End of 117th Congress

Yesterday, before the House and Senate convened the first meetings of the 118th Congress, the two bodies met in pro forma session one last time for the 117th Congress. Some house keeping was done on the House side of the Hill, with various end-of-session Committee Reports being filed. There were five bills introduced in the House. Finally, both the House and Senate adjourned just before noon sine die.

The Congress.gov web site had a bit of a melt-down in the last two weeks of the 117^th Congress, being unable to keep up with the daily publication of the Congressional Record, publication of committee reports and the publication of newly introduced bills. Part of this was due to the last-minute publication of two very large bills (the NDAA and the Omnibus spending bill), and a large number of Committee reports on legislation from the Senate and House Homeland Security Committees. With the inevitable holiday staffing issues, they are just now getting back up to speed.

Hopefully, they will be prepared for a new surge in legislative introductions in the coming weeks.

First Month of 117th Congress

At heart, I am a process person. I like to look at production rates and the numbers affecting them. It is almost a compulsion. So, with that in mind, lets look at the production rates of legislators in the 117^th Congress. NOTE: all numerical data in this post comes from using the ‘Advanced Search’ tool on Congress.gov.

The Data

The best production measure for congresscritters and their staffs, particularly in the first month of the session is the number of bills written. This month we had a total of 884 bills introduced: 719 in the House and 165 in the Senate. To better understand what that means we have to look at the historical record for the last seven sessions of congress, spanning now three administrations.

Congress	Session Bills	January Bills	House Bills	Senate Bills
117th Biden’s 1st	TBW	884	719	165
116th	17,886	1,463	1,093	370
115th Trump’s 1st	9,423	1,272	954	318
114th	14,604	1,171	730	441
113th	12,328	759	521	238
112th	14,762	904	618	286
111th Obama’s 1st	15,724	1,385	954	431

The ‘Session Bills’ provides the total number of bills written during that session of congress, that’s a null data set for the 117^th for obvious reasons. The ‘January Bills’ column provides the total number of bills introduced in Congress in the first January of the session. The ‘House Bills’ and ‘Senate Bills’ provides those number for each of the respective houses of congress.

The Analysis

The 116^th Congress was hands down the most prolific bill writing congress that we have seen. Having said that, statistically it is not an outlier; it is well within three standard deviations (actually, only 1.41σ) of the other six congresses we are looking at in the table. To be sure, the percent standard deviation for the total number of bills written is very high (18.9%), so we have a bill-writing ‘process’ that is not very well ‘in control’.

We see something interesting in the first-January bills number in comparison to the total bills written by that Congress. If bill production were equally spread out across the 24 months that a congress was in session, we would expect to see about 4.2% of the total bills written introduced in that first-January. What we actually see is somewhere between 6.l1% and 13.5%. That ‘13.5%’ is 2.04σ above the average of 8.5%, so it is not technically an outlier, but the average value would be significantly different without it being included: 7.5%. In any case, there are two reasons that the first-January numbers would be expected to be higher; new congresscritters getting their first priority bills written and the reintroduction of bills from the previous congress.

Another thing that stands out is the relatively low number of bills that were introduced in the Senate. The number for the House bills is within 0.42σ of the average while the Senate bills is 1.67σ from the average. If we look at the ratio of House bills to Senate bills (remember that there are 435 Representatives to 100 Senators) the lack of production in the Senate is even more apparent. This year’s ratio is 4.4 versus an average of 2.6 (yes, Senators are more prolific bill writers Representatives, if this were not so we would expect a ratio of 4.35); that is 2.07σ above average and the %Standard Deviation for this set of data is 31.16%, the highest of all the data points being looked at.

The problem with bill introduction in the Senate has apparently been related to organizational issues. With the 50:50 split between the two parties, there has been significant wrangling going on in the Senate leadership about how that body will be working during this session. Once the organizational agreement was reached on Monday, the 25^th, the legislative pipeline in the Senate opened with 118 bills (71.5% of the total) being introduced in the last week, comparative numbers in the House were 207 bills (28.8%). It will be interesting to see if the Senate’s bill writing pace catches up to that of previous congresses.

2020 Election and 117th Congress

While the results are not technically official, the great 2020 election count is essentially over. Baring something strange (and this is 2020), 2021 will see a Biden Administration take office. The House will still be in control of the Democrats and the Senate will (probably) remain in the nominal control of the Republicans. So, what does this all mean for control system security legislation and chemical security legislation in the 117^th Congress?

