After the Senate passed the Kids Online Safety Act and the Children and Teens’ Online Privacy Protection Act in a 91-3 vote at the end of July, momentum for children’s data privacy legislation has continued into September. In an hours-long markup covering various topics, the House Energy and Commerce Committee passed their versions of the two measures in voice votes. This vote was a victory for House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-Wash.), who has been pushing for these bills to advance for several months and had seen previous markups fail.
However, the House markup also served as a reminder that getting these bills to President Joe Biden’s desk to be signed into law will be no easy feat. The drafts of the legislation passed by the House committee included several changes that Republicans had pushed to make, which will need to be reconciled with the Senate versions and could imperil the future of these bills in the current congressional session.
Among the key revisions was to change language in the Kids Online Safety Act around the requirements for social media platforms to establish a “duty of care.” Republicans argued that the change was necessary to eliminate the chance that the legislation could be challenged by tech platforms on First Amendment grounds. Republican leadership on the committee, including McMorris Rodgers, projected confidence that they would convince the Senate to support the revised version. However, Rep. Frank Pallone (D-N.J.), the top Democrat on the committee, while he ultimately supported the measure, argued that the change weakened the bill and the legislation is now “not strong enough.”
While the committee markup was a necessary step forward if these bills are going to pass this year, aside from working out the differences between the Senate and House drafts, House Republican leadership has been noncommittal about bringing the measures up for a vote on the chamber floor. House Speaker Mike Johnson (R-La.) has not commented much on the issue. While the changes made in the committee are moving in a direction that House Republican leaders can get behind, there is still a sense that the bills are not ready to go to the floor a yet.
A reason for this caution may be internal Republican divisions on the bills, some of which were on display in the House committee’s markup. The House Freedom Caucus has also raised concerns about the legislation’s possible infringement on First Amendment rights. This Republican pushback could suggest that the bills would not be guaranteed to pass, even in a party-line vote, if put forward before the full House.
Despite these obstacles, coming into September, the best chance for these bills to be passed into law was in the lame duck session after the election, which has still not changed. The path forward is murky at best, and the measures’ odds of being signed into law have not increased after the House markup. Given the competition for floor time, the legislation will likely have to be attached to either an appropriations bill or other legislative vehicle that is advancing at the end of the year. This will mean that inter-chamber negotiations will need to occur in the background so that if a version is attached to a measure set to pass, it already has enough support to pass the House and Senate.
Even if the bills are not passed in the relatively short time left that Congress has this year, the two chambers are closer than they have been in previous years, which could mean that future efforts are starting closer to the finish line than at the beginning of the current session. Advancing out of the House committee is a sign of continued interest in the issue and a reflection of lawmaker’s desire to pass a bill on the topic. The two parties appear closer to a breakthrough than in past years, but the issues holding up a deal are among the most contentious, meaning compromise is still no easy feat.