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While They’re Replacing John Boehner, the GOP Should Replace Devin Nunes, Too

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In a profile in Politico, Justin Amash* makes the case that the Freedom Caucus’ rebellion against John Boehner isn’t so much about ideology, it is about process.

Republican leaders see Freedom Caucus members as a bunch of bomb-throwing ideologues with little interest in finding solutions that can pass a divided government.

But that’s a false reading of the group, Amash told his constituents. Their mission isn’t to drag Republican leadership to the right, though many of them would certainly favor more conservative outcomes. It’s simply to force them to follow the institution’s procedures, Amash argued.

That means allowing legislation and amendments to flow through committees in a deliberative way, and giving individual members a chance to offer amendments and to have their ideas voted on on the House floor. Instead of waiting until right before the latest legislative crisis erupts, then twisting members’ arms for votes, they argue, leadership must empower the rank and file on the front end and let the process work its will.

“In some cases, conservative outcomes will succeed. In other cases, liberal outcomes will succeed. And that’s OK,” said Amash, who was reelected overwhelmingly last year after the U.S. Chamber of Commerce backed his Republican primary rival. “We can have a House where different coalitions get together on different bills and pass legislation. And then we present that to the Senate and we present it to the White House.

The truth lies somewhere in-between. After all, 8 of the 21 questions the FC posed to potential Speaker candidates are ideological in nature, hitting on the following issues:

  • Obamacare
  • Budget and appropriation resolution reform
  • Ex-Im bank
  • Highway Trust Fund
  • Impeaching the IRS Commissioner
  • First Amendment Defense Act

Admittedly, even some of those — the financial ones — are procedural, but there are some key ideological litmus tests there.

Of the remaining 21 questions, 3 pertain to use of NRCC resources, 4 pertain to conference make-up, and 6 have to do with process. In other words, this block of members wants to end the systematic exclusion of their members from leadership and other positions and the systematic suppression of legislation that might win a majority vote without leadership sanction.

And while I certainly recognize that some of these process reforms — again, especially the financial ones — would likely lead to more hostage taking, I also think such reforms would also make (as one example) stupid wars and surveillance less likely, because a transpartisan majority of the House opposes many such things while GOP leadership does not (Nancy Pelosi generally opposes stupid surveillance and wars but also usually, though not always, does the bidding of the President).

The Yoder-Polis Act, an ECPA reform bill supported by 300 co-sponsors, is an example of worthy legislation that has long been held up because of leadership opposition.

While making the case for reform, though, I’d like to make the suggestion for another: to boot Devin Nunes, the current Chair of the House Intelligence Committee. According to the House Republican rules, the only positions picked by the Speaker are Select Committee Chairs, which would include Nunes and Benghazi Committee Chair Trey Gowdy (the latter of whom seems to be taken care of with Republican after Republican now admitting the committee is just a hack job, though if the FC wants to call for Richard Hanna to take over as Chair to shut down this government waste, I’d be cool with that too).

But with Boehner on his way out, it seems fair to suggest that Nunes should go too. While Nunes was actually better on Benghazi than his predecessor (raising questions about the CIA’s involvement in gun-running), he has otherwise been a typical rubber stamp for the intelligence community, rushing to pass info-sharing with Department of Energy even while commenting on their shitty security practices, and pitching partisan briefings to give the IC one more opportunity to explain why the phone dragnet was more useful than all the independent reviews say it was.

The Intelligence Community has lost credibility since 9/11, and having a series of rubber stamp oversight Chairs (excepting Silvestre Reyes, who was actually reasonably good) has only exacerbated that credibility problem. So why not call for the appointment of someone like former state judge Ted Poe, who has experience with intelligence related issues on both the Judiciary and Foreign Relations Committees, but who has also been a staunch defender of the Constitution.

Hostage taking aside, I’m sympathetic to the argument that the House should adopt more inclusive rules, in part because it would undercut the problems of a two party duopoly serving DC conventional wisdom.

But no place in Congress needs to be reformed more than our intelligence oversight. And while picking a more independent Chair won’t revamp the legal structure of intelligence oversight, it might initiate a process of bringing more rigorous oversight to our nation’s intelligence agencies.

Of course, who am I kidding?!?! It’s not even clear that the GOP will succeed in finding a palatable Speaker candidate before Boehner retires. Throwing HPSCI Chair into the mix would likely be too much to ask. Nevertheless, as we discuss change and process, HPSCI is definitely one area where we could improve process to benefit the country.

*Amash is my congressperson, but I have not spoken to him or anyone else associated with him for this post and don’t even know if he’d support this suggestion.

USA F-ReDux: The Risks Ahead

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Sometime after 2 today, the House will pass USA F-ReDux by a large margin. Last night the Rules Committee rejected all amendments, including two (a version of the Massie-Lofgren amendment prohibiting back doors and a Kevin Yoder amendment that would improved ECPA protections) that have majority support in the House.

After the bill passes the House today it will go to the Senate where Mitch McConnell will have his way with it.

What happens in the Senate is anyone’s guess.

One reason no one knows what Mitch has planned is because most people haven’t figured out what Mitch really wants. I think there are 3 possibilities:

  • He actually wants USA F-ReDux with some tweaks (about which more below) and the threat of a straight reauthorization is just a tactic to push through those tweaks; this makes the most sense because USA F-ReDux actually gives the IC things they want and need that they don’t currently have
  • There is something the government is doing — a bulk IP program, for example — that Mitch and Burr plan to provide Congressional sanction for even while basically adopting USA F-ReDux as a limit on Section 215 (but not other authorities); the problem with this plan is that secret briefings like the Administration offered the Senate, but not the House, last night don’t seem to meet the terms of ratification described by the Second Circuit
  • The Second Circuit decision threatens another program, such as SPCMA (one basis for Internet chaining involving US persons right now), that the Senate believes it needs to authorize explicitly and that’s what the straight reauthorization is about
  • [Update] I’m reminded by Harley Geiger that Mitch might just be playing to let 215 sunset so he can create a panic that will let him push through a worse bill. That’s possible, but the last time such an atmosphere of panic reigned, after Congress failed to replace Protect American Act in 2008, it worked to reformers’ advantage, to the extent that any cosmetic reform can be claimed to be a win.

I think — though am not certain — that it’s the first bullet, though Burr’s so-called misstatement the other day makes me wonder. If so Mitch’s procedural move is likely to consist of starting with his straight reauthorization but permitting amendments, Patrick Leahy introducing USA F-ReDux as an amendment, Ron Wyden and Rand Paul unsuccessfully pushing some amendments to improve the bill, and Richard Burr adding tweaks to USA F-ReDux that will make it worse. After that, it’s not clear how the House will respond.

Which brings me to what I think Burr would want to add.

As I’ve said before, I think hawks in the Senate would like to have data mandates, rather than the data handshake that Dianne Feinstein keeps talking about. While last year bill supporters — including corporate backers — suggested that would kill the bill, I wonder whether everyone has grown inured to the idea of data retention, given that they’ve been silent about the data handshake since November.

I also suspect the IC would like to extend the CDR authority to non-terrorism functions, even including drug targets (because they probably were already using it as such).

The Senate may try to tweak the Specific Selection Term language to broaden it, but it’s already very very permissive.

I’m also wondering if the Senate will introduce language undermining the limiting language HJC put in its report.

Those are the predictable additions Burr might want. There are surely a slew more (and there will be very little time to review it to figure out the intent behind what they add).

The two big questions there are 1) are any of those things significant enough to get the House to kill it if and when it gets the bill back and 2) will the House get that chance at all?