Senate Demurs on House-Passed FISA Reauthorization; Sends House A Clean Extension

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Even though the House passed the “USA FREEDOM Reauthorization Act of 2020” (H.R. 6172) to reauthorize three expiring Foreign Intelligence Surveillance Act (FISA) provisions, the Senate declined to act immediately on the bill and opted instead to send a 77-day extension of these now lapsed authorities to the House, which is currently in recess.

Last week, on March 12, the Senate started the process of invoking cloture on H.R.6172 before the business records exception, roving wiretaps, and the “lone wolf” provision lapsed on March 15 when the current authorization ended. The Senate scheduled a vote to invoke cloture on the motion to proceed to the bill at 5:30 pm on March 16. Thereafter, on the floor, Senator Mike Lee (R-UT) twice asked for unanimous consent to pass a clean 45-day extension of the expiring FISA authorities and then the consideration of amendments to H.R. 6172 offered by Members looking to reform and limit FISA, but Senate Intelligence Committee Chair Richard Burr (R-NC) objected to each request.

Ultimately, instead of proceeding with the cloture vote on the motion to proceed to H.R.6172, Senate Majority Leader Mitch McConnell reached agreement with Lee and other Senators looking to reform FISA to debate H.R.6172 at some point to be determine in the future with only the three following amendments in order as well as side-by-side amendments:

  • Lee’s on “amicus reforms and exculpatory evidence;”
  • Senator Rand Paul’s (R-KY) “on rights of Americans;”
  • Senator Steve Daines’ (R-MT) “on Section 215 web browser/search history data collection prohibition”

However, each amendment would need 60 votes to be adopted instead of the usual majority threshold.

After this agreement was reached, S. 3501 was passed by unanimous consent that would extend the expired FISA authorities until May 30, 2020 and would make them retroactively effective as of March 14, thus eliminating the lapse in authorization.

It remains to be seen what the House will do as it is in recess and will convene tomorrow for a pro forma session at which any Member present could object, thus holding up an extension.

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