There's Only One FISA Reform Bill in the House, Senate and House to Consider, NDAA Conference Report, and a Hyperpartisan Impeachment Inquiry
Jason Pye - Director, Rule of Law Initiatives
Point of Order is a (mostly) weekly preview of key congressional activity for those with more than a passing interest in federal policy.
This is probably the last Point of Order for 2023: Unless something dramatic happens, and there are plenty of possibilities for drama this week, this will be the last Point of Order in 2023. I’m taking some time off to spend with my family, record some music, play video games, relax, and just be lazy. I also turn another year older on Christmas Day. I’m so looking forward to more aches and pains as I turn 43. I’ll also probably write some over at my other Substack where I posted something on Vivek Ramaswamy’s disgusting reference to the racist “Great Replacement theory.”
And it was good to get the band back together: Last week, Arnold Ventures and Puck News hosted a celebration for the fifth anniversary of the First Step Act, which became law in December 2018. It was so great to see so many friends and colleagues, including Kevin Ring, Holly Harris, Cortland Broyles, Carrie Glenn, former Rep. Doug Collins, Rep. Kelly Armstrong, Matthew Charles, Joe Luppino-Esposito, Frank Russo, Udi Ofer, Alice Marie Johnson, Daniel Landsman, and Greg Newborn. I know I’m leaving people who I saw out. It’s not intentional.
Schedule and suspensions: The House returns today at 2:00 pm for legislative business. No votes are expected today in the House. Votes on suspensions will be pushed to Tuesday. Legislative business will begin at 12:00 pm on Tuesday and Wednesday and at 9:00 am on Thursday. The last votes for the week are expected no later than 3:00 pm on Thursday. Thirteen (13) bills are expected to be considered under suspension of the rules. The cost estimates for those bills can be found here.
H.R. 3315, National Guard and Reservists Debt Relief Extension Act (Judiciary)
S. 2747, A bill to amend the Federal Election Campaign Act of 1971 to extend the Administrative Fine Program for certain reporting violations (House Administration)
S. 788, Duck Stamp Modernization Act (Natural Resources)
H.R. 2839, To amend the Siletz Reservation Act to address the hunting, fishing, trapping, and animal gathering rights of the Confederated Tribes of Siletz Indians, and for other purposes (Natural Resources)
H.R. 5119, Protect Small Business and Prevent Illicit Financial Activity Act (Financial Services)
H.R. 5524, Foreign Affiliates Sharing Pilot Program Extension Act (Financial Services)
H.R. 3224, Countering Weapons of Mass Destruction Extension Act (Homeland Security)
H.R. 5473, Promoting Resilient Buildings Act (Transportation and Infrastructure)
H.R. 6503, Airport and Airway Extension Act (Transportation and Infrastructure)
H.R. 1042, Prohibiting Russian Uranium Imports Act (Energy and Commerce)
H.R. 5378, Lower Costs, More Transparency Act (Energy and Commerce)
H.R. 4531, Support for Patients and Communities Reauthorization Act (Energy and Commerce)
S. 2787, 5G Spectrum Authority Licensing Enforcement (SALE) Act (Energy and Commerce)
Bills that come to the floor under suspension of the rules require two-thirds of members present and voting for passage. This is the most common way that bills considered by the House come to the floor. Some of these bills may be passed by a voice vote, rather than a roll call vote. Most bills that come to the floor under suspension aren’t widely considered controversial, although leadership may occasionally test a bill under suspension to gauge opposition or sneak a bill through the chamber.
