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‘Votes Aren’t There’

House Speaker Silent on Privacy Bill's Potential Opposition

It appears House Republican leadership isn’t willing to bring the House Commerce Committee’s bipartisan privacy bill to the floor because it lacks the necessary votes to pass, members and sources close to discussions told us Wednesday.

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The committee is scheduled to mark up the American Privacy Rights Act and children’s privacy legislation Thursday (see 2406210046). Rep. Tim Walberg, R-Mich., told us his understanding is that House Speaker Mike Johnson, R-La., won’t bring the bill up if it passes committee: “What I’ve heard is they don’t want to bring it up on the floor without the votes to pass it,” said Walberg. “And it appears the votes aren’t there.”

Johnson’s office didn’t comment Wednesday. Lobbyists told us Johnson met Tuesday with Chair Cathy McMorris Rodgers, R-Wash., and four other Republican committee members: National Republican Congressional Committee Chairman Richard Hudson of North Carolina, Bob Latta of Ohio, Brett Guthrie of Kentucky and Jeff Duncan of South Carolina. Offices for Rodgers, Hudson, Latta, Guthrie and Duncan didn't comment.

I haven’t heard House Republican leadership say that specifically, but that was the understanding,” Guthrie told us Wednesday. “I would like to pass a bill out of the Energy & Commerce Committee that has the commitment from leadership to come to the floor, and I’m not sure this specific bill does. I haven’t heard them say specifically it will not come to the floor, but my preference is to pass something out of committee that can pass the floor, and they have work to do to get there.”

Lobbyists told us Johnson on Tuesday went as far as recommending Rodgers pull the bill from the markup. A House staffer told us Latta has concerns with the bill as currently drafted and is “engaged in conversations with colleagues to determine next steps.”

Walberg said he believes the bill’s private right of action is the “biggest concern.” Senate Commerce Committee ranking member Ted Cruz, R-Texas, told us previously he doesn’t support the provision (see 2404150059). Members were scheduled to further discuss markup plans Wednesday afternoon, said Walberg.

House Innovation Subcommittee Chairman Gus Bilirakis, R-Fla., told us the plan is to move forward with the full committee markup: “I’m feeling good. We’re making a lot of progress. It looks like we’re going to go forward and pass it out of committee tomorrow, so I’m really excited. ... We’re working together to get the best bill forward. That’s all I can say.”

Lobbyists told us potential objections from the California delegation could further complicate the path forward for APRA. California Democrats have often objected to tech industry-related legislation. California Reps. Zoe Lofgren, Eric Swalwell and Lou Correa voted against a package of bipartisan tech antitrust bills in 2021. Lofgren said Wednesday that it sounds like the House Commerce markup is “falling apart.” She suggested the committee shouldn’t be moving forward but noted she’s not a member. California Democrats aren’t in favor of preempting stronger state laws like those in California, she said: “In many other cases where Congress has acted for consumer protection, they set a floor, not a ceiling, and they should do the same with privacy.”

In response to a question about APRA, Correa told us Wednesday: “Privacy is very important to this country, so I want to make sure it’s good, solid legislation that’s good for the country and good for the state. We’ll check it out.”

The California Privacy Protection Agency on Wednesday sent a letter to committee leadership opposing APRA. The agency urged the committee to pass a bill that sets a floor on privacy and “allows states to go further and continue to develop innovative protections that keeps pace with technology.”

Walberg has worked with Rep. Kathy Castor, D-Fla., to strengthen the bill’s child privacy provisions (see 2406140036), specifically language from their Children and Teens’ Online Privacy Protection Act (COPPA 2.0). Castor and Bilirakis introduced the Kids Online Safety Act (KOSA), which is scheduled for markup with APRA. Castor told us she believes the best path forward is to pass the kids’ privacy bills separately. The latest version of APRA saw a section on civil rights and algorithms stripped. Castor said the “politics” surrounding that decision could mean complications for COPPA 2.0 if it remains attached to APRA. Walberg said he believes COPPA 2.0 can pass both chambers if it’s considered as a stand-alone bill.

Public Knowledge is aligned with the Computer & Communications Industry Association, TechNet and NetChoice in opposing APRA. PK in a statement Wednesday cited the bill’s lack of civil rights protections and a failure to preserve the FCC’s role in regulating telecommunications privacy. Government Affairs Director Sara Collins called the removal of the civil rights section “unacceptable.” The bill “needlessly eliminates” the FCC’s jurisdiction over consumer privacy, cybersecurity and national security, expertise that complements the FTC’s role, she said.