Karl Herchenroeder reports in Communications Daily that Oregon’s legacy senator Ron Wyden has placed a “hold” on the CASE Act (the legislation creating a copyright small claims court), which essentially stops it from moving forward. (The CASE Act is the result of extensive study by the Copyright Office that addressed the many issues involving creating the copyright small claims process.)
We had heard this hold was in place long ago, and Rep. Zoe Lofgren (D-Google) had foreshadowed it during the House Judiciary Committee mark up of the CASE Act on September 16.
In response to Rep. Lofgren’s threat, Rep. Doug Collins said that it was a “sad state of affairs” when one Senator could block the will of hundreds of Members of the House of Representatives. Rep. Collins knows of what he speaks–Wyden placed a hold on the Music Modernization Act until he got concessions on pre-72 recordings being foisted on old guys and dead cats by the Public Knowledge Google shillery.
In the case of MMA, the House passed their version of the bill unanimously. But Wyden had little regard for his colleagues and had his hold ready to go to keep his buddies from his home town of Palo Alto all happy.
So what is a “hold”? If you don’t know that term, don’t be surprised. It’s a largely secret process that allows any one Senator to stop a bill from being passed unanimously (which is the way most bills pass in the Senate). Strategic utilization of holds is sometimes called a “senate strategy” by someone (like Google, for example) who can’t stop legislation in the light of day so they kill it in the shadows of the Senate ally.
According to the Congressional Research Service (in extraordinarily kind language, no shock):
The Senate “hold” is an informal practice whereby Senators communicate to Senate leaders, often in the form of a letter, their policy views and scheduling preferences regarding measures and matters available for floor consideration. Unique to the upper chamber, holds can be understood as information-sharing devices predicated on the unanimous consent nature of Senate decision-making. Senators place holds to accomplish a variety of purposes—to receive notification of upcoming legislative proceedings, for instance, or to express objections to a particular proposal or executive nomination—but ultimately the decision to honor a hold request, and for how long, rests with the majority leader. Scheduling Senate business is the fundamental prerogative of the majority leader, and this responsibility is typically carried out in consultation with the minority leader.
The influence that holds exert in chamber deliberations is based primarily upon the significant parliamentary prerogatives individual Senators are afforded in the rules, procedures, and precedents of the chamber. More often than not, Senate leaders honor a hold request because not doing so could trigger a range of parliamentary responses from the holding Senator(s), such as a filibuster, that could expend significant amounts of scarce floor time. As such, efforts to regulate holds are inextricably linked with the chamber’s use of unanimous consent agreements to structure the process of calling up measures and matters for floor debate and amendment.
The problem for artists with this senate strategy is three-fold: First, Wyden always puts a hold on any legislation that could help artists. It is easy to predict because he always does it. It’s a bit odd in this case because the CASE Act is designed to help artists across all copyright categories as well as users who wish to have potential defenses clarified (such as fair use). After all, it was Senator Wyden who told us (while putting a hold on SOPA) that he opposed legislation that was a “step towards an Internet in which those with money and lawyers and access to power have a greater voice than those who don’t.” I think that’s exactly what the CASE Act is designed to remedy, yet Wyden still places his secret hold for the benefit of the richest corporations in commercial history.
Another problem for artists is that getting a Senate hold released usually involves someone negotiating with Wyden. This negotiation often takes a “meet him half way” style, without taking into account what is being given up. Sort of like, he’s raised five points and is willing to give up three of them, can’t you give him the other two and meet him halfway? But one of the other two involves slitting your own throat, so you say no. Then you are deemed “unreasonable”. That doesn’t work.
I think the biggest problem is that Wyden is once again going to demonstrate an extraordinary lack of regard for his “colleagues” in the House who voted for and passed the House version of the CASE Act with 410 for and 6 against. But let’s get it straight–he doesn’t care. If anything he is only encouraged by a lopsided House vote as giving him even greater leverage. That’s a nice bill you got there, it would be a shame if something happened to it in the Senate.
Let’s all understand that neither Wyden nor his benefactor Google are going to change their spots. No reason to be surprised this time or next time and so a realistic advocacy strategy should have a “Wyden strategy” built in from the beginning. We know that Public Knowledge and Electronic Frontier Foundation will take point for Google against us, so let’s not be surprised when it happens next time.
So Wyden needs to be told to put his objections in writing and come out from the shadows. Evidently he is going to put forward an actual amendment so the public will finally get to see what all the fuss is about.
And he can explain to his colleagues in the House why his point of view is superior to theirs. Because what goes around comes around.