Elections Matter, Don’t They?

We’re less than two weeks from Election Day 2014 and deciding which party will control Congress for the next two years. Nate Silver gives Republicans a 66% chance of winning a majority of seats in the Senate which would give the party control of both Houses. What would that mean for telecommunications and technology policy?

Michelle Quinn of the San Jose Mercury News wrote on October 17 that the tech industry's interest in Washington may be about to perk up. The status quo in Washington has meant that movement on many key issues has stalled. "If the Senate flips, it creates new energy and tumult in the process," said Michael Beckerman, chief executive of The Internet Association, which counts Google, Facebook and Yahoo as members. "That could be good and bad." After the election, the GOP isn't expected to have 60 Senate seats, the number needed to overcome filibusters that have become common tactics to stop controversial bills. But holding both chambers of Congress could grease the passage of some measures that tech cares about.

According to House Speaker John Boehner (R-OH), the overarching agenda of House Republicans can be distilled to five points: address the debt, overhaul the tax code, fix the legal system, rein in excessive regulations and strengthen education.

In 2013, House Commerce Committee Republicans launched a process to review the nation’s communications laws from top to bottom. The Committee has issued a series of white papers seeking input on and looking at everything from spectrum policy and the Universal Service Fund to broad questions of competition policy and network interconnection. Although the aim of the effort is to update the Communications Act of 1934, experts believe we're many years -- and election cycles -- away from rewriting U.S. telecommunications law.

On October 21, Sen Orrin Hatch (R-UT) visited the headquarters of Overstock.com to outline his priorities for technology legislation in the next Congress. Sen Hatch is the chairman of the GOP's High-Tech Task Force and he argued that the United States must create a legal framework to stay ahead of other global competitors.

“Government’s proper role is to act as a facilitator, creating an environment that encourages research and development to drive our prosperity and quality of life in the decades to come,” he said while warning against “heavy-handed” regulation.

According to Sen Hatch, the tech agenda includes:

• Legislation to help thwart companies that bring frivolous patent infringement lawsuits against developers.
• On immigration, reform of the rules governing high-tech visas, known as H-1b visas.
• Reducing the tax burden on corporations.
• Businesses and government voluntarily sharing information on cybersecurity.

There’s some thought that television policy could also be on the GOP agenda. Sen John Thune (R-SD) would likely become the chairman of the Senate Commerce Committee if the GOP wins a majority in the Senate. Earlier this year, Sen Thune co-sponsored -- with current Commerce Committee Chairman Jay Rockefeller (D-WV) -- a bill, the Local Choice Act, that would have unbundled broadcast programming in pay-TV packages so that consumers could pay only for channels they watch. The National Association of Broadcasters opposed the proposal which was ultimately removed from the Senate version of satellite TV legislation. Since Sen Thune helped draft the bill, it could resurface as part of a communications legislative effort in 2015, said Paul Gallant, an analyst at Guggenheim Partners. "We could well see Congress try to update the 1992 Cable Act -- including the [retransmission] provisions.”

Sen Hatch pointed to the need for multiple updates to the Electronic Communications Privacy Act (ECPA), the law that governs the protection of online communications. The ECPA currently allows law enforcement to access e-mails older than 180 days or those that have already been opened with a subpoena, rather than requiring a warrant; and the law is silent on the privacy standard for accessing data stored abroad. Reform of the 1986 act will likely be in the spotlight, many say. Reform measures would strengthen protections for individuals' digital communications. Its passage hit a stumbling block recently with the Securities and Exchange Commission, which argued that it needs access to e-mails to investigate financial crimes, including insider trading. But Republicans may be less receptive to the argument that a federal agency -- particularly one charged with restraining Wall Street -- should have special investigative powers. That said, according to those who work on the issue, Congress always seems to find some reason not to modernize that nearly 30-year-old law.

Would a GOP-led Congress push for reform of government surveillance programs in 2015? In recent weeks, the USA Freedom Act, aimed at ending the bulk collection of metadata on Americans, has picked up widespread support, writes Nancy Scola in the Washington Post. Since the revelations by ex-National Security Agency contractor Edward Snowden, "there has been bipartisan concern about privacy and the power of government," says Greg Nojeim, Senior Counsel at the Center for Democracy and Technology. That said, its advocates in Congress might be interested in making sure the bill passes during the post-election lame duck session to avoid rehashing the bill yet again in a newly-configured chamber.

There's another intriguing possibility: that a Republican Congress turns its gaze instead to Executive Order 1233. That tool empowers intelligence agencies to conduct surveillance at the direction of the President; though the order was first signed by President Ronald Reagan, Republicans might be eager to remove the power from Obama's hands.

Sen Hatch also offered insight on an issue that’s already being widely discussed -- network neutrality.

"Net neutrality is a terrible idea,” said Sen Hatch. “The last thing we need is government telling [Internet service providers] how to carve up bandwidth. Keep the Internet free and it will continue to drive our economy forward.”

Overwhelming public support for network neutrality rules and recent statements by President Barack Obama and presumed presidential candidate Hillary Clinton have some thinking that the principle is gathering political weight. But Andrew Lipman, a partner at law firm Bingham McCutchen, said, "A Republican-controlled Congress would pass measures that would seek to restrict the [Federal Communications Commission] on network neutrality and would accelerate efforts to rewrite the 1996 Telecom Act, both of which would be looked at skeptically by a Democratic administration."

Lipman says that President Barack Obama would likely veto any bill that guts FCC authority to uphold net neutrality. He says that Republicans will be well short of the 60-plus majority needed to block Democratic filibusters. "The Obama administration has been clear in supporting net neutrality, so Congress isn't going to pass any law that's going to be veto-proof," Lipman added. "There's not going to be 67 votes in the Senate to override a veto. Any measure that Congress passes is going to be more of a statement saying that Congress doesn't want the FCC dealing with network neutrality, not something that's enacted."

But Congress could also use the Congressional Review Act which gives it the power to erase specific agency rules. (1) After the FCC passed its first round of open Internet rules in 2010, the Republican-led House passed a Resolution of Disapproval, arguing that the agency should not weigh in on the issue at all. That bill petered out in the Democratic Senate. But odds are that a Republican Senate would move to invalidate any aggressive net neutrality rules the agency passes. However, the motion to disapprove would still have to be signed by the President to invalidate the rules; a veto in this case is highly likely.

While CNN’s Gloria Borger has dubbed 2014 the Seinfeld election (a show about nothing) and Zeke Miller writes in Time that “hundreds of millions are going to be spent fighting over an outcome that won’t impact the policy Americans see out of Washington one bit,” we’ll continue to track this year’s races' impact on telecommunications policy – and we’ll see you in the Headlines.

Notes:
(1) Under the CRA, Congress can pass a joint resolution of disapproval relating to a rule. Since 1996, 43 resolutions have been introduced in the Senate or House of Representatives and two of those resolutions have passed one house of Congress. Only one rule, the Department of Labor rule on ergonomics, has been disapproved by Congress.