Friday, February 7, 2020

CFATS Extension Complicated

Yesterday I received an interesting Tweet® from @DwightFoley:

@pjcoyle have you been following @SenRonJohnson refusal to move a bill to reauthorize #CFATS? You should”

The short answer is of course: yes I have been following these lack of developments on the CFATS reauthorization front. The longer answer is, as always, more complicated than that.

CFATS Extension

A quick recap: The current CFATS authorization language comes from the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (PL 113-254). The termination date in that bill was set at January 18th, 2019. Last year it was extended by the Chemical Facility Anti-Terrorism Standards Program Extension Act (PL 116-2) until April 18th, 2020.

Sen Johnson Activities

With the Republican controlled House not taking any action on the CFATS extension in the first 21 months of the 115th Congress, Sen Johnson (R,WI) introduced S 3405, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2018. This was a comprehensive reauthorization of the CFATS program about which I wrote extensively. The bill was introduced in September of 2018 and marked up and accepted by Johnson’s Homeland Security and Governmental Affairs Committee later that month.

In late November Johnson tried to get the bill to the floor of the Senate under the unanimous consent process, but was blocked by Sen Carper (D,DE).

A modified version of S 3405 was introduced in the House as HR 6992 in November of 2018, but no action was taken on that bill.

A clean extension of the CFATS program, HR 7188, was subsequently introduced in the House in December 2018. Johnson famously objected to that bill complaining that the House did not try to take any action earlier to extend the CFATS program. The bill was never considered.

Political Difficulties

The problem here is that the Republicans and Democrats, while they both generally agree on the need for a CFATS program, have substantially different outlooks on how that program should be structured. Republicans generally avoid detailed regulatory schemes as being too restrictive and costly for businesses. Democrats are more activist oriented wanting to see tighter regulatory control and wanting more recognition of worker participation efforts.

Because neither side actually controls Congress (a simple majority is not really control in either body), the Committees involved in the CFATS authorization process generally have try to reach some sort of reasonable compromise with the non-majority party to try to move legislation forward. The reason for this is that the CFATS program is not ‘important enough’ to bring to either the floor of the House or Senate under the time-consuming regular order. Those processes are reserved for essential political statements of the controlling party (which seldom actually become law), must pass authorization/spending bills, or large scale problems about which there is substantial knee-jerk consensus.

Thus, the CFATS reauthorization legislation is going to have to come to the floor under abbreviated consideration options. In the House this is the suspension of the rules process that requires a supermajority to pass. In the Senate this is the unanimous consent process where the objection of a single Senator will prohibit the bill from being considered.

Lack of Action in 116th Congress

Foley is correct that Johnson (nor any of this other 99 senate colleagues) have taken any action on CFATS authorization in the 116th Congress. Johnson figures that he made his attempt in the 115th Congress and was rebuffed. Since HR 3256, was introduced on the House side last year, he can afford to wait for that body to take action. There is no need for him to expend his political capital formulating an ‘acceptable’ compromise when the House managers are already working that issue.

Unfortunately, HR 3256 has apparently died in the House. Rep Thompson (D,MS) could not build bipartisan support for the bill in the House Homeland Security Committee, so he punted responsibility for that action to the House Energy and Commerce Committee, the second committee of jurisdiction for the bill. To date, that Committee has yet to hold a markup hearing. Hopefully this means that behind the scenes, staffers are still working out compromise language that both sides can reluctantly support to move the bill forward.

There is still time for Congress to act on HR 3256. But as April 18th gets closer, it gets more likely that another short-term reauthorization bill will be required to keep the CFATS program in operation.

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