Special Report: Senate Commerce Committee

Commerce Panel Aims to Flex Its Muscle on Big Issues

On cybersecurity, transportation, and other key topics, Thune wants his committee to throw its weight around.

Staff members sit at their work stations at the National Cybersecurity and Communications Integration Center in Arlington, Virginia, January 13, 2015.
National Journal
Fawn Johnson
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Fawn Johnson
Feb. 23, 2015, 3:01 p.m.

In a par­tis­an cli­mate that spells doom for the vast ma­jor­ity of is­sues, there are at least two policy aren­as left where Re­pub­lic­ans, Demo­crats, and the White House can plaus­ibly come to­geth­er on im­port­ant le­gis­la­tion this year — cy­ber­se­cur­ity and in­fra­struc­ture.

It just so hap­pens that the Sen­ate Com­merce Com­mit­tee owns a piece of each is­sue, shar­ing turf with sev­er­al power­ful pan­els, and Chair­man John Thune is in­tent on hav­ing his com­mit­tee play a ma­jor role in both de­bates — more so than it has in oth­er re­cent high-pro­file fights.

The South Dakota Re­pub­lic­an is ad­opt­ing the the­at­ric­al ad­age that there are no small parts, only small act­ors. “Part of it’s be­ing pro­act­ive. You can kind of sit back and let the game come to you, or you can try and cre­ate. I’ve al­ways be­lieved that of­fense wins games,” Thune said in an in­ter­view.

This is the new Com­merce Com­mit­tee, headed by a new chair­man in Thune and a new rank­ing Demo­crat in Sen. Bill Nel­son of Flor­ida. Fresh­man Sen. Cory Gard­ner, a Re­pub­lic­an from Col­or­ado and a ju­ni­or com­mit­tee mem­ber, marveled that the Com­merce Com­mit­tee deals with everything from Fit­bits to su­per­cook­ies to drones to re­fri­ger­at­ors that tell you when your milk goes bad. “Fit­bits, that’s what you need after the su­per­cook­ies,” he joked.

Com­mit­tee staffers like to say that they over­see oceans and space and everything in between. That’s not far off, con­sid­er­ing that they have worked on is­sues as di­verse as do­mest­ic vi­ol­ence in pro­fes­sion­al sports, pro­tec­tions for pas­sen­gers on tour­ist cruises, and ex­plod­ing air bags. And then there’s this little thing called the In­ter­net.

Yet over the past few years, the Com­merce Com­mit­tee was es­sen­tially a bit play­er in the biggest le­gis­lat­ive de­vel­op­ments. The En­vir­on­ment and Pub­lic Works Com­mit­tee took the li­on’s share of the work (and cred­it) for the two-year sur­face-trans­port­a­tion bill in 2012, even though the Com­merce Com­mit­tee has jur­is­dic­tion over the Trans­port­a­tion De­part­ment gen­er­ally, road and bridge safety, and rail. Of five cy­ber­se­cur­ity bills signed in­to law last year, just one came from the Com­merce Com­mit­tee.

Thune, who as­sumed the Com­merce Com­mit­tee chair­man­ship from Sen. Jay Rock­e­feller, who re­tired last year, is lay­ing the ground­work for his pan­el to con­trib­ute sub­stant­ively to cy­ber­se­cur­ity and in­fra­struc­ture, both ex­pec­ted to be big de­bates. While Com­merce won’t take the lead on either bill, Thune sees the com­mit­tee’s work as crit­ic­al to the ad­vance­ment of each policy.

For cy­ber­se­cur­ity, the com­mit­tee will put to­geth­er a pro­pos­al on data-breach no­ti­fic­a­tion and data se­cur­ity to be ready when the Sen­ate In­tel­li­gence Com­mit­tee comes out with its broad­er bill on pro­tect­ing the na­tion’s ma­jor tech­no­logy net­works.

Thune has un­fin­ished cy­ber­se­cur­ity busi­ness left over from last year. He was a key play­er in pas­sage of le­gis­la­tion that co­di­fies a part­ner­ship between the Na­tion­al In­sti­tute of Sci­ence and Tech­no­logy and the private sec­tor to de­vel­op vol­un­tary cy­ber­se­cur­ity stand­ards. But he says a cru­cial piece of that puzzle is still miss­ing: an in­dustry-gov­ern­ment part­ner­ship to share in­form­a­tion about cy­ber­threats. Ever the team play­er, Thune is wait­ing for the Sen­ate In­tel­li­gence Com­mit­tee to de­vel­op cy­ber­se­cur­ity le­gis­la­tion be­fore diving in with his own pro­pos­al. But he wants to make sure that piece isn’t ig­nored as le­gis­la­tion moves for­ward.

“We also have a fairly im­port­ant role be­cause the FTC is un­der our jur­is­dic­tion. And so the Fed­er­al Trade Com­mis­sion is the hook that draws in the Com­merce Com­mit­tee on that dis­cus­sion,” Thune said. On data-breach no­ti­fic­a­tions and in­form­a­tion-shar­ing, he said, “we’ll have an act­ive role.”

