Shutdown Delayed But Didn’t Disrupt Tech Agenda, Say Advocates, Lobbyists

"The one thing we've seen is just a slowdown in any existing efforts,” said Jessica Herrera-Flanigan, an attorney with Monument Policy Group, which represents several tech firms. With furloughed staff and limited resources until the shutdown ended last Thursday, bills that would have been introduced by now have been delayed, she said. “Those things are still coming, but the timing is a little bit delayed. It’s slowed down tremendously.” Cathy Sloan, Computer and Communications Industry Association vice president-government relations, said “nothing has substantively changed. It’s just all delayed and shifted” by a few weeks.

Even if the shutdown didn’t specifically diminish the chances of any particular piece of legislation, the delay could still be a death knell for previously promising bills, said Herrera-Flanigan and others. Conventional wisdom says the closer Washington gets to an election, the less likely Congress is to pass any major legislation, Herrera-Flanigan said. And after the shutdown, there is roughly one month less time until the election -- a difference that could really matter, she said. “We were seeing a patent bill potentially, with a chance to get through with bipartisan support,” she said. “But it’s an issue that’s slowed down, and slowed down in an election year is hard.” Darrell West, director of Brookings Institution’s Center for Technology Innovation, said “there’s been tremendous polarization around the shutdown, and it’s going to be difficult to move things, especially in the House.”

The short-term deal gives advocates and lobbyists just a few weeks to work with Congress before the budget battles all begin anew, West added. “Our fixation on the budget is going to drive out attention to every other issue.” Michael Beckerman, Internet Association president, agreed: “It looks like they're going to keep doing short-term deals, and I don’t know if everyone is going to be kissing and making up after this. You have a lot of the Republicans in the House, Democrats in the Senate, and the president all lined up to do something, but if the debt ceiling and [continuing resolution] are always hanging over our heads, it’s not going to be easy to get something done."

Sloan and others were more optimistic about the fall. She said at least in several areas, “there was pent-up momentum and intentionality to get things done [before the shutdown], and people might even be a little quicker out of the gate” as things resume. When staffers work hard on an issue they believe in, and then suddenly reach a wall, “once the wall comes down, you're going to be more energized.” That attitude might not apply to every issue, but it could give lobbyists and advocates a short window to really make things happen on the Hill, she said. Robert Hoffman, senior vice president-government relations at the Information Technology Industry Council, pointed to the last congressional shutdown, after which the 104th Congress was able to pass welfare reform in 1996, and the 101st Congress, which in 1990 passed a major immigration bill as it was addressing the invasion of Kuwait and warding off another shutdown. “So our hope is that, hey, we can make progress and we can get things done,” he said.

"They're not reinventing the wheel, they're just changing the dates [for hearings] and getting their witnesses in order,” said an Internet policy lobbyist. The rank-and-file members certainly felt the tension during the shutdown, but the fight was not really a rank-and-file fight, she said. Most members sat in their offices waiting to be told what to do, and they're ready to get back to regular order in a hurry, she said. Tom Lenard, Technology Policy Institute president, said things would likely go “back to normal” pretty quickly. Moreover, he said, there just aren’t that many technology policy issues that people expected legislation on, even before the shutdown. Leslie Harris, Center for Democracy and Technology president, said “they have time to make progress.” It would have been nice to be “a month into” the fall agenda, she said, “but there’s lots of time left. At this point it’s a question of will, not a question of time."

Those we surveyed pointed to several tech policy areas where they still expect movement, though most cautioned that movement doesn’t necessarily mean legislation. Most said they anticipated action this fall on patent reform, since the area has bipartisan support. “If there’s a cease fire for a month or so, and everyone’s disgusted with Washington, there’s a great opportunity there,” said Beckerman. “If they can pass a bipartisan bill during the ceasefire, then great, that shows that Washington isn’t totally broken and can work together on some things,” he said in reference to patent reform. Berin Szoka, TechFreedom president, said that “if anything, maybe there’s more incentive to get something done, particularly because this is not going well for the Republicans, in terms of optics.” The House is likely to move on patent reform, but the Senate Judiciary Committee has other priorities to address first, including surveillance, said an Internet policy lobbyist.

