Another study in congressional paralysis

Posted: March 02, 2012

One question members of Congress constantly hear is: "Why can't you people get anything done?" The truth is that there are all kinds of reasons: politics, disagreements about substance, and even the physical process of writing bills.

For many, it defies common sense that these obstacles can't be overcome, but the Senate is about to demonstrate why not. For the past several weeks, the wheels have been grinding on cybersecurity legislation, which, in an ideal world, would protect the nation from computer hackers. The Senate is a wonderful and unique place, but when things come together just right, no institution expends more energy getting nothing done.

Congress has a special talent for taking a sensible goal like cybersecurity and turning it into an all-consuming effort to remake our regulatory infrastructure. Joe Lieberman, the chairman of the Senate Homeland Security Committee, kicked things off two weeks ago when he rolled out what Politico called "a doorstop of a bill." It would give the Department of Homeland Security the power to regulate industries operating "critical infrastructure." Unfortunately, that could mean just about anything.

Put the prefix cyber in front of anything, and it sounds dangerous and exciting. But the list of potential hacking targets - the power grid, banks, telecommunications, and more - quickly adds up to a lot of regulatory power over a huge swath of the economy. With so much at stake, turf battles abound. Every committee wants a piece of the action: Commerce, Energy, Armed Services, etc.

John McCain, the ranking Republican on Armed Services, finds himself opposed to his friend Lieberman. He argues that restrictions that keep businesses and government from sharing information and technology pose the biggest obstacle to cybersecurity. Businesses, after all, have as much interest as government in protecting themselves from hackers. So McCain's bill authorizes greater coordination and updates laws on information security.

On top of that genuine difference in philosophy is tension created by a murky process for bringing a bill to the Senate floor. As majority leader, Harry Reid has signaled his determination to start debate on a basic bill in the next couple of weeks. But no one knows exactly when that might be, or even what the bill might contain. He could start with Lieberman's "doorstop" or offer something else; he might try to cut off amendments, or he could allow an open process.

In a normal year, these obstacles would slow things down; in an election year, political opportunism could encourage Reid to speed things up so they can reach their natural conclusion: failure and finger-pointing. Just as Democrats feel they seized the tax issue by pushing payroll-tax cuts, they see a chance for political gains on security in pushing even a failed bill.

Of course, public sentiment could also derail the train. When the entertainment industry pushed for online piracy laws, civil libertarians, websites, and public-interest groups spoke up with a ferocity that left congressional heads spinning and the legislation lying in a heap. A cybersecurity bill could ignite a similar reaction.

Lieberman has already felt that heat once. An early version of his bill allowed the president to disable Internet communication in an emergency. The senator insisted that it created no such "Internet kill switch" - and then removed the offending language.

So if the bill comes out badly, or not at all, it's not because of a conspiracy of "obstruction," but just a bunch of real obstacles: honest differences, a vaguely defined subject, jurisdiction, weak leadership in an unruly Senate, and, always, politics.

Still, politicians' urge to "do something" is strong, though its benefits are questionable. If Homeland Security wins responsibility for cybersecurity, consider yourself forewarned. This is the agency that has given us ever more expensive airport scanning technology that still gets confused if you are wearing a belt.


John E. Sununu, a former U.S. senator from New Hampshire, wrote this for the Boston Globe.

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