One key area of dis­agree­ment has already popped up — a pro­pos­al to pree­mpt state law on no­ti­fy­ing cus­tom­ers about breaches in data. Demo­crats don’t want strong state laws to be su­per­seded by weak­er fed­er­al pro­tec­tions, while Re­pub­lic­ans are angling for a uni­form stand­ard across the coun­try. Even here, however, Thune is em­phas­iz­ing the need to find agree­ment with Demo­crats as a way of mov­ing le­gis­la­tion for­ward, rather than pick­ing par­tis­an fight.

“I think we can all agree that there’s prob­ably go­ing to be a really im­port­ant role for the [at­tor­ney gen­er­al] in each of these in­di­vidu­al states,” he said, in a nod to the states’ role in pro­tect­ing con­sumers’ data.

For in­fra­struc­ture, the Com­merce Com­mit­tee will pre­pare lan­guage on freight rail, which is long over­due, and high­way safety. If all goes well, those isol­ated parts will be in­ser­ted in­to a sur­face-trans­port­a­tion bill that must be reau­thor­ized by May 31.

Here again, ad­vance plan­ning is crit­ic­al to keep­ing up with an evolving policy con­ver­sa­tion. “My ar­gu­ment has been, May 31 is not far out there. The soon­er we start think­ing about how we’re go­ing to do this, the bet­ter off we’re go­ing to be,” Thune said.

Com­mit­tee Demo­crats are happy to en­gage in this kind of for­ward think­ing, un­der­stand­ing that is how they win crit­ic­al seats at the ne­go­ti­at­ing table down the road. Both Thune and Nel­son are vet­er­ans when it comes to le­gis­lat­ing, and they are well aware that act­ive com­mit­tees can have a big im­pact on is­sues that may be fly­ing un­der the radar now but will rear up be­fore the en­tire Con­gress later, and prob­ably at a crisis mo­ment.

“I’ve liked the fo­cus on trans­port­a­tion and in­fra­struc­ture,” said Sen. Amy Klobuchar, a Demo­crat from Min­nesota and vet­er­an com­mit­tee mem­ber. “Hope­fully, this will turn in­to some le­gis­lat­ive ac­tion.”

Thune sees the “crisis” mo­ments in Con­gress as op­por­tun­it­ies. On in­fra­struc­ture, he is already try­ing to con­vince his Re­pub­lic­an col­leagues that some type of tax re­form could be linked to in­fra­struc­ture spend­ing to move both pri­or­it­ies now, rather than wait­ing and hop­ing for a Re­pub­lic­an pres­id­ent to re­work the cor­por­ate tax struc­ture. Without the hook of high­way fund­ing, it’s hard to ima­gine that tax re­form hap­pens un­der the Obama ad­min­is­tra­tion if there isn’t an in­cent­ive for Demo­crats to play ball.

Thune is well aware that taxes are far away from the Com­merce Com­mit­tee’s jur­is­dic­tion, but he also be­lieves that com­mit­tee mem­bers should pay at­ten­tion to the broad­er dy­nam­ics play­ing out else­where in the cham­ber so they can jump in­to the de­bate when the time is right.

Nel­son was quick to point out that both he and Thune also sit on the Fin­ance Com­mit­tee, which gov­erns the fed­er­al tax sys­tem. He smiled know­ingly when asked about Thune’s tax-for-in­fra­struc­ture idea. “It sounds like he’s en­lightened,” Nel­son said.

Nel­son and Thune like each oth­er, and their staffs get along, too. (Many of them are hol­d­overs from pre­vi­ous chair­men and rank­ing mem­bers, which helps with con­tinu­ity on com­plex is­sues.) Nel­son says the friendly re­la­tion­ships among mem­bers gives the com­mit­tee an edge when it comes to big is­sues that tend to cross party lines, such as sur­face trans­port­a­tion. “That might be a good place where the two top mem­bers, if they got along (wink), can dir­ect the staff to get along (wink), and get some pro­gress go­ing,” he said.

As it happened, Nel­son was con­duct­ing his in­ter­view with Na­tion­al Journ­al in the ante­room out­side the Fin­ance Com­mit­tee, which was hold­ing a hear­ing on the In­tern­al Rev­en­ue Ser­vice’s budget. As Thune walked in, Nel­son ac­know­ledged him. “There’s the big man now. Hey John, we’re talk­ing about you!”

Thune just smiled, “Uh-oh.”

Nel­son had been say­ing that he and Thune have a good re­la­tion­ship (Thune later con­curred) and that they had agreed last year that they would con­duct the com­mit­tee in a bi­par­tis­an man­ner, fo­cus­ing on areas where Demo­crats and Re­pub­lic­ans could reach agree­ment. That doesn’t mean they won’t tackle big is­sues — Thune wants to re­write the Tele­com­mu­nic­a­tions Act, after all — but it does mean they are look­ing for ways to work through the grid­lock.

There are a lot of seeds to be planted early in the year, and it’s just a mat­ter of time be­fore the mem­bers see which ones bear fruit. “I real­ize you can’t do everything, and you have to pick and choose,” Thune said. “Already in our hear­ing sched­ule, we’re cov­er­ing an aw­ful lot of bases.”

This art­icle has been up­dated to be more spe­cif­ic about the fo­cus of the Com­merce Com­mit­tee’s cy­ber­se­cur­ity plans.

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