’t yet taken a public side in the debate — and isn’t expected to before Tuesday’s votes. But Johnson’s been quietly involved behind-the-scenes, keeping in touch with both Turner and Jordan, and members of their committees, in the lead up to Tuesday’s votes.
Jordan had initially been expected to hold a committee vote on his bill the week of Nov. 27. But the Ohio Republican said that he delayed because Johnson wanted to first have a meeting with Director of National Intelligence Avril Haines, former Director of National Intelligence John Ratcliffe and Republican members of the two committees so they could talk through 702. That request, plus a full committee calendar for the rest of the week, punted the panel’s vote until last Wednesday, according to Jordan.
At the same time, Johnson’s kept conservatives guessing in the surveillance fight, who have urged him to de-link it to the defense bill. His right flank appeared to think last week that they had succeeded, including publicly congratulating him on the decision, only to have to backtrack after it was ultimately added. Meanwhile, Johnson held off pressure from intelligence community allies to attach a full reauthorization to the defense bill.
And while Republican aides believe Johnson’s natural inclination leans more toward the Judiciary side of the debate, they acknowledge his calculus could have changed now that he’s in leadership and has access to a wider range of intelligence information.
“We are focused on the policy. We’re not focused on slogans you can fit on a bumper sticker,” said Rep. Brian Fitzpatrick (R-Pa.) “We’ve met with him and he’s been a great listener. … He’s not disagreed with anything we’ve said.”