NDAA is also on suspension: The conference report for the National Defense Authorization Act (NDAA) for FY 2024, H.R. 2670, is also slated for suspension. If NDAA fails on suspension, Speaker Mike Johnson (R-LA) and Republican leadership may put it on the floor. First, let me note that conference reports are generally not subject to amendment. (There’s at least one exception to this that I’m aware of, which is budget reconciliation, but that doesn’t apply in this instance.) Should NDAA fail on suspension, it would be sent to the House Rules Committee. The only real reason for Rules to get the bill is to waive applicable points of order. That play may not work well for Republican leadership if Reps. Thomas Massie (R-KY), Ralph Norman (R-SC), and Chip Roy (R-TX) vote against the rule providing for consideration of NDAA on the floor. We’re paying attention to this one because of the inclusion of an extension of Title VII of the Foreign Intelligence Surveillance Act (FISA). The proposed extension would run through April 19, but a little-known provision, described as “transition procedures in 50 U.S.C. 1801 note,” allows certifications to continue for 12 months after approval by the FISA Court. So, the reality is that this extension of FISA through April 19, 2024, really allows surveillance authorities to continue until April 2025. It’s a 16-month extension. By the way, Speaker Johnson did a bang-up job on this. After telling members that he would keep a FISA extension out of NDAA, he put it in. We’ve heard a specific staffer is to blame for convincing Speaker Johnson to include it. Due Process Institute will issue a vote alert urging members to vote NO on NDAA at some point today.
Rule bills: There’s a lot to explain about the rule bills this week, and I’ll have to use multiple sections to do it. The House Rules Committee will meet today at 4:00 pm to markup the rule providing for the consideration of the Ensuring Accountability in Agency Rulemaking Act, H.R. 357; the Whole Milk for Healthy Kids Act, H.R. 1147; the Protect Liberty and End Warrantless Surveillance Act, H.R. 6570, and the FISA Reform and Reauthorization Act, H.R. 6611. The House Rules Committee will meet again on Tuesday at 10:00 am to markup the rule providing for the consideration of a resolution directing certain committees to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Joseph Biden, President of the United States of America, and for other purposes, H.Res. 918.
Explaining the easy rule bills: The Ensuring Accountability in Agency Rulemaking Act would require, with limited exceptions, that the head of an agency appointed by the president and confirmed by the Senate sign any rule published in the Federal Register by that agency. The Whole Milk for Healthy Kids Act would allow students in schools participating in the National School Lunch Program to purchase whole, reduced-fat, low-fat, and fat-free flavored, and unflavored milk. Currently, students can purchase only unflavored fat-free and low-fat milk. The bill also excludes milk from saturated fat content calculations.
Now, on the process for consideration of the competing FISA bills: There are competing versions of FISA reauthorization, the House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act and the House Permanent Select Committee on Intelligence’s (HPSCI) so-called “FISA Reform” and Reauthorization Act. Speaker Johnson announced last week that the process for considering would be a so-called “Queen of the Hill” process. The bill that receives the most votes will be transmitted to the Senate.
About the competing FISA bills: The House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act is the actual reform and reauthorization bill. The Protect Liberty and End Warrantless Surveillance Act would bring a number of major reforms, including a warrant requirement for searches of Americans’ information collected under Section 702 by the FBI and closing the data-broker loophole exploited by the FBI and intelligence community to buy Americans’ information from third-party data brokers. The HPSCI bill’s version of “reform” is to codify existing policies and practices employed by the FBI and the intelligence community into law. Those policies and practices are often broken, so I don’t understand why HPSCI thinks codifying it is going to do anything. It’s tantamount to saying, “We’re serious this time.” We all know HPSCI doesn’t care. Oh, and the bill actually expands surveillance. Seriously, check out Section 504 of the HPSCI bill. It’s bad. Overall, the HPSCI bill would continue the worst abuses of FISA and may actually be worse than current law. Due Process Institute will issue a vote alert urging members to vote YES on the Protect Liberty and End Warrantless Surveillance Act and to vote NO on the HPSCI bill at some point today.
And a vote on a formal impeachment inquiry is coming: Never mind that the months-long investigation into President Biden hasn’t thus far uncovered any evidence of wrongdoing. That’s not going to stop House Republicans from bringing H.Res. 918 to the floor to formalize the impeachment inquiry that began under then-Speaker Kevin McCarthy (R-CA) back in September. It’s hyperpartisanship at its worst. H.Res. 918 directs the Oversight and Reform, Judiciary, and Ways and Means committees to continue their inquiry and establishes procedures for each committee. The resolution also deems the passage of H.Res. 917 to enforce subpoenas issued by the committees. We’ll note again that the allegations aimed at President Biden related to things that supposedly happened before he took office, which makes this an incredibly improper use of the House’s impeachment power, as described by Alexander Hamilton in Federalist No. 65. Even if the House produces and passes at least one article of impeachment, the outcome in the Senate is predetermined, and it’ll most likely be bipartisan when the Senate eventually dispenses with the House’s folly.
