The Public Eye with Eric Chabrow

The Mystifying Ways of Congress

Getting Legislative Approval Without a Vote
The Mystifying Ways of Congress

Congress, like the Almighty, works in mysterious ways.

Two happenings this past week show how Congress employs its bewildering rules in the quest to change how the government governs. One involves establishing rules to regulate the nation's critical IT infrastructure and the other deals with the first major restructuring in a generation of the National Institute of Standards and Technology.

Rep. Jim Langevin, the Rhode Island Democrat who co-chairs the House Cybersecurity Caucus, introduced a bill Wednesday called the Strengthening Cybersecurity for Critical Infrastructure Act. It would allow the administration to create a more robust set of regulations for the nation's critical IT infrastructure, the web of networks that control the power grid, communications networks and financial systems, and which is overwhelmingly owned and operated by the private sector. The bill, HR 6351, would expand the authority of the Department of Homeland Security to create, verify and enforce measures to protect these critical information systems. Langevin explains the bill also would require DHS to work with industry, the Defense and Commerce Departments and NIST, as well as sector specific regulatory agencies, in creating these measures. In explaining his rationale for introducing the bill, Langevin issued a statement that says:

"Much of our critical infrastructure lies in private hands that are often driven by profit motives, not security. A lack of regulation on the security of control devices has led to a system that discourages open reporting of problems and rewards ignoring potentially critical concerns. Unfortunately, our government currently lacks the authority to adequately protect our nation's interests."

It's such a provision that has so far prevented the Senate from passing its version of a comprehensive cybersecurity bill. With lawmakers heading home for the midterm election, and not expected to do much when they return for the lame-duck session, chances that the House - let alone the Senate - would enact Langevin's bill are infinitesimal. Still, there's a way the measure could become law.

If the Senate ever passes its version of the National Defense Authorization Act - a Republican filibuster last week blocked a vote on the bill that contains a provision to repeal the don't ask, don't tell law banning gays from serving openly in the military - then House and Senate conferees could work out differences between the two bills; both versions contain a number of IT security provisions. Rules governing these conferences allow negotiators to look for language in other bills to be included in a final bill. Thus, it's conceivable that the language in HR 6351 could appear in a compromise National Defense Authorization Act. Whether conferees or other lawmakers want that language in the defense bill is another matter.

On NIST reorganization, the agency - part of the Commerce Department - announced that effective Friday, it will reduce the number of laboratory units, its main research and development components, to six from 10. NIST also is creating three career associate director positions responsible for the labs, extramural and administrative programs and eliminating the post of deputy director. These are old plans - in the works for a year - and were included in the America Competes Reauthorization Act that passed the House but never came up to a vote in the Senate. NIST reorganization isn't controversial, but it got mixed up in a partisan bickering over billions upon billions of dollars in spending - as much as $85 billion by one calculation - America Competes would have authorized for an amalgam of engineering, research, science, technology and training programs. The failure to enact America Competes seemed to have doomed the NIST reorganization.

But there are a lot of smart people working in government, and one figured how to reorganize NIST without the need to pass a new law. The NIST reorganization could move forward because of a provision in the appropriations act that funds NIST. That law allows the reorganization of offices, programs or activities provided the House and Senate Committees on Appropriations are notified 15 days in advance of "reprogramming of funds." Not only did NIST provide sufficient notification, but the chairs and ranking members of the House and Senate Appropriations Committees' Commerce, Justice and Science Subcommittees signed off on the realignment. No majority vote of identical bills in both houses and a presidential signature needed; just the blessing of four congressmen along with the White House Office of Management and Budget and the commerce secretary.

Not all of the original reorganization plan was adopted. Congress still needs to put its stamp of approval on a move to promote the NIST director to undersecretary for standards and technology in the Department of Commerce.

Still, imagine how efficient Congress would be if this process could be used to enact other pieces of legislation. It also would give lawmakers more time to campaign.



About the Author

Eric Chabrow

Eric Chabrow

Retired Executive Editor, GovInfoSecurity

Chabrow, who retired at the end of 2017, hosted and produced the semi-weekly podcast ISMG Security Report and oversaw ISMG's GovInfoSecurity and InfoRiskToday. He's a veteran multimedia journalist who has covered information technology, government and business.




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