Memories are long in the Senate, and it will probably take Majority Leader Mitch McConnell, R-Ky., more than a week or two to get over the rebuff he suffered on the floor when he tried to attach cybersecurity legislation as an amendment to a pending defense bill.
That procedural gambit was blocked on June 11 by most Democrats and three Republicans, just days after McConnell’s move to renew National Security Agency surveillance authorities was similarly rejected.
Last week, McConnell walked away from a reporter without comment when asked about prospects in July for the cybersecurity bill, the Cyber Intelligence Sharing Act, which would encourage the sharing of cyberthreat indicators between government and industry with liability protection for participating companies. Critics of the bill say it places more personal information in government hands and raises profound concerns over privacy. And that it could also open the door to retributive hacking by government and private companies.
Later, McConnell said the cyber bill “is important, it’s a priority, we will continue to look for a way forward.”
He declined to comment on timing. But the Senate was moving from defense authorization to defense appropriations, and maybe to a highway bill. Another vote on trade related legislation was also possible before the Senate would get back to cyber.
The Senate leaves town Friday for the week-long July Fourth recess, followed by five weeks in session prior to the August recess.
“Wacky. Unnecessary. Things could slip to September,” an industry source said of the topsy-turvy fortunes of the cybersecurity bill. “That wouldn’t be good.”
Industry representatives have been extremely anxious to pass CISA through the Senate – this month or certainly by the end of July – to allow plenty of time for final negotiations with the House and White House.
Congress’s schedule in the fall promises to be jammed with year-end spending fights, and the demands and distractions of a rapidly approaching presidential campaign.
When Congress disposed of the NSA surveillance controversy by passing the USA Freedom Act reforms, it was assumed that the way was now clear for the cyber bill.
The optimism lasted for about a week, until McConnell surprised supporters and foes alike by announcing his ill-fated bid to add cyber to the defense bill.
As often happens with any Senate leader, if legislation is blocked on a procedural vote it slides down the list of priorities.
“I hope Sen. McConnell would put it on the floor quickly,” Sen. Charles Schumer, D-N.Y., told reporters last week. He said Democrats would accept time limits around the debate on the cyber bill and move it quickly across the floor.
Across the Capitol, House Homeland Security Chairman McCaul, R-Texas, told InsideCybersecurity.com that he was urging Senate leaders to bring up CISA so the two chambers could negotiate a final version and get it to the president.
“The president would sign our bill into law,” McCaul said of the Homeland Security-crafted bill that passed the House in April.
Amid the uncertainty, positive signs did emerge from the failed maneuver to insert the cyber bill into the annual National Defense Authorization Act,.
Minority Leader Harry Reid, D-Nev., declared on the Senate floor that the cyber bill would need only two or three days of debate as a standalone measure, and seemed confident it would pass with a large bipartisan majority. He just wouldn’t accept a truncated debate as part of the defense bill, he said, with severely limited opportunity for amendments.
Sen. Ron Wyden of Oregon, the leading Democratic opponent of CISA, agreed there would be no obstacles to passing the bill if a full debate were allowed.
Reid said Senate Intelligence ranking member Dianne Feinstein, D-Calif., would work with Democratic members of the Judiciary and Homeland Security and Governmental Affairs committees to address their problems.
Looking at the actual Senate vote on proceeding to CISA as an amendment to the defense bill, at least five and perhaps many more of the 37 Democrats who voted no would likely switch their votes under regular order.
That list includes Feinstein and three other senators who voted for the bill in committee but opposed the floor move. It would also probably include Sen. Tom Carper, D-Del., who has praised Feinstein repeatedly in recent months for addressing his problems with the original version of bill.
Seven Democrats crossed lines to vote in favor of McConnell’s cloture motion, so they could be counted on to support CISA if and when it comes up again.
Among the three Republicans who voted against proceeding, Sens. Mike Lee of Utah and Dean Heller of Nevada have raised concerns related to the uses of data allowed under CISA, particularly in noncyber criminal investigations.
Both staked out anti-surveillance positions during the earlier NSA debate. But industry lobbyists were confident their concerns with CISA could be addressed through the amendment process.
Sen. Rand Paul of Kentucky was the third GOP no vote, and he has wrapped opposition to the cyber bill into a larger campaign against government power that is defining his presidential run.
That position resonates to a degree with Wyden, Sen. Patrick Leahy, D-Vt., and some others, but it appears at least 60 senators would likely disagree with the charge that this is a “surveillance bill” masquerading as cybersecurity.
“Many agree with the underlying purpose of the bill but want it to go through the full amendment process,” said one lobbyist.
That said, the events of the past few weeks show the Senate floor remains a tricky and dangerous place for cyber legislation.
Charlie Mitchell is editor of InsideCybersecurity.com, an exclusive service covering cybersecurity policy from Inside Washington Publishers.
