Cybersecurity legislation failed in the Senate on Thursday, so naturally President Obama is thinking about ignoring Congress and implementing the failed bill through executive orders, according to a report in The Hill.
White House Press Secretary Jay Carney thundered, “In the wake of Congressional inaction and Republican stall tactics, unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed. Moving forward, the President is determined to do absolutely everything we can to better protect our nation against today’s cyber threats and we will do that.”
Proponents of the cybersecurity bill are portraying its demise as an exercise of pointless partisan vandalism, but there were significant objections raised to certain provisions in the bill, and some of the amendments it accumulated. Privacy advocates worried about large-scale information sharing between private firms and the government. The burden of complex new regulations, of debatable security effectiveness, upon private enterprises was a source of concern. Both of those concerns are likely to be exacerbated if these issues are addressed through ham-fisted executive orders.
The cybersecurity bill fell victim to the same flaw that affects a lot of sweeping legislation: it tried to do too much, asking representatives to ignore serious reservations from their constituents, in order to swallow “poison pills” along with less controversial measures that might have been able to win broader support. Some of the Senate bill’s provisions concerned increasing the efficiency of the government’s internal electronic security measures, fostering more robust inter-agency communication. Those provisions would have a much better chance of passing, if presented in a smaller, cleaner bill.
This entire discussion is taking place in response to a “crisis” that hasn’t actually happened yet. The great cybersecurity threats addressed in the Senate bill are largely hypothetical. That doesn’t mean discussing or preparing for them is unreasonable, but it’s worth bearing in mind when the normal process of Senate deliberation is characterized as irresponsibly leaving America open to devastating attack. The concerns about privacy and regulation raised by the bill’s opponents were not unreasonable, or hypothetical.
But, once again, it looks like the concept of “separation of powers” will be discarded, because the Unitary Executive thinks it’s really important to do something. Legislators apparently get to weigh in only when they reach decisions the President approves of, or debate issues that don’t capture his attention.