McCarthy is leaving Congress: In case you missed it, McCarthy announced that he’ll resign from the House before the end of the year. The expulsion of George Santos, McCarthy’s resignation, and the looming resignation of Rep. Bob Johnson (R-OH) in early 2024 are going to make things even more interesting. Santos’ seat, NY-03, is expected to flip to Democrats when the February special election takes place. Special elections for McCarthy and Johnson will happen, but not before Republicans’ majority in the House is reduced to 219 seats. In a House with 432 members, 217 is the magic number. Speaking of departures from Congress, here’s the list of the 33 members who aren’t running for reelection to the House in 2024. More will join in them, sooner rather than later.
House committee schedule: Below are some House committee hearings that may be of interest. The full House committee schedule for the week is here.
Member Day (Oversight and Accountability, Monday at 4:00 pm)
Business Meeting (Strategic Competition Between the United States and the Chinese Communist Party, Tuesday at 8:00 am)
Markup of Various Legislative Measures (Transportation and Oversight, Tuesday at 9:45 am)
Restricting Rogue-State Revenue: Strengthening Energy Sanctions on Russia, Iran, and Venezuela (Financial Services Subcommittee on National Security, Illicit Finance, and International Financial Institutions; 10:00 am)
Considering DHS’ and CISA’s Role in Securing Artificial Intelligence (Homeland Security Subcommittee on Cybersecurity and Infrastructure Protection, Tuesday at 10:00 am)
A Year in Review: The State of Small Business in America (Small Business, Tuesday at 10:00 am)
Ensuring Transparency in the Federal Government: An Examination of GSA’s Site Selection for the FBI Headquarters (Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management; Tuesday at 10:00 am)
The Mineral Supply Chain and the New Space Race (Natural Resources Subcommittee on Oversight and Investigations, Tuesday at 10:15 am)
Markup of Various Legislative Measures (Education and the Workforce, Tuesday at 10:15 am)
Looking Ahead Series: Oversight of the Smithsonian Institution (House Administration, Tuesday at 10:30 am)
SSG Fox Suicide Prevention Grants: Saving Veterans’ Lives Through Community Connection (Veterans’ Affairs Subcommittee on Health, Tuesday at 10:30 am)
Addressing the Scourge of Anti-Semitism in Europe (Foreign Affairs Subcommittee on Europe, Tuesday at 2:00 pm)
Reviewing the Bureau of Industry and Security, Part II: U.S. Export Controls in an Era of Strategic Competition (Foreign Affairs Subcommittee on Oversight and Accountability, Tuesday at 2:00 pm)
F-35 Acquisition Program Update (Armed Services Subcommittee on Tactical Air and Land Forces, Tuesday at 2:00 pm)
Examining the Agenda of Regulators, SROs, and Standards-Setters for Accounting, Auditing (Financial Services Subcommittee on Capital Markets, Tuesday at 2:00 pm)
Left in the Dark: Examining the Biden Administration’s Efforts to Eliminate the Pacific Northwest’s Clean Energy Production (Natural Resources Subcommittee on Water, Wildlife, and Fisheries; Tuesday at 2:00 pm)
From Festive Cheer to Retail Fear: Addressing Organized Retail Crime (Homeland Security Subcommittee on Counterterrorism, Law Enforcement, and Intelligence; Tuesday at 2:00 pm)
Guardians of the Sea: National Security Missions of the United States Coast Guard (Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation, Tuesday at 2:00 pm)
Moving the Money Part 2: Getting Answers from the Biden Administration on the Iranian Regime’s Support of Terrorism (Financial Services Subcommittee on Oversight and Investigations, Wednesday at 9:00 am)
Oversight of the Infrastructure Investment and Jobs Act: Modal Perspectives (Transportation and Infrastructure Subcommittee on Highways and Transit, Wednesday at 10:00 am)
Digital Copyright Piracy: Protecting American Consumers, Workers, and Creators (Judiciary Subcommittee on Courts, Intellectual Property, and the Internet; Wednesday at 10:00 am)
Markup of Various Legislative Measures (Foreign Affairs, Wednesday at 10:00 am)
Protecting Workers and Small Businesses from Biden's Attack on Worker Free Choice and Economic Growth (Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions; Wednesday at 10:15 am)
