Lame Duck Congress

There was an interesting opinion piece over on WSJ.com last week about apparent planning for legislative work in a lame duck Congress following a successful re-taking of the House by the Republicans this fall. Nothing in the article by John Fund mentions CFATS, but it leads one to think about what if? I’m not so sure that the Republican resurgence is any where near a done thing as the article implies, but most commentators at this point in the election cycle seem to accept that it is at least a possibility. At this point no one is seriously mentioning the possibility of a Republican majority in the Senate, but it seems nearly certain that it will be further from a super-majority for the Democrats than it currently is. So what does this mean for the CFATS reauthorization? First off, the House has done their job (from the Democrats point of view) in passing HR 2868. The only way that the potentially out-going majority in the House will have any way to deal with that will be in Conference if the Senate passes a different version of the bill. Not much chance of that happening. There is another CFATS bill currently in the hopper in the House, HR 5186; the companion bill to Sen. Collins’ S 2996. If Chairmen Thompson and Waxman become convinced that the Democrats will loose in November, there is a remote possibility that HR 5186 could be dealt with in their Committees, adding some of the HR 2868 provisions most dear to those two gentlemen. Those provisions could include labor participation in the security process, background check protections for employees, and whistleblower language. Properly worded those provisions could probably be supported by Rep Dent (R, PA) and the other Republicans on the Committees. I would also expect that a watered down inherently safer technology provision could be added to the bill. If the Democrats added a version of the IST wording being developed in DHS, I think that most of the Republicans would vote against the amendment, but some could vote for the bill. That IST provision would call for all high-risk facilities to evaluate alternative technologies and to report on that evaluation in their site security plan. I expect that a version of S 2996 like that could pass in the Senate Homeland Security and Governmental Affairs Committee. The question would then become how it would fare on the floor of the Senate. Without a clearly impending massive defeat in the House in November, I don’t think that a version of CFATS authorization without some form of IST mandate can make it to the floor of the Senate. In a lame-duck Congress that might just change. Democrats might be willing to agree to get what they can. I don’t think that Senators Lautenberg and Rockefeller would be willing to go along with the current five year term of S 2996. I think that they would accept a two or three year term with the expectation that they could regain control of the House in the next election and have another chance to modify CFATS. Five years would just put it too far off into the future. I am firmly convinced that HR 2868 is completely dead now. The Republicans only have to prevent a vote in the Senate, and that shouldn’t be too hard. In fact, an impending victory in the House will make it even easier for the Republican leadership to hold their caucus together in a firm voting block. And a lame duck Congress would have no chance of getting the votes in the Senate to push through HR 2868. There won’t be a floor vote on S 2996 or HR 5186 before the election. The Democrats certainly cannot afford to upset an important part of their base before the election. They will need every vote they can get in the close election and pissing off the IST supporters is a good way to get large numbers of them to stay home. They need those votes to have any chance of holding on.