House Speaker Mike Johnson and Senate Republicans need to keep one set of numbers in mind — 35-2 — when being pushed to reauthorize the Biden administration’s unconstitutional, warrantless spying on American citizens under the Foreign Intelligence Surveillance Act (FISA). Some members of Congress are talking about inserting the reauthorization in spending legislation the chamber will be debating this week.

That number represents the Dec. 6, 2023 vote tally when the House Judiciary Committee passed Chairman Jim Jordan’s proposed reforms to FISA out of committee. H.R. 6570 would do several things, most especially stopping Biden’s weaponized Department of Justice and FBI from spying on American citizens without a federal judge first signing a warrant.  

Section 702

FISA goes back to 1978, but Congress added Section 702 after the 9/11 terrorist attacks. It allows intercepting emails and phone calls from foreigners overseas, but over the past few years, several shocking reports have revealed that those warrants also captured communications from Americans.

For example, one declassified report said that in June 2022, a government analyst conducted four searches on a U.S. senator, which was later determined to be unauthorized.

For another, federal agencies have been buying information on Americans from companies that sell information to marketers. This is being done to work around the Fourth Amendment, which  blocks the government from accessing that information directly.

FISA Warrants Don’t Have All the Legal Protections of Standard Warrants

FISA warrants don’t go through the standard process the Fourth Amendment establishes for obtaining a search warrant. Although the judges on the Foreign Intelligence Surveillance Court (FISC) are real federal judges, not all legal protections apply in that secretive court. For one thing, only government lawyers are involved.

Section 702 information is stored for years, and the FBI doesn’t need a warrant to search some of those records. Many Americans are concerned about that kind of spying power, and it’s no surprise that members of Congress share that concern.

Widespread Opposition

Opposition to the FISA abuses is widespread. Not only did all Republicans on the House Judiciary Committee vote for H.R. 6570, but so did every Democrat — including hardcore leftists like Jerry Nadler and Pramila Jayapal — except for two particularly problematic legislators: California’s Eric Swalwell and Georgia’s Hank Johnson. Most Americans don’t take their national security cues from congressmen who sleeps with Chinese Communist spies or think that U.S. military assets could become so heavy that they could make the island of Guam flip over. 

Conservatives in the Senate are also demanding reform. Senator Mike Lee (R-UT), in particular, has been leading the charge in demanding that these unconstitutional, warrantless searches must end.  

No ‘Must-Pass’ Legislation

Supporters of the status quo know that a bill that reauthorizes FISA with no reforms would have a very hard time passing on its own, so they’ve been looking for ways to insert that language into federal spending bills. With both chambers of Congress possibly moving a massive spending package by this Friday, Republican leaders in the House and Senate need to make sure that FISA does not end up in “must-pass” legislation.

House Speaker Mike Johnson (R-LA) and Senate Republicans need to stand strong on the policy that any bill that can pass 35-2 out of the House Judiciary Committee has overwhelming bipartisan support. Such legislation deserves to be debated and voted upon as a standalone measure, not tied up with federal funding.

Ambassador Ken Blackwell is chairman of the CNP Action and senior fellow for Human Rights and Constitutional Governance at the Family Research Council. Follow him on X @kenblackwell.