Tales of the Sausage Factory: Congress Giveth, Congress Taketh Away

Good news: The House Commerce Committee had a hearing on the Digital Media Consumers’ Rights Act, which would undo the more obnoxious provisions of the Digital Millenium Copyright Act.

Bad news: The House Judiciary Committee (which handles intellectual property issues) approved the Fraudulent Online Identity Sanctions Act, a bill to criminalize the use of false information in WHOIS registrations. This wouldn’t be so bad if you weren’t required to divulge a boatload of personal information under the “thick” WHOIS requirements in order to register a domain name. Folks who hate getting beaten up by their governments over free speech issues or just hate the way spammers use the WHOIS database often try to defnd themselves by submitting false information.

More on the merits of the bills below. But also of relevance (and what makes the Sausage Factory so much fun) is to note the difference a change in committee makes.

As all readers of the Sausage Factory know, what makes policy fun (even when you’re getting your butt kicked) is understanding how it works.

These hearings a few months ago (sorry I’ve been busy) back to back demonstrate the dynamics of industry capture and parlimentary procedure in Congress. While every vote is important, some Committees are a heck of a lot more important than others. And, as a result, they get very different views of the world.

Anyone can introduce a bill to either house. The bill is then sent to The Rules Committee to determine which Congressional Committee has jurisdiction. The Commitee will usually then send it to a subcommittee. Committee assignment is very important to a bill. The Committee or subcommittee chair can decide whether or not to hold hearings (and thus build a record for Congressional action), who gets invited to testify, whether to hold a “mark up” (where members of the subcommittee can amend the text), whether it gets voted out of the subcommittee and goes on to the full committee, where the process gets repeated. Then it gets rolled out onto the floor, possibly debated or amended, voted on, and either sent to the other House (if approved) or simply discharged if defeated.

As a practical matter, the big thing is the Committee. If a bill is favorably reported out of Committee, odds are good it will pass because most members simply don’t have time to educate themselves about the measure the way the Committee members do. Everyone hears about the big bills that get debated by the full Congress and all kinds of fun floor fights. The reality, of necessity, is much simpler.

Furthermore, the real power of a Committee chair is the ability to set the agenda. If the bill is not reported out of Committee, it is very difficult toget it voted on the floor. Yes, there are some Parlimentary tricks of the trade to grease this. And, as happened with media ownership where a lot fo members felt very strongly, you can play games by adding riders to Appropriations Bills (which technically violates Congressional rules but it always gets done).

Not surprisingly, given the long-term nature of Congressional representation and the impact of soft-money, members of committees get lots of contributions and information from industries that are covered in the relevant jurisdictions. In federal agencies, people speak of a phenomena called “capture,” when the regulator becomes so close to the industry that the regulator starts to think like a member of industry rather than an industry watchdog. It’s even worse on the Hill, where a lot of times you are trying to encourage economic growth through this or that stimulus.

Intellectual property is a big sticking point. Primary jursidiction for IP comes in the Judiciary Commitee, reflecting a time when Congress primarily thought of intellectual property as a private right primarily enforced by the federal courts. But intellectual property now has a big impact on commerce– particularly high-tech and telecom. As a consequence the Commerce Committee also has an interest in IP.

The Judiciary is thoroughly captured by the IP lobby. It is their home turf. The lobbyists served on the staffs of these Senators and Representatives. They same players have been in place for years. The IP lobby can pretty much get whatever it wants out of Judiciary, and it knows it.

Commerce is different. Members of the Commerce Committee spend more time hanging with equipment manufacturers and ILECS, who are sick of being bitches for the IP lobby. Commerce Committee members are usually more plugged into the public interest groups that have concerns on this issue. There is just not a history of close cooperation with public interest groups in Judiciary on IP issues, developing one in the face of resistance from the IP mafia is hard.

So we see the spectacle of two wildly divergent bills in flavor, if not in substance. Commerce is considering a bill to scale back the worst excesses of the Digital Millenium Copyright Act. That hearing had public interest groups and industry witnesses sympathetic to the bill. By contrast, Judiciary is considering a bill that would make it a federal crime to give the wrong information on a DNS registration. While this might not seem a bad idea, the bill does nothing to address the real privacy concerns of such forced disclosure. In the telecom world, we have very aggressive statutes to protect the private information of telephone subscribers or cable subscribers. Sure, law enforcement can get the info if it wants, but stalkers, spammers and dictators from other countries can’t. Why is DNS registration different? Because the IP mafia is conducting the choir, and their wholly owned subsidiaries in Judiciary are singing along with verve and feeling.

As always, I think citizen involvement is critical in getting these policymakers to understand what they’re doing hurts voters. But it’s important when you talk to your Representative to know what Committees he or she is on. It will tell you what you can expect of them.

Stay tuned . . .