What a Divided Government Could Mean for Tech Policy

One day after Tuesday’s midterm election, neither political party can yet claim control of either branch of Congress. As it stands, the House leans Republican, the Senate leans Democratic, and it could be days or weeks before the electoral dust settles.

Though the “red wave” predicted by many did not come to fruition, a change in control of at least the House appears likely, and changes in either or both chambers will have major ramifications for federal cybersecurity, tech policy and how the Biden administration governs.

“If we see a split Congress, you’re probably going to have more gridlock on the Hill, and if Congress is fully controlled by one party and the presidency the other, one can only imagine the head-butting in this current political environment,” Stan Soloway, president and CEO of Celero Strategies and a former Defense Department acquisition official, told Nextgov. “If both Houses go, it becomes a nightmare to get anything done.”

Soloway said a split Congress probably prevents any major tech legislation, like an overarching privacy bill, from passing. Climate legislation, too, would be stymied. However, Soloway said federal IT modernization “remains nonpartisan”—one of the few areas of agreement for both parties—along with the desire to improve government service delivery. That could be good news for federal IT budgets, which have increased in the past five years under Republican and Democratic presidents and congresses. 

However, Soloway warned that a Republican-led House—with the power to appropriate funds—is likely to review and alter funding levels on everything from U.S. military aid to Ukraine to the Technology Modernization Fund.

House Minority Leader Kevin McCarthy, R-Calif., who is in line to become speaker if Republicans take control of the chamber, has also signaled the House would repeal the influx of IRS spending enacted by Democrats. Slashed funding at the IRS could slow its six-year IT modernization effort—which includes improvements of taxpayer service and a major overhaul of its outdated IT infrastructure—and could alter how the agency regulates cryptocurrency.

McCarthy has also signaled that Republican-led committees would investigate the Biden administration’s COVID-19 response, the Justice Department and the withdrawal of troops from Afghanistan. Soloway said the makeup of the committee chairs in a House-flip will be key in how Congress performs oversight.

“Regardless of what happens, look at the committee chairs because that’s where the power is,” Soloway said. “There will be a lot of jockeying.”

Congress loses cybersecurity expertise

Regardless of the races still in doubt, Congress will shed significant cybersecurity policy expertise. Should Democrats maintain a majority in the House, the chamber will still lose Rep. Jim Langevin, D-R.I., to retirement. With his key post on the Armed Services Committee, as well as his leadership of the Congressional Cybersecurity Caucus and membership in the Cyberspace Solarium Commission, Langevin was key to propelling a host of bipartisan provisions into law, most notably, the creation of the office of the national cyber director.     

Rep. John Katko, R-N.Y., and Sen. Rob Portman, R-Ohio, working across the aisle with Democrats, were also instrumental in gaining more authorities and bigger budgets for the Cybersecurity and Infrastructure Security Agency. But both are also leaving Congress.

In the more likely event that Republicans take the House and even if Katko’s replacement—who would head the Homeland Security Committee—similarly wants to buttress CISA, leadership may have other ideas. McCarthy has said he plans to prioritize addressing inflation, which could translate into reduced spending on cybersecurity.  

Sen. Maggie Hassan, D-N.H., chair of the Senate Homeland Security and Governmental Affairs Subcommittee on Emerging Threats and Spending Oversight, won her race Tuesday against Republican challenger Donald Bolduc. Hassan has been an outspoken proponent of strengthening federal cybersecurity policies and, should Democrats retain Senate control, could be an influential figure in future cyber policy discussion.

Another bright spot in last night’s midterms for cyber proponents in Congress comes with Rep. Elissa Slotkin’s victory in Michigan’s District 8 race. Slotkin, a veteran congresswoman and former CIA analyst, has been active in both Democratic and bipartisan tech legislative initiatives. Bills she sponsored include the CISA Cyber Exercise Act, which would establish more oversight in attacks on critical infrastructure and preparedness, and the Bot Disclosure and Accountability Act of 2019, which would require social media companies to improve disclosures on non-human users and accounts. 

Slotkin’s track record also shows her support of other technological initiatives introduced on the Hill, with her cosponsoring of bills focusing on rural STEM education, election technology research and improving community broadband mapping. 

What would this mean for the FCC and FTC? 

The Biden administration may come to rely more on federal agencies, like the Federal Communications Commission and the Federal Trade Commission, to use their rulemaking authority during a split Congress. For example, the FTC is currently considering a proposed rulemaking on data privacy, but the details of the agency’s plan are unclear at the moment.

A congressional stalemate would further stress the importance of filling positions at key agencies. Additionally, changes to committees like the House Committee on Energy & Commerce, which oversees the FTC and FCC, could shift legislative efforts and oversight. The committee is currently chaired by Rep. Frank Pallone, D-N.J., but if Republicans win, Rep. Cathy McMorris Rodgers, R-Wash., will likely spearhead the committee. She has shared the FTC’s privacy goal, but stated it should belong to Congress, not the agency.

“Does Congress clip their wings?” Soloway said, suggesting that a Republican-led Congress could curtail major policy decisions made by independent agencies. 

Should the House flip to Republican control, tech activists expect a slog on meaningful tech reform. 

“If Republicans take over key committees, they’ll be trying to slow the FTC down and throw sand in their gears. So activists will need to keep the spotlight on the agency and demand that Lina Khan push forward over disingenuous opposition,” Evan Greer, director of the online advocacy organization Fight for the Future, said in comments sent to Nextgov. 

Where Section 230 reform could be headed

Section 230 reform has been championed in recent years by both political parties. The language is a portion of the 1996 Communication Decency Act that absolves internet services from being held liable for third party content published on their platform, and it has been a hot-button tech issue as misinformation and disinformation on social platforms has become part of the electoral norm. Section 230 effectively removes accountability for major online platforms, namely Facebook, YouTube and Twitter, from the rhetoric and materials shared across their websites. 

While both political parties have issues with Section 230, they differ in how they aim to address them. Critical of Big Tech’s immunity, Democrats generally feel that the rule prevents the necessary moderation of problematic or offensive content from being shared online. Meanwhile, Republicans took aim at the provision when former President Donald Trump attempted to corral Congress into overhauling or repealing Section 230, alleging it both allowed for the spread of disinformation and unfair censorship of conservative materials published on social media platforms. 

Given the continued presence of Trump-backed GOP candidates in many battleground states, Big Tech and censorship issues also featured in the 2022 midterms. One instance of this came from the campaign of Rep. Lauren Boebert, R-Co., who is working on fending off Democrat challenger Adam Frisch for the state’s District 3 House seat.

Boebert marked her freshman term in Congress with steady allegiance to Trump’s campaign platforms, including targeting Section 230. This year, Boebert cosponsored the Stop the Censorship Act, which would amend Section 230 by limiting a social media company’s immunity for “screening or blocking” content deemed offensive on its platform. It would particularly differentiate the type of content that is “unlawful” from “merely objectionable,” altering what Section 230 can regulate. 

While Boebert’s race has yet to be called, Republican control of the House seems likely. Greer noted that popular tech issues like data privacy and content moderation will intersect with other legislative topics, with broad implications for Americans. 

“What worries me the most is that then there will be a lot of pressure on committee chairs to ‘find the common ground’ between Democrats and Republicans on Section 230,” Greer said. “Republicans thinking changing Section 230 will lead to more free speech online. Democrats think that changing Section 230 will lead to Big Tech platforms doing better content moderation and designing their platforms more safely. They're both wrong.”