The Trump Effect

While Trump lost the election, one thing is clear, he has lots of support in the hinterlands of this country. Republican politicians are going to have to acknowledge their anti-government and anti-liberal outlook as they look forward to the 2022 election cycle. How much those congresscritters are going to be willing to work with the Biden Administration will depend in a large amount on Donald Trump. If Trump continues to defy political traditions and maintains an active commentary on political matters, then the Republicans in Congress will have a harder time justifying to their base any cooperation on bipartisan legislation. If Trump folds up his tent and returns to his previous business interests, then moderate, bipartisan legislation will have some chance for success.

Spending

Any legislation, security and otherwise, that calls for significant new spending is going to run into strong opposition in the fiscal conservative faction of the Republican Caucus in the Senate. McConnel had to have their support in the 116^th Congress to keep the Caucus together. If the Trump Effect disappears, McConnel will have more leeway to work with the Democrats. Large spending programs are still going to face serious opposition.

Cybersecurity

With no major cybersecurity attacks on the election system in 2020, there is going to be a lesser demand in Congress to pass major cybersecurity legislation. Republican opposition to government mandates on businesses will continue to insure that any cybersecurity legislation will only call for voluntary compliance with any cybersecurity standards and processes established by legislation. Cybersecurity in industrial control systems will continue to be a low priority area of legislation, unless, of course, there is a significant attack on an industrial system that leads to loss of life, major physical destruction or the shutdown of major services. An attack of that sort would lead to a knee jerk reaction in any Congress that could result in significant (and probably ineffective) mandatory controls being placed on industrial control systems.

One area that will see continued support in Congress will be development of a ‘Cyber Sense’ program in DOE similar to that seen in this session’s HR 360 that was passed in the House. This sort of cybersecurity certification program for industrial control system components used in the grid infrastructure will look like an effective way to ensure security of the grid. What will be overlooked is that the replacement of ‘insecure’ components with cybersecurity certified devices will take years to accomplish if it is actually attempted, something that is far from certain without a specific (and well-funded) mandate. Further, the unfortunate information sharing limitations are sure to have the unintended consequence of impeding researchers from finding new vulnerabilities in these systems.

Additional programs could be seen to be called for in medical device security and automated transportation systems. A cyber sense program for automated transportation systems could probably be the most effective since there is not currently a large installed-device inventory that would have to be replaced. Unfortunately, the most appropriate agency to be tasked with overseeing such a program, the National Highway Transportation Safety Administration (NHTSA) does not have a cybersecurity infrastructure to call upon to oversee such a program. Adding that capability would call for a significant increase in NHTSA funding.

Ransomware

Ransomware is going to continue to be a long-term, high-profile problem going forward that may see a legislative program that actually contains some sort of mandatory provisions. Unfortunately, the prevention of these attacks will not be effective as long as the potential for making money in successful attacks remains so high. Well-funded attackers are going to be able to find ways to subvert security controls. Federal rules will be most effective in mandating reporting requirements, though there will be increasing calls for the prohibition of paying the ransoms. There will also be suggestions that the military, particularly the National Guard cyber units, be given authority to take down ransomware networks that attack State, local, Tribal and Territorial government agencies. How far legislative provision go will depend in large part in how effective ransomware attacks remain.

Chemical Security

When Congress extended the authorization for the Chemical Facility Anti-Terrorism Standards (CFATS) program this year it was for three years. That means that there will not be a major push to make changes to that program in the 117^th Congress. Even if there were a need to reauthorize the program, it is unlikely that the 2020 election would have had any significant change in the ability of the 117^th Congress to agree to what sort of changes are required in the program. The House Democrats could not agree on legislative language for a reauthorization bill in the 116^th Congress, this has been a continuing problem with the differences in outlook between the Homeland Security Committee and the Energy and Commerce Committee.

One area that may see some legislative movement is a relook at the mandate for an Ammonium Nitrate Security Program. Congress passed a mandate for DHS to establish a program to regulate the sale and transfer of ammonium nitrate (a ‘popular’ precursor for large improvised explosive devices). Unfortunately, DHS has been unable to come up with a cost-effective method of implementing that mandate. DHS has quietly suggested that Congress relook at the mandate, removing the costly registration requirements and extending the coverage to other precursor chemicals. The Biden Administration may be more vocal in supporting such a change and we could see some congressional hearings on the topic in the 117^th Congress. I would be surprised to see any such regulation passed in this session. Unless, of course, if there is a large IED detonated successfully in the United States, then I would expect to see quick, over-reactive legislation calling for an expansion of the current mandate.