What Lamar Smith Did - and Didn't - Learn from SOPA

Lamar Smith (R-TX), the mastermind behind last winter's widely-disliked Stop Online Piracy Act, is back at it. His latest bill may not be the SOPA redux that some observers fear, but his legislative tactics are every bit as problematic. 

Fifty days.

That's the median time it took for eight legislative bills - on economic espionage, identity theft, abortion in the District of Columbia - to circulate in the House of Representatives before they were put on the agenda for Tuesday's markup session by the House Judiciary Committee.

Zero days.

That's how long the ninth bill on the agenda, a measure submitted by Judiciary chair Lamar Smith, existed before it was submitted for Tuesday's markup. Unlike the other eight (H.R. 6029, H.R. 4362, H.R. 3803... ), Smith's Intellectual Property Attaché Act didn't even have a number. It had yet to be introduced into the House legislative system.

That's legislating the future of copyright, the Internet and creative content, Lamar Smith-style.

The Smith Way

Smith's IPAA maneuver is of a piece with how he has run his tech and copyright agenda since taking the gavel of powerful Judiciary Committee in January, when Republicans gained control of the House. After 13 terms in the House, the 64-year-old Texas Republican is a copyright near-absolutist of the 'theft is theft' variety, a school of thought where, by all appearances, "fair use" receives less consideration than even MPAA and RIAA demand. Why Smith is so committed to that path is an open question. The TV, movie, and music industries have long been among his top funders, but whether that's cause or effect isn't much worth debating.

It's the way that Smith goes about making legislation that makes one wonder if Smith learned anything meaningful at all from the recent fight over the Stop Online Piracy Act (SOPA) that he authored and championed, and its cousin in the Senate, the Protect IP Act, or PIPA. There was an enormous swell of public interest in Internet policy back then, as well as the copyright policy to which it is inextricably linked. Oregon Sen. Ron Wyden, a democrat, explained his take on the sales pitch made by the the bill's supporters back in January, when nobody knew what a SOPA or a PIPA was. "This is noncontroversial," Wyden said, channelling PIPA's backers inside and (mostly) outside Congress. "Nobody is in favor of piracy. This is practically a gimme."

The line from Smith's office this week on the rush to get IPAA through: Oh, this bill? This one's really no big deal.

Echoes of SOPA

In the end, SOPA got tripped up by process as much as anything. Smith, as chair of the Judiciary Committee, called a single hearing on a bill that would have had a sweeping effect on the functioning of the Internet. The panel was stacked with the bill's advocates. One witness, an attorney for Google, raised an objection. But as that bill steamed along to markup, members of Congress got the feeling that they been sold a bill of goods.

"This bill is not ready for prime time," concluded Wisconsin Republican James Sensenbrenner, himself a former Judiciary Committee chair. One of the most pivotal moments in the SOPA debate, in retrospect, might have been when Ohio's ultra-conservative Jim Jordan jumped off the legislative train, suggesting that the House "take a little extra time," not rubberstamp Smith's SOPA without knowing what it really would do. Certainly, the website blackouts, news reports, and email and tweet deluges drew Congress' attention to the major Internet bill barrelling through its halls. That was something new. "Here you have a picture," Wyden said in January, "of millions of Americans saying that this process has been flawed, [that] it only listened to one side." The Oregonian's takeaway? "In terms of communicating with government, America is never going to be the same."

Tell that to Lamar Smith.

In a way, it's not his fault. Judiciary chairs in both the House and Senate have enormous leeway to handle the business that falls under their jurisdiction. But add to that the fact that in the past few decades - as the online universe has expanded apace - nearly all things having to do with the Internet have been ceded to those same Judiciary Committees. What you end up with is very few people making policy on a medium of historic importance not only for us in the U.S. but for billions of people all over the planet. It's a dangerous combination, all the moreso when the process seems sloppy and rushed. The working copy of the IPAA posted on Smith's website carries a date stamp from the House's bill-drafting Legislative Counsel Office of July 5th, meaning that the bill existed in draft form for just three business days before it was scheduled for markup. Two of those days were during a holiday week.

The draft also lists the name of California Republican Darrell Issa, the leader of the House's SOPA resistance, as an original co-sponsor. That's not true, Issa's office said this week. He's not a co-sponsor of IPAA and never has been.

Again, Smith's office says that's no big deal. "We often list bills for markup to give us the option to debate them if we get them ready in time," a committee aide wrote in an email this week. With IPAA not yet properly introduced, Tuesday's markup came and went without its formal consideration.

Ministry of Openness & Transparency 

All of this is not to say that Lamar Smith took nothing away from the SOPA fight. His team seems to have picked up the language of its opponents. The Declaration of Internet Freedom rolled up by activists last week, largely in reaction to the SOPA/PIPA case, included near its very top a call for making the crafting of Internet policy a transparent and participatory experience. Smith's aide: "We plan to circulate a new draft based off those changes to ensure that the development of this bill continues to be an open and transparent process."

