Issa's Close Re-Election Bid Tops IP Lobbyists' Election Watch List

Issa’s 51-46 percent finish against Applegate in the June all-party primary election alerted IP stakeholders to the possibility of turnover in the race, several lobbyists told us. Issa has never won with less than 58 percent of the vote since his initial 2000 election to the House. Issa’s re-election bid is rated as a toss-up by both The Cook Political Report and RealClearPolitics. An early October Public Opinion Strategies poll found Issa leading Applegate by 9 percentage points, though it’s unclear if the race has shifted since then, a content-side copyright lobbyist noted. Republican presidential nominee Donald Trump endorsed Issa for re-election earlier this month (see 1611010056)

Lobbyists identified three possible successors to Issa as House IP chairman, assuming the Republicans retain control of the House, as expected -- House IP Vice Chairman Doug Collins, R-Ga., former subcommittee Vice Chairman Tom Marino, R-Pa., and Rep. Ted Poe, R-Texas. Several lobbyists said it was unclear which of the three likeliest successors had the best chance of succeeding Issa, while two others tipped Marino as having a very slight advantage.

“I wouldn’t be surprised if Marino” ended up leading House IP in the event of an Issa loss, though it’s unclear whether he would prove any less controversial than Issa was upon his selection after the 2014 election, a content-side copyright lobbyist said. Issa’s strong ties to the tech sector may have played a role in House Judiciary Committee Chairman Bob Goodlatte’s, R-Va., decision to wrest control of copyright policymaking away from House IP and make it a bailiwick of the full committee (see 1412040068 and 1412050057), the lobbyist said. Marino also might prove controversial because of his perceived ties to the entertainment industry, a tech sector lobbyist said. Marino lost out on the House IP gavel despite having the backing of former subcommittee chairman Howard Coble, R-N.C. (see 1411050048), but has continued to take an active interest on copyright issues. Marino was a lead sponsor of the Copyright Office for the Digital Economy Act (HR-4241) and the Copyright Alternative in Small-Claims Enforcement Act (HR-5757).

Collins could have an advantage because of his current role as House IP vice chairman and because he’s seen as a long-term prospect for House GOP leadership, a music industry lobbyist told us. Collins has been a strong pro-songwriter voice on House IP, taking the lead in criticizing the DOJ Antitrust Division’s controversial decision in its review of the American Society of Composers, Authors and Publishers and Broadcast Music Inc. consent decrees (see 1608090054 and 1608260056). Collins sponsored the House version of the Songwriter Equity Act (HR-1283/S-662). Poe is the most senior of the three-possible House IP successors and previously was a judge. However, Poe has been dealing with health issues this year, a tech sector lobbyist said.

It’s possible but unlikely that a shift in House IP leadership could prompt Goodlatte to return at least partial control of copyright legislation back to the subcommittee, lobbyists said. A Marino chairmanship is the only scenario in which Goodlatte might choose to shift that policymaking authority back to House IP, though Marino’s perceived ties to the entertainment industry diminish the chances of that happening, a content-side lobbyist said. There’s “no reason why” control of copyright issues couldn’t be shifted back to House IP, though “now that it’s consolidated I’m not sure [House Judiciary leaders] would ever want to cede it back," the lobbyist said. It’s unclear whether a shift in control of copyright issues would really be that significant in part because the staffers who would advise on IP issues would remain the same whether House Judiciary or House IP controlled those issues, said Library Copyright Alliance counsel Jonathan Band. The shift of copyright issues to House Judiciary in the current Congress has been significant because in the past “you had strong chairmen at the subcommittee level” who had significant sway over IP-related policymaking, Band said.

Band and other stakeholders said they are closely following whether control of the Senate will result in Grassley maintaining control of Senate Judiciary or if Leahy will become chairman. A shift in Senate Judiciary leadership “could have a substantial impact on the IP agenda going forward,” although “there is a considerable amount of collaboration across the aisle on those issues,” a tech sector lobbyist told us. Although Leahy is likely to remain Senate Judiciary’s top Democrat, it’s conceivable that committee leadership could shift depending on the election results, the lobbyist said.

A shift from Grassley to Leahy wouldn’t necessarily change how Senate Judiciary deals with copyright issues, as “everything has to be done collegially in the Senate,” Band said. Grassley and Leahy staffers have “played nice with each other” in previous Congresses and “I don’t think that would necessarily change” with a shift in power, Band said. Leahy would “probably be a big force” on copyright legislation if he became Senate Judiciary chairman again given House Judiciary’s work on its Copyright Act review, said music industry attorney Chris Castle. A shift in Senate Judiciary leadership would likewise not change how the committee deals with patent revamp legislation, as Leahy “was always a pretty strong supporter for patent reform” when he chaired the committee between 2007 and 2015, said Public Knowledge Patent Reform Project Director Charles Duan.