The NSA Fight

by Jonathan Strong
The Michigan congressman determined to stop the NSA’s abuses wins a battle against House GOP leaders.

On Friday, July 19, on the House floor, Majority Leader Eric Cantor pulled Representative Justin Amash aside, ushering him into a meeting with whip Kevin McCarthy and three of Amash’s congressional allies.

Cantor pressed Amash to withdraw his amendment to stop the National Security Agency from collecting logs of every American’s phone calls and said he would work to provide a vote on the issue in a future bill.

But several of Cantor’s top aides, who were also present, gave what Amash thought was a more threatening overture: There’s bound to be a procedural technicality we can use to kill the amendment, they said, and we’re going to find it.

The meeting, which has not been previously reported, underscores the efforts of some in House leadership to stop the proposal, which was offered as an amendment to the Department of Defense appropriations bill, from coming to a vote, according to documents reviewed by National Review and to interviews with participants.The amendment had already been through the procedural wringer, with the House parliamentarian’s office giving an initial approval that it was “in order” to change its mind only as outside parties, including GOP leadership, weighed in.

Indeed, prior to an all-important Rules Committee meeting that would decide whether the amendment ever got to see the light of day, the measure was headed for a premature death.

It was Speaker John Boehner who ultimately saved it, giving the amendment the green light after discussing it for the first time with Amash on the House floor on Monday night — minutes before the Rules Committee had been slated to kill it.

Boehner never told Amash why he would give the Michigan Republican, of all people, the privilege of the vote. Amash had helped lead a failed coup attempt against the speaker in January, and Boehner was so deeply opposed to the amendment he took the rare step of voting against it. (By tradition, the speaker doesn’t usually vote.)

But one animated and colorful conversation later, the amendment was en route to the House floor, prompting panic from its opponents on the House Intelligence Committee, who later that night announced an emergency classified briefing with General Keith Alexander, the NSA director, the next day.

The vote, once it was finally permitted, exposed a large bipartisan coalition with concerns about the NSA’s aggressive use of the Patriot Act to collect vast amounts of “metadata” from phone companies.

Despite President Obama’s pleas to vote against the amendment, 111 House Democrats — 55 percent of the caucus — voted for the amendment. Over 80 percent of the Progressive Caucus backed the proposal, which was cosponsored by Representative John Conyers, the top Democrat on the Judiciary Committee.

Alexander, the NSA chief, was forced to personally lobby members, calling their cell phones and opening with a joke that, yes, he already had their number.

But the final tally, 217–205 against, also showed the resilience of the intelligence establishment. Tuesday morning, as Intelligence Committee chairman Mike Rogers of Michigan surveyed his task ahead, it was daunting: According to an internal tally, over 300 members had issued public statements of concern about the NSA’s data-collection program, which was first revealed by NSA whistleblower Edward Snowden in early June.

Amash first began working on the amendment the first week of July, asking his deputy chief of staff, Will Adams, to work up some language they could use to stop the mass collection of phone records while leaving the government’s other authorities intact.

Aides to Conyers, who with Amash had cosponsored a bill on the issue a month earlier, caught wind of the effort and quickly signed on. Soon Representative Thomas Massie of Kentucky, a fellow libertarian Republican and one of Amash’s top allies, and Representative Jared Polis, a liberal Democrat from Colorado, had joined as well. Another young conservative firebrand, Representative Mick Mulvaney of South Carolina, joined soon after.

Amash’s staff began working with experts from the Congressional Research Service, Congress’s in-house think tank, to craft an amendment that would address the issue and stay within the lines of House rules that govern which types of amendments can be considered on certain types of bills — in this case an appropriations, or spending, bill.

The referee for those kinds of questions is the House parliamentarian’s office, where nonpartisan lawyers decide what to allow based on 224 years of precedent found in 28 bound volumes. The parliamentarian’s office, or “parls,” in congressional-aide vernacular, is so inside-baseball that even the vast majority of aides and Capitol Hill reporters never really think about or discuss its role in the process.

But, in the case of the Amash amendment, the parliamentarian’s office turned out to be a major battlefield — and the means its enemies used to try to kill it.

On July 16, the parliamentarian’s office gave its initial preliminary approval, ruling that Amash’s amendment was “in order.” About 24 hours later, that decision had changed. Amash’s aide Adams was told that outside parties had weighed in and raised previously unforeseen procedural arguments against the amendment.

Amash’s office worked with the CRS expert and Rules Committee staff, who appear to have been a neutral force throughout the debate, to rewrite the amendment.

From this process, two competing narratives have emerged. In one, leadership is bending backward to help Amash’s amendment come to the floor. In the other, plugged-in aides kept throwing up constant roadblocks to try to suppress the amendment.

