After unexpected scare, Senate overcomes filibuster and advances FISA extension bill

In a surprisingly close vote, the Senate advanced legislation Tuesday that would keep in place a key electronic surveillance tool the government says it needs to track terrorists, barely overcoming objections from a bipartisan group of civil libertarian-focused senators who wanted to add changes to the bill.

By a vote of 60-38, the Senate defeated a filibuster of the bill that reauthorizes Section 702 of the Foreign Intelligence Surveillance Act. Critics of the bill needed 40 votes to stop it from moving forward and came just two votes short.

The Senate now enters a 30-hour period of debate before holding a final vote later this week.

Section 702 allows the US government to collect communications, such as emails and phone records, of foreigners on foreign soil without a warrant. While the law targets non-US citizens, critics warn the government may incidentally monitor US citizens who are communicating with non-US citizens outside the United States.

While the vote stalled on the Senate floor for close to an hour and a half, undecided members were lobbied by opposing parties. Republican leaders also brought in Director of National Intelligence Dan Coats to persuade reluctant senators to vote yes.

Coats, after the vote, chuckled with reporters and said the vote was almost as exciting as the NFL playoff game this past weekend, when the Minnesota Vikings defeated the New Orleans Saints in the final play.

“There was drama,” Coats said with a smile.

Republican Sens. Rand Paul and Mike Lee, along with Democratic Sen. Ron Wyden, were leading the effort to halt the bill, saying they wanted to add reforms that would require warrants for the collection of any communications by US citizens.

They joked with reporters afterward about the arm-twisting on the Senate floor. “We think there was not any torture — that we know of,” Paul said.

“Not any physical torture,” Lee quipped, emphasizing the word “physical.”

“There was mental duress, I believe,” Paul said to some laughter.

Expressing disappointment, Wyden said Congress wasn’t doing enough to protect civil liberties. “What happened tonight is the Senate voted to rubber stamp a program over which most senators have not fulfilled their constitutional responsibilities.”

Along with substantive disagreements, critics were also frustrated with the refusal by Republican leaders to allow any amendments on the bill. Republican Sen. John Kennedy of Louisiana, who was pressed hard by both sides, said he was unhappy with the process that was unfolding. But in one of the final deciding votes, he ultimately decided to move forward. “I was undecided when I walked on the floor, but the program expires Friday, and I don’t want to play with fire,” he told reporters. “This is an important program.”

Missouri Sen. Claire McCaskill, a Democrat up for re-election this year in a state won by President Donald Trump, cast the final vote that helped tip the scales in favor of advancing the bill. As reporters approached her afterward, McCaskill jumped into an elevator. “Stay away from me,” she warned. “I have a 103 temperature. You don’t want it.”

McCaskill departed from many in her own party who voted against advancing the bill. Nearly all the potential 2020 Democratic presidential candidates—including Sens. Kirsten Gillibrand, Cory Booker, and Kamala Harris — voted no.

Still, the vote certainly did not fall along party lines. Standing shoulder to shoulder with Paul earlier at a news conference on the issue was Democratic Sen. Elizabeth Warren, who falls on the opposite end of the ideological spectrum.

And just moments before the vote began, Republican Sen. Richard Burr and Democratic Sen. Mark Warner — the two top members on the Senate Intelligence Committee — both delivered speeches calling on their colleagues to end the debate and move on to the final legislation, stressing the issue as a matter of national security.

Speaking on the Senate floor shortly before the vote, Senate Majority Leader Mitch McConnell urged his colleagues to end debate on the bill, describing Section 702 as “one of the most important tools that our war fighters and intelligence professionals use to wage the war on terror and to keep Americans safe.”

Last week, the House voted to reauthorize Section 702. The House also voted on an amendment that would add similar civil liberty reforms to the bill, but the amendment was defeated.

Assuming it gets final passage in the Senate later this week, the measure would next go to President Donald Trump, who is expected to sign the bill.