This Week in Congress (One of two)

The House will consider the Senate budget. The budget passed  the Senate last week, with Senator Rand Paul the only Republican no vote— even though it increases spending by at least $43 billion over the spending caps.

The reason most Republicans will vote for the budget is because they want to be able to use reconciliation for tax reform. They forget that tax cuts without spending cuts are simply delayed tax increases and the economic consequences of increased spending will dwarf any economic benefits from tax cuts.

Last week, Senator Paul offered a series of amendments to the budget:

1. Cut spending to save $98 billion dollars. This amendment only got 4 votes. Roll-call here.

2. Eliminate the Pentagon’s Overseas Contingency Operations slush fund, thus saving $43 billion. This amendment got 5 votes. Roll-call here.

3. Use reconciliation for Obamacare repeal. This amendment got 33 votes. Roll-call here.

4. Increase the size of the tax cut to $2.5 trillion. Since this amendment would force Congress to cut spending it only got seven votes. Roll-Call here.

Remember these votes the next time someone ties to tell you that Republicans are serious about cutting spending. Of course, most Republicans bought the line that this was not the time to fight on spending cuts since to do so would interfere with the push for reconciliation. But this is similar to the excuse used for not opposing the big spending budget Congress passed in the spring except then it was ObamaCare repeal. And when a big spending Omnibus spending bill comes to the floor in December we will hear that now is not the time to fight because we cannot risk a government shutdown. When it comes to cutting spending the GOP is constantly saying tomorrow, but tomorrow is always a day away.

This week the Senate will once again show its lack of adroitness about spending cuts by following the House’s lead and passing a 36.6 billion dollar bill for disaster relief. Read about the House bill here.

The big event in the Senate takes place off the floor. The Intelligence Committee will mark-up a bill renewing section 702 of the FISA Act. While we can assume it is bad, we cannot say for sure how bad it is since the bill text is not being made available to the public or even members of the Senate before the mark-up.

Campaign for Liberty has signed a coalition letter calling on Senate Intelligence Committee to hold the mark-up in open session:

October 20, 2017

Dear Chairman Burr and Ranking Member Warner:

We, the undersigned civil liberties and government transparency organizations, write regarding the press reports that the Senate Select Committee on Intelligence (SSCI) will hold a closed markup on draft legislation to reauthorize Section 702 of the FISA Amendments Act next week. Specifically, we urge you to hold the markup in an open session. Should you decide to hold some or all of the markup in a closed session, we urge you to follow committee and Senate rules that require a public vote before doing so.

To the greatest degree possible, the consideration of legislation pertaining to Section 702—which, although it authorizes surveillance of foreign persons overseas, significantly affects the privacy of U.S. persons’ communications—should take place in public. When Congress legislates, by default the process should be open to the public so that constituents can understand the issues at hand, participate in the process, and hold their elected officials accountable.

Senate and SSCI rules are structured to reflect the viewpoint that openness should prevail. SSCI committee rule of procedure 2.1 declares “meeting of the Committee shall be open to the public except as provided  in paragraph 5(b) of Rule XXVI of the Standing Rules of the Senate.” Senate Rule XXVI states “very meeting of a committee … shall be open to the public,” except in certain enumerated circumstances, and only after a public motion and second to go into closed session on the basis of those exceptions and a record vote in open session by a majority of members of the committee.” Although we recognize that SSCI’s jurisdiction includes considering matters involving classified information, the Committee’s consideration of Section 702 can be accomplished based upon unclassified information already available to the public. To the extent that discussion of classified information is necessary, only those small portions of the markup need to be held in a closed setting.

Section 702 reauthorization and reform is a matter of public debate in Congress, and a great deal of information about the operation of the program has been declassified. SSCI held an open hearing on this topic June 7, 2017, the Senate Judiciary Committee held an open hearing on June 27, 2017, and the House Judiciary Committee held an open hearing on March 1, 2017. Additionally, the House Judiciary Committee is expected to hold an open markup on Section 702 legislation in the near future. It is therefore highly unlikely that it would be necessary to discuss classified information in the course of the Committee’s markup.

This issue is too important and has too great an impact on Americans’ privacy for SSCI to debate it behind closed doors. The American people have a right to know the arguments that their Senators make for and against legislation. Should some members of SSCI move to deliberate on certain aspects in closed session, we expect the committee will follow Senate procedures, require a vote in open session, and close the debate only to the extent provided for by Senate rules.

Sincerely yours,

American Civil Liberties Union
American Library Association
Campaign for Liberty
Defending Rights & Dissent
Demand Progress Action
Electronic Frontier Foundation
Electronic Privacy Information Center (EPIC)
Free Press Action Fund
FreedomWorks
Government Information Watch
National Security Archive
National Security Counselors
New America’s Open Technology Institute
OpenTheGovernment
PEN America
Project On Government Oversight
Public Citizen
Restore The Fourth
RootsAction.org
TechFreedom
The Constitution Project
Yemen Peace Project

  While SSCI has not given public notice of the markup on its website, Chairman Burr was quoted in Politico Pro on a date. See “Senate Intelligence plans markup of surveillance renewal bill next week,” by Martin Matishak (10/17/2017), available to subscribers only at https://www.politicopro.com/cybersecurity/story/2017/10/senate-intelligence-plans-markup-of-surveillance-renewal-bill-next-week-163508.
  https://www.intelligence.senate.gov/about/rules-procedure.
  https://www.rules.senate.gov/public/index.cfm?p=RuleXXVI. The full text is reproduced in the appendix to this letter.
  “FISA legislation,” available at  https://www.intelligence.senate.gov/hearings/open-hearing-fisa-legislation-0.
  “The FISA Amendments Act: Reauthorizing America’s Vital National Security Authority and Protecting Privacy and Civil Liberties,” available at https://www.judiciary.senate.gov/meetings/the-fisa-amendments-act-reauthorizing-americas-vital-national-security-authority-and-protecting-privacy-and-civil-liberties.
  “Section 702 of the Foreign Surveillance Act,” available.

If your Senator is on the Intelligence Committee, call them and tell them to support public mark-up of legislation reauthorizing 702 of the FISA Act. You can find Republican Committee members here and Democrat members here.