Censorship Laundering Part II: Preventing the Department of Homeland Security's Silencing of Dissent (Homeland Security Subcommittee on Oversight, Investigations, and Accountability; Wednesday at 2:00 pm)
Reforming the WHO: Ensuring Global Health Security and Accountability (Coronavirus Pandemic, Wednesday at 2:00 pm)
Second Amendment Rights Empower Women's Rights (Judiciary Subcommittee on Crime and Federal Government Surveillance, Wednesday at 2:00 pm)
Growth of the Tax-Exempt Sector and the Impact on the American Political Landscape (Ways and Means Subcommittee on Oversight, Wednesday at 2:00 pm)
CCP Transnational Repression: The Party’s Effort to Silence and Coerce Critics Overseas (Strategic Competition Between the United States and the Chinese Communist Party, Wednesday at 7:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
What’s happening across the Capitol in the Senate: The Senate returns on Monday at 3:00 pm to resume consideration of the nomination of Richard E. N. Federico to serve as a judge on the U.S. Court of Appeals for the Tenth Circuit. Since cloture was invoked last week on the Federico nomination, a roll call vote on confirmation is expected to begin around 5:30 pm. Cloture motions were also filed on the nomination of Harry J. Coker, Jr. to serve as National Cyber Director and on the conference report for the National Defense Authorization Act (NDAA) for FY 2024, H.R. 2670. Other nominations may be considered this week, but we assume that NDAA will be the major focus for the rest of the week.
Negotiators are still trying to work out a deal on supplemental appropriations: The cloture motion on the motion to proceed to the vehicle for the national security supplemental—which, among other things, would send aid to Israel and Ukraine—failed last week. Senate Republicans voted against the procedural motion because they want more done on border security. Negotiators agreed to continue to talk over the weekend. Keep an eye on the supplemental this week. If an agreement is reached, it’ll undoubtedly go to the floor.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Communities in Crisis: What Happens When Disaster Recovery Funds are Delayed (Appropriations Subcommittee on Transportation, Housing and Urban Development, and Related Agencies; Tuesday at 10:00 am)
Markup of Various Legislative Measures (Health, Education, Labor, and Pensions; Tuesday at 10:00 am)
Coast Guard Academy Whistleblowers: Stories of Sexual Assault and Harassment (Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, Tuesday at 10:00 am)
Cleaning Up the C-Suite: Ensuring Accountability for Corporate Criminals (Judiciary, Tuesday at 10:00 am)
Legislative Hearing (Energy and Natural Resources Subcommittee on Public Lands, Forests, and Mining; Tuesday at 2:30 pm)
Oversight of the Government Publishing Office (Rules and Administration, Tuesday at 3:00 pm)
Nominations Hearing (Judiciary, Wednesday at 10:00 am)
Government Promotion of Safety and Innovation in the New Space Economy (Commerce, Science, and Transportation Subcommittee on Space and Science; Wednesday at 2:30 pm)
The New Invisible Hand? The Impact of Algorithms on Competition and Consumer Rights (Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights; Wednesday at 3:00 pm)
What is Fueling the Diabetes Epidemic? (Health, Education, Labor, and Pensions; Thursday at 10:00 am)
The Cyber Safety Review Board: Expectations, Outcomes, and Enduring Questions (Homeland Security and Governmental Affairs, Thursday at 10:00 am)
Protecting the Human Rights of Foster Children (Judiciary Subcommittee on Human Rights and the Law, Thursday at 1:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Deficit watch: The budget deficit for the first two months of FY 2024, October and November, was $383 billion. That’s $50 billion higher than the deficit at the same point in FY 2023. Revenues were up by 19 percent over the same point in FY 2023. This increase was driven by a 20 percent increase in individual income tax receipts and a 216 percent jump in corporate income taxes. Outlays were up 17 percent, driven by an 11 percent increase in mandatory programs (Social Security, Medicare, and Medicaid) and a 65 percent jump in interest payments on the national debt. It’s worth noting that outlays for net interest were higher than outlays for defense in October and November.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system. Follow us on Twitter and Facebook.