HR 5186 Introduced – CISA Leadership

Earlier this month, Rep Garbarino (R,NY) introduced HR 5186, the CISA Leadership Act. The bill would set the term of the Director of the Cybersecurity and Infrastructure Security Agency at five years and would establish the position as one requiring a presidential appointment with the advice and consent of the Senate.

CISA Director

This bill would amend 6 USC 652(b). First it would add the following at the end of paragraph (1):

“The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

Then it would insert a new paragraph (2), Term. That paragraph would establish the term of appointment for the Director to be five-years.

Moving Forward

Garbarino is a member of the House Homeland Security Committee to which this bill was assigned for primary consideration as are five { Langevin (D,RI), Katko (R,NY), Clarke (D,NY), Norman (R,SC), Thompson (D,MS), and Katko (R,NY)} of his six cosponsors. With Thompson and Katko being Chair and Ranking Member respectively, there is certainly enough influence to see this bill be considered in Committee, probably at the next markup hearing. I see nothing in the bill to engender any significant opposition. I suspect that it will draw enough bipartisan support for it to be considered under the House suspension of the rules process. It would certainly pass in the House.

Commentary

It seems odd that the first part of the amendment to §652, referring to the Director being appointed by the President with the advice and consent of the Senate, was not included in the original language. The current Director, Jen Easterly, was nominated by the President and confirmed by the Senate. Everyone knew this was a requirement for the position, it just was not spelled out in the authorization language in §652.

There have been some people that thought that the second part of the §652 amendment (5-year term limit for the Director) was some sort of insult or slap at Director Easterly. With the bipartisan nature of the sponsors, that was certainly not the intent. The language proposed in this bill is nearly identical to that found in 49 CFR 114 that sets the 5-year term limit for the TSA Administrator.

The 5-year term is meant to emphasize that the CISA Director is not really a political appointee. While appointed by the President, the Director is supposed to be a cybersecurity professional with large-program administration experience.

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.

New CFATS Bill in House

Earlier this week, Rep. Dent (R,PA) introduced HR 5186, the Continuing Chemical Facilities Antiterrorism Security Act of 2010. This legislation would extend the current CFATS authorization until 2015 and add provisions to provide for both a chemical security training program and a chemical security exercise program under FEMA. All three provisions are identical to those found in S 2996, making this a ‘companion bill’ in the House. Little Chance for Consideration The purpose of companion bills is to allow committee work and floor votes to move forward in both houses of Congress at the same time. This would thereby reduce the amount of time that might take a controversial piece of legislation to wend its way through the political process. Dent’s bill is unlikely to receive committee consideration since both committees that it has been referred to (Homeland Security, and Energy and Commerce) have already passed HR 2868, which already addresses the issue of the status of CFATS. If there had been a Democrat co-sponsor, particularly a committee or subcommittee chair (and there are no co-sponsors), I would have given the bill some chance for consideration. There has been one Congressman that has expressed regret for his support for HR 2868 because of the slow pace of ISCD’s inspections of high-risk chemical facilities. That is hardly a ground swell of changing opinions on what is necessary for the CFATS program. Since there will almost certainly be a one-year CFATS extension in the Homeland Security Budget bill that should be introduced shortly, it is extremely unlikely that a five year extension will receive active consideration at this time. No Movement in Senate Besides which, there is no sign that there is any serious potential for movement on S 2996 in the Senate. The Senate Homeland Security and Governmental Operations Committee took a pass on deciding between considering S 2996 and HR 2868, electing to wait instead for the DHS draft language for a CFATS reauthorization bill. That essentially killed any chance for passage this year because of the quickly approaching summer recess and the following election season. We are still expecting at least one more ‘comprehensive chemical security bill’ to be introduced in this session. Sen. Lautenberg has been promising such a bill since last November when HR 2868 was delivered to the Senate. Given his past chemical security history, I would expect that the compromises that were made in the HR 2868 language in the House would essentially be erased in his proposed legislation. Stronger language on IST mandates and specifically providing for States to set higher security standards would be key points of a Lautenberg bill. Budget Problem One thing could upset all of this careful reasoning, the failure to include CFATS extension language in a budget bill. There have been some rumors that the Democrats might not try to write individual budget bills this year, going instead with a relatively non-controversial omnibus bill. This reflects concerns about the growing deficit and the inevitable attacks the Republicans would make on the campaign trail on votes on budget bills. Limiting the budget to a single bill would limit the attacks. A CFATS extension might miss making it into such a bill. The size of the CFATS program is small and it is relatively ‘unimportant’ to most members. I don’t think that this would happen, but it is always a possibility.