The key House committee with jurisdiction over privacy legislation is changing from top to bottom, undergoing as big a change as any committee in Congress, and is experiencing the largest turnover of Members and leadership in more than two decades.  These changes will have a profound impact on not just who is driving the privacy agenda but also how quickly the committee can act. 

The House Energy & Commerce Committee has jurisdiction over privacy legislation and the Federal Trade Commission and Federal Communications Commission, and in the past has tried to tackle privacy and consumer-protection legislation in a bipartisan fashion.  In the last Congress, the drivers of the debate on privacy legislation were the Subcommittee leaders:  Congressmen Rick Boucher (D-VA) and Cliff Stearns (R-FL), along with Congressman Bobby Rush (D-IL) and full Committee Chair Henry Waxman (D-CA) and Ranking Member Joe Barton (R-TX), one of the founders of the Privacy Caucus.  But in this Congress, the players are almost completely different.  For starters, Rep. Boucher is out of Congress, Barton is out of a leadership role, Waxman is out as Chair, Upton is in, and Rep. Stearns is now chairing an Oversight Subcommittee.  Taking Boucher’s place is Rep. Greg Walden (R-OR), who has not been particularly involved on privacy issues and is more likely to defer to Rep. Mary Bono Mack (R-CA), who is the new chair of the Consumer Protection Subcommittee.  What that means is that the Members who led the long discussions with industry last year on drafting a privacy bill will no longer be in the room as the Consumer Protection Subcommittee considers privacy legislation.

On top of this change in the leadership of the Committee is stunning change in the membership of the Committee.  Nearly one-third of the Committee members will be new to the Committee (and many new to Congress).  That represents a huge turnover and like any institution it will take time for that many new Members to be absorbed.  From a practical perspective, it also means that the learning curve for a significant percentage of the Committee will be steep, and privacy issues will be no different.  So if Chair Bono Mack wants to make privacy a key part of her agenda, and she certainly has been active on FTC issues in the past, then she will need to educate the Members about the issues so they get comfortable with the substance and hear from the stakeholders.  Thus, if privacy legislation is going to get attention then first we can expect a number of hearings to educate the Members and expose them to the various privacy issues that many people have been debating for years (but not the Members who were first elected two months ago).   

As a result of this change at the top, and at the bottom, it is likely that the House Commerce Committee will move slowly on privacy legislation in 2011.  There will be opportunities for oversight, and indeed much of that activity can be driven by the Chair without input from rank-and-file Members, but it will be late in the year before one can anticipate significant legislative action on privacy. 

The story in the Senate is far different, and I’ll explore that topic in my next post.