That's transparency-washing, Smith's critics say. "He might say that he invites a transparent process," observes Josh Levy of Free Press, which co-led the creation of the Declaration of Internet Freedom. "But he hasn't done much to show it." Levy continues, "I think Lamar Smith could use an education in what engaging the public means. It means something different from just reaching out to his fellow members of Congress."

The view from the House Judiciary Committee offices is that the Intellectual Property Attaché Act just doesn't warrant the attention. The IP attaché program has been around since 1996, stationing liaisons in U.S. embassies in countries where CDs are regularly copied, Nikes knocked off and electronics reverse-engineered. There are attachés in China (both Beijing and Guangzhou), Bangkok, Rio de Janeiro, New Delhi and Moscow, and there's a currently an 'unfilled but established post in Cairo. Their mission, in part, is to "encourage strong IPR [intellectual property rights] protection and enforcement by U.S. trading partners for the benefit of U.S. rights holders."

Smith's Legislative Trial Balloon

The IPAA is a narrow bill, Smith aides say, focused on streamlining the use of funds in the U.S. Patent and Trademark Office (USPTO) and increasing organizational efficiencies. A reshuffling, more or less. The bill would, it seems, bump up the program from its home in the somewhat beleaguered USPTO to a slot in the greater Department of Commerce bureaucracy. It would add an 11th full Assistant Secretary of Commerce, this one charged with overseeing "intellectual property" matters. And there's a bit of job re-titling. The post now known as Administrator for Policy and External Affairs at PTO would become Deputy Assistant Secretary of Commerce for Intellectual Property Policy and External Affairs. (RWW's Brian Proffitt runs down more of the details.) IPAA is no SOPA, but it's plenty robust to warrant some healthy consideration.

Actually, in its modest scope and wonkish subject matter, IPAA makes a rather nice vehicle with which Smith can test the post-SOPA waters. Move around pieces of an overseas program that few people have ever heard of, in a bureaucracy few people care about, and see who freaks. It's a juicy bit of lawmaking - certainly IPAA would be a nice win for the so-called content industry angered by the way SOPA and PIPA played out - but maybe just dry enough that it stands a chance of getting passed.

As it turns out, people did freak. After Politico reported the planned inclusion of the bill in Tuesday's markup, tech blogs picked up the story and ran with the idea that IPAA was SOPA back from the dead, that IPAA was the first move in a plan to move the bulk of SOPA through Congress piece by piece. The response annoyed Smith's staff. "This week, the House Judiciary Committee released a discussion draft of a bill that streamlines the IP attaché program to help safeguard American intellectual property abroad," Smith's aide wrote. "Unfortunately, some groups and blogs have misreported that this is a follow up to the Stop Online Piracy Act. That is not the case."

In other words, IPAA triggered an early-warning system that had been built and primed by SOPA/PIPA. The alarm bell's volume might irritate Smith. That's understandable. But he should also understand that his way of doing things is what set it off.

How to Dislodge Lamar Smith

So what to do about Lamar Smith? He's up for re-election in November, but there's little chance that he'll be relieved from his Judiciary Committee post through the ballot box. Smith's opponents in the May Republican primary in Texas's 21st district, a software engineer and a sheriff, banged him over the head with SOPA as hard as they could. More attention to the topic came from local billboards organized by the anti-SOPA group Fight for the Future and funded in part through online fundraising. "Don't Mess with the Internet," they read, with the footer, "Paid for by the Internet." Yet Smith crushed the challenge, garnering 77% of the vote. His Democratic challenger works as a volunteer for the Texas Democratic Party, and either way, the district is heavily Republican. (For political numbers geeks, the Cook PVI on Texas' 21st is +14 in favor of Smith's party.)

There's a better chance that internal House wrangling will bring an end to Smith's reign as Judiciary Committee chair. One possibility: The House Republican leadership, eager both to be seen as the party of the future and to have the favor of the tech world, will lean on Smith to stop being so reflexively retrograde when it comes to the Internet. There are signs that similar forces were at play in SOPA's demise. Another: Smith will be done in by House rules. At the moment, committee chairs have to step aside after three terms, as required by the GOP's bylaws. Smith has held the chair only since last year, but he was the ranking Republican on the committee for two terms before. Leadership can decide that both stints count towards the term limit. That's what forced out Sensenbrenner in 2006. (Next in line in seniority after Smith and Sennsenbrenner is North Carolina's Howard Coble, who seems to have been neither here nor there on SOPA.) The last possibility is the most revolutionary. House Republicans actually elect their committee chairs, and Smith could face a challenge from someone within his own party, a la the epic battle between auto-industry favorite John Dingell and environmentalist Henry Waxman for the chairship of the House Energy and Commerce Committee in 2008, when Democrats were eager to get legislating against climate change and in favor of progressive energy policies. Waxman won.

To save you the trouble of checking: Darrell Issa is indeed already on the House Judiciary Committee.