As the abnormally heavy snowpack slowly clears from the rooftops of Washington, D.C., a brand-new U.S. Congress is settling into its regular business.
The 119th Congress has plenty on its plate, with privacy and artificial intelligence governance among the topics potentially in the conversation once again for lawmakers. There's much to keep in mind with the composition of the Senate and House and how it could impact the digital policy landscape.
A delicate majority
Republicans control both bodies of the Congress for the next two years. This means they will set the agenda, control the process and enjoy additional resources — such as more staffers to draft and negotiate bills — but there is no easy road ahead to passing legislation.
In the House, only two or three Republican defectors can be lost from any piece of legislation before it fails, unless it also enjoys Democratic support. As has been demonstrated multiple times during the reign of House Speaker Mike Johnson, R-La., this gives small political factions outsized influence over the agenda. What started as a five-vote majority has already shrunk to four with the resignation of Matt Gaetz, R-Fla., and will likely narrow even further in the short term if President-elect Donald Trump’s Cabinet nominees from among the House are confirmed.
In the Senate, where control has shifted from Democrats to Republicans this term, Democratic support will still be required for any bill to pass. The much-maligned yet deeply cherished procedure of the filibuster means the minority party can pull an emergency brake on any legislation and new Majority Leader Thune, R-S.D., says the filibuster is not going anywhere. Removing the procedure, a move often supported by the president-elect, would be a "nuclear option" that all expect would have major long-term consequences for the functioning of bipartisan politics in the country.
Vice President-elect J.D. Vance has just resigned his Senate seat, leaving it temporarily vacant. It will be filled in short order by a Republican to be selected by Ohio governor Mike DeWine. After the new senator is sworn in, with 53 Republicans, 45 Democrats and two Independents in the Senate, contested legislation can only proceed past debate with unanimous support from Republicans, plus the support of seven senators from the minority.
Cruz-ing forward
Commercial data privacy legislation — and most AI governance legislation — always begins its path to passage in the legislative committees with jurisdiction over commerce, which also oversee relevant regulatory agencies, including the U.S. Federal Trade Commission.
This term is set to look different than prior terms, after shifts in leadership in both committees.
Sen. Ted Cruz, R-Texas, who rose to power last term as the ranking member of the Senate Committee on Commerce, Science and Transportation, this week took the gavel of the committee. As he put it in a recent episode of his podcast, being chairman "gives you the ability to drive the agenda that is just qualitatively different" from any other position on a committee.
In effect, no substantive legislative activity under the broad domain of the Commerce Committee can occur without the approval of from Cruz, making him the most powerful voice in the Senate on most tech policy issues.
So, what does the new chair hope to accomplish? As Cruz tells it, his overarching priority as senator is "jobs, jobs, jobs" which translates for him into a few top policy priorities for the committee: Wireless spectrum, AI and energy.
Cruz's podcast remarks on AI clarify the pro-innovation approach he embraces for this emerging set of technologies:
"The Democrats want to regulate the hell out of AI. They want to create essentially a European style prior approval system where any innovation in AI, you have to go to the federal government first. That's a terrible idea. It's an idea that is almost perfectly designed to ensure that America loses the battle for AI and we fall behind the rest of the world. As Chairman of the Commerce Committee, I'm not going to let that happen. I want to maintain a very light touch environment, where innovation is driven from the private sector because I think AI has the potential and, in fact, I think it will be, the same sort of transformational technology that the development of the internet was 25 years ago."
Cruz pointed to the Wall Street Journal op-ed he wrote last year with former Sen. Phil Gramm, R-Texas, which argued President Biden was trying to "put AI on a leash" and contrasted the approach with former President Bill Clinton's approach to the internet in the early '90s.
"The Clinton administration," they wrote, "took a hands-off approach to regulating the early internet. In so doing it unleashed extraordinary economic growth and prosperity," creating a regulatory framework that "faithfully fleshed out the provisions of the bipartisan 1996 Telecommunications Act and provided the economic environment that made it possible for America to dominate the information age, enrich our lives, create millions of jobs, and generate enormous wealth for retirement savers."
Senator Cruz has not been entirely hands-off on AI governance, however. His leadership and support for the Take It Down Act — which would build guardrails around certain types of synthetic pornography — shows that he thinks some AI issues are harmful enough to people to necessitate government intervention.
Closing his podcast remarks, Cruz reiterated how the hands-off approach to internet regulation lays the roadmap for his vision of AI regulation. That said, he also remembered to mention that "Big Tech also has abuses and I’ve focused on that a lot. That's going to be a big focus of the Commerce Committee as well."
