S 3405 Dies in the Senate

Yesterday Sen. Johnson (R,WI), Chair of the Senate Homeland Security and Governmental Affairs Committee, called for the Senate to consider S 3405, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018, under the unanimous consent process. Instead of the substitute language reported out of Committee, Johnson offered a second substitute as an amendment. Sen. Carper (D,DE) objected, and the consideration was prevented.

Sen. Johnson published a press release on the situation that would make it appear that he was being blindsided by the opposition to the bill. A reading of the Congressional Record for the debate between Johnson and Carper makes it clear that the situation is complicated. What is clear from the debate however is that Johnson is clearly upset by the failure of the two House committees to come up with a reauthorization bill and then at the last minute come up with a two-year extension of the CFATS program that apparently disregards the work done by the Senate Committee. The fact that Johnson had to go to someone outside of the leadership of the two House committees with CFATS oversight responsibility to get a companion bill introduced made it clear that he knew about the opposition to his proposed reforms in the House.

Unfortunately, the version of S 3405 that Johnson asked the Senate to approve (essentially unseen) was not printed in the Congressional Record. Neither was the extension bill that Carper said in the debate he was introducing.

Carper offered Johnson a way out of yesterday’s immediate conflict; withdraw the unanimous consent request. Johnson declined. They both agreed to continue to work together to work out the problems with the S 3405. Johnson, however, said that he would rather see the CFATS program die than see a short-term extension approved without some sort of program reforms. It was not clear from yesterday’s debate what reforms would be the minimum acceptable.

I suspect that the minimum would be the explosive exception and the recognition program. Unfortunately, it may be just those reforms that Secretary Nielson was concerned about when she sent her letter to Johnson (and presumably Rep. McCaul (R,TX) and Rep. Walden (R,OR). That is not certain because that letter has not yet been made public.

I have not yet seen the Committee Report on S 3405 (still not published), but the reported language has been published. It was nearly identical to the language that was proposed in HR 6992. Of course, that language was still not the language that Johnson was asking to have adopted today.

Johnson faces a difficult decision on the CFATS authorization. The bipartisan support Johnson received in Committee for the industry favorable reforms included in S 3405 indicates that they might survive a Democratic House next year, but the opposition of the DHS to those reforms indicates that there may be opposition from his own party in subsequent Senate hearings. It apparently looks to him like those reforms have to pass in this session of Congress or not pass at all.

It’s just too bad that he did not try to get this bill to the Senate floor before Nielsen became aware of the problems. Or maybe it is not.

Now it comes down to how much time both sides have to work out a deal. Right now it looks like it might be easier to pass immigration reform.