Senator Wants Commerce Committee to be Big Player in Cybersecurity Legislation

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 information-sharing 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 information-sharing 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."