The Politics of the Cyber Legislation Debate

Over the past several weeks, I’ve written a number of blogs about the substance of the cybersecurity bills pending before Congress.  As the House moves to consider cyber legislation next week and as the Senate prepares to begin its debate, I wanted to offer a brief comment on the politics of the debate. That question can be addressed in any number of ways.  One thing that strikes me, at least initially, is the slightly puzzling question of “why now?”  After all, the problem of cybersecurity has been with us for a dozen years, so why is Congress moving at this time?  One possible answer is that the drum beat of threat analysis has simply reached an unsustainable level – the voices of concern are so loud (see, as the latest example, this op-ed by White House adviser John Brennan) that Congress feels compelled to act.  Another view, however, is the more cynical one that an election is coming and thus, that the maneuvering is as much about credit (or blame) for future success or failures as it is about perceived threats.   Of course, if one accepts the fundamental premise of vulnerability, the push to address the issue is almost certainly a combination of the two factors – a heartfelt desire to address a real problem combined with a political anxiety about responsibility. The other aspect of the politics that strikes me with some force is how significantly different the dynamics are in the two chambers.  In the House, the principal battles seem to be developing within the Republican party and to break along House jurisdictional lines, with the Rogers-Ruppersberger bill a proxy for the interests of the Intelligence Community/DoD and the Lungren offering a proxy for a DHS-centric approach.  To be sure there are some broader overlays – most notably the privacy and civil liberties concerns that may unite progressives with the Tea Party, but those seem rather muted and the Democratic voice is mostly on the sidelines.  That is, of course, a function of the nature of House rules, but it is nonetheless quite striking. Especially when looked at in contrast to the Senate.  Here the break is on much more traditional lines with Republicans generally lining up behind Senator McCain’s offering and Democratic members supporting the Lieberman-Collins view.  What we should expect on the Senate side is that the most significant action will actually take place before the bills reach the floor when Majority Leader Reid sets the terms of the debate. If the debate is structured with a presumptive “victor” such that any substitute needs 60 votes to replace the base bill then whichever bill is the base bill (presumably Lieberman-Collins) is almost certain to come out at the other end as the dominant structure.  On the other hand if the debate is structured so that there is no “king of the Hill” but rather as an either-or choice between the two competitors, then the “victory” will go to whichever bill garners 51 votes – a much more uncertain result.  For obvious reasons Majority Leader Reid will want to structure the voting in the first manner while supporters of the McCain bill will prefer the second.  If the two sides can’t agree then we might not even get to a discussion of the bill – the motion to proceed to consideration will itself fail as Republicans hold 41 votes to prevent discussion. One final piece of the political calculus is what the Administration wants.  Right now all public signs are that they want BOTH information sharing AND the regulatory structure.  If it is an “all or nothing” proposition we might well wind up with nothing, or in a game of chicken over blame.  On the other hand, if the Administration agrees to half a loaf that probably means that is all they will get. All of which is a long way of saying that in Washington the substance of a law can never full be disassociated from the politics.  It will certainly be an interesting process to observe.