By Jennifer Martinez - 10/27/12 02:31 PM EDT
Cybersecurity legislation faces long odds of passing Congress this year despite forceful calls for action from the White House and Defense Secretary Leon Panetta.
But there are several roadblocks that could prevent a bill from even reaching the Senate floor, and observers say Congress will likely punt the issue to next year.
One of the chief complicating factors is the packed docket of legislation the Senate needs to complete before adjourning at the end of the year.
"It's so hard. The timing is bad [and] the amount of work that has to be done in the lame duck is so substantial," said Stewart Baker, a partner at Steptoe & Johnson and former assistant secretary for policy at the Department of Homeland Security.
Another key question mark is whether both parties have the political will to hammer out a compromise. Senators met for weeks this summer to try and break the logjam over the Cybersecurity Act of 2012 by Sens. Joe Lieberman (I-Conn.) and Susan Collins (R-Maine) — only to come up empty handed.
After Republicans blocked the Cybersecurity Act from moving forward to a vote, Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Kay Bailey Hutchison (R-Texas) said talks would continue on cybersecurity. They held out hope that legislation could be revived in the fall.
But industry sources say discussions lost steam after the bill was blocked, then came to a standstill as campaign season took hold.
"Not one thing has changed to shift the political dynamic to get [a bill] passed," said one tech lobbyist. "It's going to take a lot of time to find a compromise and it doesn't seem like they're fighting for one. I don't see either side feeling the pressure to compromise."
The lobbyist noted that even if a version of the Cybersecurity Act made it through the Senate, it's doubtful that it would get support in the House.
A departure from Hutchison’s office has added to the general feeling that the cybersecurity talks have lost momentum. Will Carty, who had been the point person for Senate Republicans on cybersecurity talks, left Capitol Hill in September to join Twitter's Washington shop.
Even Lieberman, the bill's lead author, isn't enthusiastic about the prospects for passing cybersecurity legislation before the end of the year. He is set to retire at the end of the session.
"The senator, by nature an optimistic man, puts the odds of passing comprehensive cybersecurity legislation in the lame duck session at less than 50-50," said Leslie Phillips, a spokeswoman for the Senate Homeland Security and Government Affairs Committee that Lieberman chairs.
The outcome of the election will also affect whether a bill gets done. Baker said if GOP presidential candidate Mitt Romney wins the White House, his new administration would determine the legislative path forward on cybersecurity. It would also determine whether to carry over a cyber executive order from the Obama administration — assuming one is issued at all.
"I don't think an executive order on this topic by a president that's just been defeated is likely," Baker said.
Still, Baker said Republicans might be more open to compromise on cybersecurity legislation if Obama wins and the White House puts forward an aggressive draft executive order.
The executive order, if issued, will likely be released in December, but could come as early as mid-November, according to a former administration official.
During a keynote address this week, Homeland Security Secretary Janet Napolitano said the draft order has been circulated but "the president has not had the opportunity to review or make a final decision about it." She said the administration will be keeping a close eye on whether the Senate can make any progress on a bill in the lame-duck session, but stands ready to issue the order.
"But again, my hope [and] the ideal way to go is through Congress, but if Congress cannot act, then the executive branch is going to have to," Napolitano said.