Others said immigration reform could see movement. But several said a big topic like that could get harder as the 2014 election draws closer. West said House Speaker John Boehner, R-Ohio, might be reluctant to move legislation requiring a lot of Democratic support, following a shutdown deal that leaned on support from the minority party. But Hoffman, Beckerman and Herrera-Flanigan had hope for movement on the subject. “They could put some points on the board by moving a couple of those bills, and teeing things up,” Hoffman said. The end of the year would be a kind of “legislative halftime,” he said. “It would be great to see a bill introduced that we can respond to, to see some constructive movement in that arena.” If things get under way this fall, moving the bills might not be as difficult as people think, even in an election year, said Hoffman. “Election year legislating is always a challenge, but there is precedent for some major pieces of legislation passing.”

Sloan and Szoka were also optimistic about revision of the Electronic Communications Privacy Act, which allows law enforcement agencies to subpoena emails older than 180 days. Unlike the National Security Agency “situation, where a lot of people are calling for broader, deeper debate, ECPA doesn’t need that,” said Sloan. “It’s ripe, it’s ready. It’s just sitting there.” Szoka said ECPA revision could be an easy way for members to take a noncontroversial bite out of the surveillance apple. “All the heavy lifting’s been done. It has now stalled just short of the finish line in the Senate, and it’s going up in the House,” he said. Harris also was optimistic about ECPA passage, but said House Judiciary Committee Chairman Bob Goodlatte, R-Va., might not release legislation on the subject until early next year.

Those interviewed were split over the prospects for surveillance legislation. All said they expected more legislation to be introduced by members of the Intelligence and Judiciary committees. Sloan, Herrera-Flanigan, Harris and others said the differences between privacy and security could be too difficult to reconcile very quickly. People want a broader debate on all of those topics, Sloan said, and finding consensus could take time. Intelligence committee members want to codify certain data collection measures, while Judiciary committee members want to ban them, Harris said. The time is ripe for the legislation, but it could be too difficult, she said. But West and Szoka grouped it with patent reform as an area that might have enough bipartisan consensus to pass, if Congress could find the political will to work together. “We know there’s a lot of public concern about this, and there continue to be a lot of new disclosures in that area,” West said. “It’s definitely high on the public agenda."

Harris and Herrera-Flanigan said they didn’t expect any consequential action on cybersecurity legislation, despite remarks over the past several weeks from high-profile representatives such as House Intelligence Chairman Mike Rogers, R-Mich., and ranking member Dutch Ruppersberger, D-Md., that a bill would pass. Harris said she expects a bill from Senate Intelligence leaders Dianne Feinstein, D-Calif., and Saxby Chambliss, R-Ga. But “I would be really surprised if it moves,” she said. Both Harris and Herrera-Flanigan credited the ongoing surveillance revelations for diminishing movement on that topic, as others have said (CD Sept 16 p11).

With Congress at a standstill, agencies such as the FTC could step up their regulatory efforts, Herrera-Flanigan said. The FTC, for example, could ramp up its efforts to curb patent assertion entities or its work on privacy with respect to Do Not Track, she said. “Maybe [the shutdown] is creating an empowered FTC that can step in and do a lot for the tech community.” West said that “there’s been a general tendency during President Barack Obama’s second term to empower the agencies and have them do things when Congress is not capable of action. So I certainly believe the administration will push the agenda as far as it can through executive means.” But the FTC is limited in what it can do, Sloan said. “The FTC is not going to all of a sudden take on policy areas that they hadn’t already begun to take on just because Congress isn’t acting.” Lenard agreed: “The agenda they have is pretty full, and I don’t think it’s really going to change.”

No matter the agenda for the next few months, Congress and agencies might lag a little after a 16-day delay, Szoka said. “For better or worse, I suspect that they're probably going to be playing catch up -- just imagine what they're inboxes are going to look like when they get back to work. They're probably going to be digging themselves out for several weeks, which could make it difficult for them to do much.”