Whether and how data privacy fits into any priority around Big Tech abuses remains to be seen. As Punchbowl reported in December, Cruz expects there to be a hard reset on federal comprehensive privacy legislation this term. Last year, he unveiled a laundry list of grievances with the proposed American Privacy Rights Act, recommending instead for policymakers to "consider a standard that starts with the data privacy work in the states — like Texas — that have carefully deliberated and debated the balance between privacy and innovation."
House leadership agrees: Congress is not starting from the APRA or other recently negotiated legislation. They are starting over.
A new era for House Energy and Commerce
After retiring Rep. Cathy McMorris Rodgers, R-Wash., gave her final speech 2 Jan., the leadership of the House Committee on Energy and Commerce passed to Rep. Brett Guthrie, R-Ky.
With years of service on Energy and Commerce, Guthrie is familiar with data privacy issues, but it is difficult for anyone to measure up to the lengthy engagement on the issue that former Chair Rodgers leveraged.
Nevertheless, Guthrie appears ready to start the long road to passing privacy legislation. "What we need to do is have a reset button and start a new process to see where we go," he told Communications Daily in December 2024. "But it’s a priority. ... We're going to get started on it as soon as we’re back in January."
That said, Washington insiders all seem to be hearing the same message from the leaders of the committees: On privacy, they plan to start first with protecting kids and teens before moving on to comprehensive legislation.
The emphatic language about a reset means, even if Democrats wish to retain substantial language from prior bills, there will be a lengthy process of building a new congressional record, with hearings and long hours of negotiations before a bill is brought to markup in either chamber.
On AI governance, the House is likely to be guided at least in part by the recommendations contained in the bipartisan report from House Task Force on Artificial Intelligence, a long-awaited policy document released at the end of the last term. The report deserves close examination for its recommendations around consumer protection, privacy, and other top tech policy areas that fall into the AI governance bucket.
Apart from substantive observations and recommendations, the report includes an interesting section on "Philosophy and Principles."
The section includes a guidepost for policymakers to always "identify AI issue novelty" by first understanding whether issues raised are "truly new for AI duet to capabilities that did no previously exist," an existing issue "that's nature has been changed significantly by AI," or one that remains relevant but has not been changed by interaction with AI systems.
If applied, the set of principles could lead to a cautious and deliberative approach to AI governance at the federal level in the coming years. That said, though the focus may be on innovation, the report identifies numerous areas of concern and congressional engagement on AI issues is not set to slow down any time soon.
'The Squad' has joined the privacy chat
Other recent changes could signal even spicier Energy and Commerce hearings this term.
Yesterday, committee Democrats posted a list of the new members of the committee, including outspoken progressive Rep. Alexandria Ocasio-Cortez, D-N.Y. Republicans announced their own new members of the committee December.
Ocasio-Cortez has spoken up about data privacy issues in the past, most notably during her opposition to the TikTok ban, which she said "doesn’t really address the core of the issue, which is the fact that major social media companies are allowed to collect troves of deeply personal data about you that you don't know about, without really any significant regulation whatsoever."
With fresh and energized Democrats joining under the seasoned leadership of Ranking Member Frank Pallone, D-N.J., there will be plenty of opportunity for their concerns to be heard on privacy, AI governance, and other top priorities.
What’s in a name?
Close observers of congressional minutiae may notice something different about House Energy and Commerce this term. The name of the subcommittee where most privacy proposals starts has been changed, yet again.
In announcing the legal advisors who will serve on the committee, Energy and Commerce Chair Guthrie noted "Giulia Leganski will serve as Chief Counsel for the Subcommittee on Commerce, Manufacturing and Trade." Last term, this subcommittee was known as "Innovation, Data and Commerce." Before that, as I wrote around this time two years ago, it was referred to as "Consumer Protection and Commerce."
Whether removing "data" from the name signals any shift in priority or jurisdiction of the subcommittee remains to be seen.
What is clear is the shakeup in leadership has trickled down to the staff level, though both Leganski and her counterpart on the Subcommittee on Communications and Technology, Kate Harper, are seasoned veterans of the tech policy world.
There is a long legislative calendar ahead with many unknowns. As Washington melts from its current deep freeze, things will no doubt continue heating up for privacy, AI, and related issues.
Please send feedback, updates and favorite Senators' personal podcasts to cobun@iapp.org.
Cobun Zweifel-Keegan, CIPP/US, CIPM, is the managing director, Washington, D.C., for the IAPP.
