After weeks of high-stakes negotiations and a pair of failed votes overnight, Congress on Friday passed a short-term extension of the United States’ warrantless spying powers, punting the expiration of the controversial program another 10 days.
Now, the real talks begin.
A House Republican, who was granted anonymity to discuss the private deliberations, told MS NOW that bipartisan conversations are underway to usher through a roughly 18-month extension of section 702 of the Foreign Intelligence Surveillance Act — the section allowing the government to conduct surveillance of foreign persons outside the U.S. — with some modest changes.
The bipartisan Problem Solvers Caucus, led by Reps. Brian Fitzpatrick, R-Pa., and Tom Suozzi, D-N.Y., has been involved in the talks, the lawmaker said, as members search for a compromise amenable to Democrats and Republicans. The co-chairs of the caucus have been working with their respective leadership to build consensus.
If successful, the talks would build a bipartisan coalition to adopt a procedural rule to bring the FISA extension to the House floor, the member said, which has been a key challenge for leadership as it looks to extend FISA.
“The adults are now gonna step up,” the House Republican said.
The White House has also been reaching out to Democrats to try and find a bipartisan path to extend FISA, a House Democrat told MS NOW.
But time is ticking.
The short-term extension, which the House then Senate approved by unanimous consent on Friday, kicks the FISA deadline to April 30, giving lawmakers less than two weeks to strike a deal on one of the most complex issues Congress handles.
Section 702 of FISA allows the government to spy on foreigners located outside the U.S., a key authority enacted after the 9/11 terrorist attacks. In that process, however, information pertaining to Americans in contact with those foreign targets is routinely swept up, prompting concern among privacy hawks on Capitol Hill.
For years, those lawmakers have pushed for a warrant requirement to access information on Americans, which the intelligence community largely has opposed.
The issue has prompted strange bedfellows on Capitol Hill, with several Democrats and Republicans on the House Judiciary Committee — from Rep. Pramila Jayapal, D-Wash., to Warren Davidson, R-Ohio — teaming up to push for a warrant amendment. But on the other side of the issue are Republicans and Democrats most concerned about national defense.
The entire debate has united unique factions — and has done so for years.
In 2024, Congress approved more than 50 changes to FISA’s section 702. And this year, privacy hawks from both parties want more changes, despite pressure from President Donald Trump to extend FISA.
The bipartisan talks on Capitol Hill come after the House suffered two bruising losses overnight Friday, a one-two punch that dealt a blow to House Speaker Mike Johnson, R-La., and catapulted the FISA talks back to square one.
First, following nearly two full days of delays, Johnson unveiled a proposal to extend FISA for five years, only instituting harsher penalties for abuses of the law as a small sop to the privacy hawks. (The bill also included some language pertaining to warrants, but was mostly a restatement of current law.)
After all their negotiations, Johnson put forward a bill that privacy hawks were clear they would oppose. The speaker went forward anyway, hoping the prospect of angering Trump would keep his conference in line.
The gambit failed, with the House rejecting a procedural vote for Johnson’s plan, 200-220. Twelve Republicans broke ranks to join most Democrats in opposition, though three Democrats voted “yes.”
For Intelligence Committee members, the warrant language created an additional barrier for FISA users that would hamper U.S.’ national security. But for privacy hawks, the warrant provisions didn’t go far enough to address their concerns.
“Schrödinger’s Amendment: Some felt it was a massive reform that would make FISA unworkable. Others felt it did nothing of substance. Both cannot be true,” Davidson, a privacy hawk, wrote on X after the vote.
Shortly after, the House failed to adopt a procedural rule that would have kicked off debate on the clean, 18-month extension of FISA, with the vote breaking 197-228.
Republican opposition was even larger on that vote: 20 GOP lawmakers, all privacy hawks, broke ranks and opposed the proposal, a rebuke of the underlying bill’s lack of a warrant requirement or other reforms.
“Without a suitable warrant requirement, FISA will not be reauthorized. The foreign part of the foreign intelligence surveillance act is an essential tool for national security. It should be reauthorized. We are very close to making both happen,” Davidson said later Friday morning.
But in a rare move, four Democrats — one Intelligence Committee member and three moderates — voted for the procedural rule, a highly unusual step that was not enough to outweigh the substantial GOP opposition.
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After the vote, Johnson said the House was “very close tonight,” expressing confidence they would find consensus soon.
“There’s some nuances with the language and some questions need to be answered, and we’ll get it done,” the speaker told reporters. “The extension allows us the time to do that.”
“What we’re trying to do is thread the needle of ensuring that we have this essential tool to keep Americans safe, but also safeguard our constitutional rights, and making sure that the abuses of FISA in the past are no longer possible,” Johnson said.
“If you ask everybody on that floor, there’s probably that many opinions on how those things should be changed,” he added.
Still, the pair of failed votes underscore the difficult issue that is FISA. And it forecasts the uphill battle Congress will face over the coming days.
By Friday afternoon, neither side was ready to relent.
“When you have people that don’t understand FISA writing on the back of a napkin in Cajun at 11pm, don’t be surprised when the serious policy people that actually understand 702 say no,” the anonymous House Republican told MS NOW.
Another GOP lawmaker, who also requested anonymity to discuss the sensitive deliberations, made it clear that, in their eyes, reforms are needed or the legislation will fail.
“FISA reauthorization will only be successful if White House legislative affairs wakes up and realizes there will be serious reforms,” the lawmaker told MS NOW.
But it’s not just House lawmakers who have thoughts on FISA.
After the House sent over the short-term FISA extension, Senate Majority Leader John Thune, R-S.D., looked to pass the legislation on Friday by unanimous consent. But Sen. Ron Wyden, D-Ore., a privacy hawk, briefly held up business, wanting more time to review what transpired in the House overnight. In the Senate, a single lawmaker can object to a unanimous consent request and gum up the process.
Wyden relented less than an hour later, allowing Thune to successfully pass the bill through a voice vote. But he made it clear the Senate would not be a rubber-stamp for anything the House sends over.
“What we’ve done today increases the chance that the status quo caucus, which is what I call the people who for all these years have been business as usual, aren’t going to get what they want,” Wyden said. “And it’s very clear that a growing number of House members, both parties, growing number of senators, are not going to accept the straight extension here, period.”
“We’re going to fight the backdoor searches,” he added. “Going to fight the warrant thing.”
Thune, for his part, sounded amenable to some reforms. Asked about potential changes, he told reporters on Friday he thought there was “some openness to that.”
Still, he remained noncommittal on what sort of changes he, Republicans or the White House could accept.
“I mean,” he said, “it depends on what they are.”
Syedah Asghar and Jack Fitzpatrick contributed.
Mychael Schnell is a reporter for MS NOW.