Making sense of FISA's strange bedfellows in Congress

It may seem as if the tectonic plates of American politics are moving inexorably apart from one another, propelled as much by a zero-sum sense of partisanship and radicalization as by any sincere ideological differences. With Republicans increasingly under the sway of former President Donald Trump's MAGA influence, and Democrats grappling with an unexpectedly effective movement from its leftmost flank, it feels like there's less space for bipartisan aisle-crossing than perhaps at any other time in recent memory. Nevertheless, there are rare moments of comity between even some of the most ostensibly incompatible lawmakers; perhaps nowhere has that harmony produced stranger bedfellows than in the ongoing debate over section 702 of the Foreign Intelligence Surveillance Act (FISA).

This week, a group of adamant House Republicans joined Democrats in tanking a procedural vote to renew the controversial law, which allows U.S. intelligence agencies to assess information about American citizens without a warrant when picked up in surveillance sweeps of foreign entities. The group's opposition to the FISA renewal is motivated in part by former President Donald Trump's urging to "KILL FISA" for having been "ILLEGALLY USED AGAINST ME." But it also stems from longstanding frustrations with House Speaker Mike Johnson (R-La.) and a larger, unexpected alliance between congressional conservatives and leftists over allegations of government overreach and invasions of privacy. How has FISA, perhaps more than any other recent piece of high-profile legislation, brought together lawmakers from both the House Freedom Caucus and Progressive Caucus?

'Odd bedfellows'

"Leading the Republican opposition" to this week's FISA reauthorization vote were "three members of the House Freedom Caucus," the National Review said. Theirs is a "coalition of hardline conservatives and progressives" that has "objected to the warrantless monitoring of American citizens made possible by loopholes in FISA section 702." Because it does not "break along party lines," the debate over renewing FISA has created a series of "odd bedfellows on this legislation," Politico agreed. Judiciary Chair Jim Jordan (R-Ohio) and ranking Democrat Jerry Nadler (D-N.Y.) are on one side of the issue, while Intel Chair Mike Turner (R-Ohio) and the Biden administration are on the other.

Of particular concern to opponents of how FISA currently operates is the law's allowance of American citizens to be caught up in surveillance without requiring a warrant, as well as the potential that any data captured could then be sold to third-party law enforcement officials. Speaker Johnson "once supported a warrant requirement and also voted for an amendment that would bar intelligence and law enforcement agencies from purchasing Americans' private information" but has since becoming speaker largely rejected reforming FISA, former Freedom Caucus Chair Rep. Andy Biggs (R-Ariz.) said to far-right outlet Breitbart.

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For his part, Biggs had partnered with Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) to whip their colleagues into opposing Johnson's effort to make FISA's section 702 "must-pass" legislation, thereby denying "floor votes on crucial reforms to protect the privacy rights of Americans." 

Similarly, Rep. Zoe Lofgren (D-Calif.) and Rep. Warren Davidson (R-Calif.) — coming from Progressive and Freedom caucus backgrounds respectively — have introduced legislation to re-authorize FISA with "key new protections against documented abuses and new accountability measures when abuses occur."

 'Too important to national security'

After a portion of his own party scuttled this week's vote, Johnson insisted the Republicans would "regroup and reformulate" another plan for reauthorizing FISA, calling the measure "too important to national security" to be allowed to expire. That significance, however, hasn't stopped some lawmakers from resorting to partisan bickering amid bipartisan calls for reform. House Intelligence Committee Chair Mike Turner (R-Ohio) has lashed out at Davidson and Lofgren's cooperation as "not a 'conservative' issue," calling their proposed amendment a "left-wing bill," Politico said. 

And some Republicans who have joined with Democrats against the FISA reauthorization did so in part thanks to Trump's urging — Rep. Anna Paulina Luna (R-Fla.) specifically cited Trump's frustrations with FISA in her statement justifying her "no" vote — even though there is "no evidence that the specific law at issue, section 702, has been used to spy on Trump or any of his campaigns," The Wall Street Journal said.