The night of the vote, Politico first reported on the leadership view, quoting a Republican who said GOP leadership had been “twisting ourselves in knots for a week trying to craft language that was germane and got at the issue.”

That flies in the face of the experience Amash and his allies had, according to their accounts. “I was going through the exact same thing,” Massie says, referring to an amendment he offered to the same bill, which was on U.S. foreign policy on Egypt. “The parliamentarian would say it was in order, and somehow leadership would come back and say, ‘No, it’s not in order,’” he recalls. “The idea that they were holding his hand on this is laughable.”

Those involved in the matter, including some who were neutral in the fight, say that, while it’s not unheard of for an amendment to be scrutinized on parliamentary grounds after it has been introduced, Amash’s proposal got far more examination than usual.

Not to mention, Cantor’s staff specifically raised it with Amash as a possible means of stopping the amendment.

The meeting between Cantor, McCarthy, and Amash came after Amash’s staff had already redrafted the amendment with the help of the “parls” to be impervious to procedural objections. Amash allies Mulvaney, Raul Labrador, and Jeff Duncan were also present.

Cantor, with McCarthy’s backing, wanted to push a vote on the issue to the Intelligence Reauthorization bill, a more traditional venue for a policy fight like this one. But that bill wouldn’t be considered for months. Amash, Massie, and others wanted a public debate on the issue now, while there was still public attention on the issue stemming from the Snowden leaks.

Amash made a counteroffer: He would drop the amendment for a floor vote, before the August recess, on a nonbinding resolution expressing the sense of the House on the NSA’s phone-records-collection program. Cantor rejected that idea. He then offered to drop the amendment if his bill on the issue received a hearing and markup in the Judiciary Committee before the August recess, then two weeks away.

After saying he would check with Judiciary chairman Bob Goodlatte on that option, Cantor came back Monday with a rejection of that offer as well.

The following Monday, with the amendment appearing destined to be denied a vote, Amash and Massie began working to enlist allies on a backup plan: to bring down the underlying Defense appropriations bill if the amendment didn’t get a vote.

Every time a bill is brought to the House floor, lawmakers vote first on a “rule,” which governs the debate over the bill, including how much time is spent on the floor talking about the bill and which amendments get voted on.

Rule votes are almost always party-line affairs. As soon as new members arrive in Washington, their party leaders begin drumming it into their heads that procedural votes like rule votes are “family votes,” in the words of McCarthy.

Since Democrats would be voting against the rule for the Defense-appropriations bill, it could take only a few Republicans to defeat it. (According to the actual vote on the rule that took place July 23, precisely 18 GOP “no” votes would have been needed to defeat it.)

Amash began circulating a letter Monday morning to gather supporters to defeat the rule if his amendment didn’t get the vote. Then he took to Twitter to publicize his effort. Leadership aides were enraged.

It’s an open question whether he and his allies really had the juice to bring down the rule. Leadership types claim it was never a worry. An Amash aide says in the few hours they whipped it on Monday, eight or nine members had already committed to vote against the rule, half the amount that was ultimately needed.

Representative Jim Jordan, the former chairman of the Republican Study Committee who remains a highly influential figure in the party, was thought to be a possibility to vote against the rule, several sources said. His vote alone could have pushed the rule over the brink, since dozens might have followed his lead.

Meanwhile, Amash’s office was trying to arrange for a meeting with Boehner for Amash to make one last pitch to the speaker on behalf of the amendment. Boehner was booked, his scheduler said, but Amash could try to grab him on the House floor that night at 6:30 p.m. That was after the Rules Committee, meeting at 5 p.m., was likely to make its final decision on whether to include Amash’s amendment.

The meeting  took place that night on the House floor, when Boehner finally relented and decided to allow a vote.

According to a Republican familiar with Boehner’s thinking, he did so partly because he knew a good number of Republicans wanted a public debate on the issue badly. But he also wanted to give the Obama White House a wakeup call on just how controversial — and thus endangered — the policy, which Boehner strongly supports, is in Congress.

Amash says the episode leaves him optimistic that the tide is turning in the debate. “We knew we would have an uphill battle, although we didn’t know from the outset that we would have to battle all of the forces that we did,” he says. “To get so close to passing the amendment when the odds were so stacked against us shows how much the debate on NSA’s blanket surveillance has changed.”

It was enough to drive his detractors nuts. “Leadership is turning him into a folk hero!” a GOP aide laments, arguing that the lead-up to the vote played into Amash’s David-vs.-Goliath narrative and enhanced his stature. The Politico piece had more than its share of shots at Amash. It quoted “several” Republicans calling Amash a “child,” which might have stung more if Congress weren’t practically a retirement home.

Will Amash turn the vote into the first battle in an ultimately successful war? On that question, the verdict is still out.

— Jonathan Strong is a political reporter for National Review Online. Follow him on Twitter @j_strong.