HR 4007 Hearing – The Politics

I finally had a chance to watch the video of the legislative hearing this week conducted by the Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee concerning HR 4007, the Chemical Facility Anti-Terrorism Standards Authorization and Accountability Act of 2014.  I’ll review in a later post some of the interesting things that were mentioned in the various written testimony provided by the witnesses I discussed in my blog post from earlier this week. In this post I want to look at some of the politics involved in this hearing.

The Politicians

It wasn’t that long ago that the three chairmen of the House committees with self-identified responsibility for CFATS were talking about shutting the program down due to inefficiency. This week that tone was completely changed and Chairman Meehan was now apparently of the opinion that only minor tweaks were needed to get the CFATS program fully on track.

I would like to be able to report that it was because the reporting by Assistant Secretary Durkovich and Director Wulf that everything was moving along so well in the Department. They did have positive information to report, but that was never brought up in the oral testimony or questioning. Even the generally positive comments on the CFATS/ICSD progress from the DHS IG and GAO witnesses were largely ignored.

Now this was a legislative hearing on HR 4007 and not an oversight hearing, so it is somewhat understandable that the focus of the Chair (the sponsor of the bill) was on HR 4007 not the performance of ISCD. But this is exactly why Congress was completely surprised in December of 2011 by a news report of a leaked internal ISCD report on the problems with CFATS. They had spent all the time at hearings asking questions supporting or detracting various legislative proposals for updating CFATS that they completely ignored the problems the program was having (and I had been reporting on).

The CFATS program has come a long way since those dark days and Director Wulf and his people deserve the credit for pulling the program up by its bootstraps without any assistance from Congress or much of the remainder of the Administration for that matter. But the Department still has some problems to resolve (PSP implementation and the Ammonium Nitrate Security Program being the big issues) and Congress needs to fully understand those problems and their implications before they start changing the CFATS program.

Before this Committee held a legislative hearing on HR 4007, they should have held a long overdue oversight hearing on the current state of the CFATS program. A public review of the progress to-date on resolving the problems identified in the 2011 leaked memo and addressing the risk assessment issues identified by the GAO all needs to be done before the public work on HR 4007 should proceed.

I am not naïve enough to think that these hearings are really fact finding efforts. The limited number of probing questions that can be asked in the five minute allotted to each Committee Member does not provide much room for asking tough, probing questions.

No, most of the ‘discovery’ process goes on behind the scenes and the investigative work is done by Congressional staffers. I have no doubt that they understand the issues involved and I know that they have been talking with DHS and industry about these issues. But even they are more focused on the political desires of the Chair (or Ranking Member for the minority staff) and this is appropriate because that is who they work for.

The Members of Congress, however, are responsible to their constituents and the American public for their conduct of the people’s business. The purpose of these hearings is not to discover answers to the problems of the Republic, but to demonstrate to the public that the Member’s know enough about the issues to be able to ask intelligent questions and detect unresponsive, incomplete and unfactual (okay that may be a made up word) answers. It is only when they are able to demonstrate that in a public forum that their constituents can have any confidence that they are knowledgeable enough to pass the laws that will affect our lives.

I was not given that confidence from this week’s hearing.

Moving Forward

Chairman Meehan in his opening statement (sorry you can’t read it you have to watch his video) spoke highly of the bipartisan support that this bill has and how much support it has from the competitive committee for CFATS oversight (The House Energy and Commerce Committee). The lone Democrat to sign on as a co-sponsor, Rep. Gene Green (D,TX), has long been a supporter of the CFATS program with relatively little in the way of a personal agenda for that program.

Both Rep. Thompson (D,MS; the Ranking Member of the Committee) and Rep. Clarke (D,NY; the Ranking Member of the Subcommittee) have well understood and long standing expectations on what CFATS legislation must have in the way of provisions that must be included for them to support the bill. Some sort of IST language and worker participation proposals would have to be included for them to support the bill. Neither of them is strident enough to demand full IST implementation, but some mention of IST would have to be made. And the same goes for worker participation; general language encouraging worker participation would probably be enough to gain their support on those grounds.

Of course, there is almost certainly no need for their support to break the bill out of Committee, or even to get it through a floor vote. This is almost certainly a bill for which the full Republican Caucus would vote.

But, if Meehan and Chairman McCaul (R,TX) cannot get Thompson and Clarke to sign off on the bill, it has absolutely no chance to make it to the floor in the Senate, there are too many strident supporters of IST and worker’s rights to allow this bill to be considered, especially in an election year. Even with their support it will be a tough sell. Without it, the bill will be dead before the ink is dry on the Clerk of House’s signature certifying the floor vote.