As I last reported in August, just before Congress recessed to campaign for reelection, the Senate failed to end debate and take up the Cybersecurity Act of 2012, S. 3414 by eight votes (really only seven, as Majority Leader Reid switched his vote so as to be able to bring it up again in the future). Since that time, the Administration has circulated draft Executive Order language, Iran has been accused of cyber attacks on Saudi Aramco and several American banks, Commerce Committee Chairman Rockefeller has probed the Fortune 500 about their concerns with the bill, and Leader Reid has indicated he intends to take up legislation again before the end of the year — possibly as early as this week. And then there was that election last Tuesday.
So whither the Cybersecurity Act? More precisely, are there now seven more votes to move forward on the bill? It seems doubtful: First, the two Senators who didn’t vote on August 2, Mark Kirk (R-IL) and Marco Rubio (R-FL) are not likely to jump on board in support of the bill. Second, none of the 46 Senators who opposed moving forward on the bill in August – Democrat (there were five, excluding Reid) or Republican – lost reelection. The only truly “lame ducks” among the opponents are two retiring Republicans from red states who aren’t likely to switch their votes. Third, looking to next year and the 113th Congress, the three seats Democrats gained in the Senate are held by moderate Republicans who supported moving the bill in August. (For the record, it’s mathematically possible Arizona could still flip, potentially changing one vote.) Thus, without some change in the substance of the legislation or the politics of cybersecurity, perhaps prompted by external events, it’s hard to see a bill getting enacted during the lame duck session or even next year. Unlike healthcare, the deficit, taxes, and spending – prominent issues on which Obama ran and claims some popular affirmation for his position – cybersecurity was not major pillar of the campaign. The spirit of compromise may well surface on Capitol Hill in the next few weeks, but it’s likely being reserved for the fiscal cliff issues.
We will continue to update you on significant developments regarding this legislation and/or any executive branch action as they occur.