Conyers Resignation Signals Open Contest for House Judiciary Ranking Member Seat

Conyers framed his resignation as an immediate early retirement. He maintained during an appearance on WPZR(FM) Detroit that the claims are “not accurate, they're not true and they're something I can't explain where they came from.” Rep. Sheila Jackson Lee, D-Texas, later read a letter on the House floor from Conyers confirming his resignation. Nadler is “saddened” by the resignation, noting “there can be no tolerance for behavior that subjects women to the kind of conduct that has been alleged.” Sen. Al Franken, D-Minn., faces a separate Senate Ethics Committee investigation into claims of sexual misconduct, and House Commerce Committee Vice Chairman Joe Barton, R-Texas, said last week he will retire at the end of this Congress amid the fallout from sexting revelations (see 1711220047 and 1711300045).

House Democratic leaders aim to hold a full caucus vote the week of Dec. 18 to select a permanent House Judiciary ranking member, a House Democratic aide told us. A vote likely would need to occur before year-end since the House won't reconvene until Jan. 3, near the 30-day deadline to select Conyers' committee replacement, Nadler told reporters Tuesday. The House is to begin a two-week recess at the end of next week but Republican leaders are aiming to extend the calendar until Dec. 22. Nadler said his campaign, which concentrates on lobbying individual House Democrats, is “going very well.” That campaign can ramp up, since until Tuesday it was predicated on “if” Conyers departed the House, Nadler said.

Lofgren is likely to be the only other candidate despite speculation Jackson Lee could seek the seat, Nadler told reporters. Lofgren sought a full Democratic caucus vote to select Conyers' acting replacement but House Minority Leader Nancy Pelosi, D-Calif., insisted initial selection be based on seniority, informed sources said. Lofgren could face an uphill climb to gain enough support since Nadler's an incumbent in the role, a tech industry lobbyist said. Lofgren remains committed to running, a spokesman said. Jackson Lee's office didn't comment.

Lofgren and Nadler have dedicated tech policy constituencies based on specific legislative issues, particularly on copyright and privacy. Some lobbyists and officials believe the two don't have substantially different views on a range of other policy questions. Others observed both candidates' relative lack of experience in dealing with antitrust. Some House Judiciary members said they're interested in expanding the committee's antitrust focus to include scrutiny of tech and telecom (see 1711030051 and 1711150024). Computer and Communications Industry Association President Ed Black emphasized the importance of non-policy-related qualities as determining factors in the contest.

The two lawmakers “have different styles and approaches” and stakeholders “will want somebody who shows dynamic leadership and can get along with everybody, even those they disagree with,” Black said. “In the Democratic space, there is a real desire not to fall into a trap of getting into ideological subgroups." Black didn't endorse, but said CCIA's interactions with Lofgren showed that “while she's not always necessarily on our side, she's always been thoughtful and has been intellectually engaging.”

Copyright

The copyright policy community divided sharply on Lofgren and Nadler, who played pivotal roles in House Judiciary's years-long copyright law review. This Congress, Nadler was a main sponsor of the Fair Play Fair Pay Act (HR-1836) and co-sponsored the House-passed Register of Copyrights Selection and Accountability Act (HR-1695), which would make the register a presidentially appointed, Senate-confirmed position with a 10-year term (see 1703300064, 1703230068 and 1704260062). Lofgren led opposition to HR-1695, calling the bill a “vote of no confidence” in Librarian of Congress Carla Hayden's leadership and invoking controversies over the tenure of ousted Register Maria Pallante (see 1703290066, 1704200047 and 1704260062).

The content community likely will again support Nadler, now against Lofgren, lobbyists said. Nadler has a long track record of “strong support and understanding” of issues facing the creative community, Copyright Alliance CEO Keith Kupferschmid told us. Lofgren could find it difficult to gain traction without buy-in from the content community, an industry lobbyist said. Lofgren is effectively a “nonstarter” for the content industry in part because of her active role in opposing HR-1695 and perceptions she would take pro-tech sector positions on IP, a content sector lobbyist said.

Tech lobbyists said they generally prefer Lofgren's positions on copyright, though they don't see Nadler as being a significant departure. Both lawmakers “are extremely capable leaders” and “I don’t think their [copyright policy] positions would differ significantly,” said Digital Media Association General Counsel Greg Barnes: They "would pursue a balanced set of policies that would benefit content creators as well users.”

Lofgren has been “much more sympathetic to the tech industry and to the public interest groups” on copyright policy matters, while Nadler has generally been “more sympathetic to the content industry,” which generally reflects the economics of their respective constituencies in tech-centric San Jose and publisher-centric New York City, one tech lobbyist said. “But what's interesting is times are changing. Manhattan is becoming a tech center” and the tech sector already saw Nadler as being less adamantly pro-content community than Conyers.

Privacy

Lofgren and Nadler are viewed as pro-privacy and favor legislation to limit surveillance powers. Lofgren was a lead House sponsor of the Uniting and Strengthening America by Reforming and Improving the Government’s High-Tech Surveillance (USA Rights) Act (HR-4124/S-1997) to update Foreign Intelligence Surveillance Act Section 702 authority (see 1710240029). She was a founder of the privacy rights Fourth Amendment Caucus and a member of the 2016 House Judiciary and Commerce encryption working group (see 1603210061, 1607130031 and 1612200073). Nadler was a co-sponsor of the House-passed Email Privacy Act (HR-387) to update the Electronic Communications Privacy Act and the Uniting and Strengthening American Liberty Act (HR-3989) to update Section 702 (see 1701090017 and 1710040066).

Top privacy lobbyists have no firm preference but saw Lofgren as more active than Nadler as a leader on legislation. “They're both right on the issues,” but Lofgren is perceived more “civil libertarian at heart,” said R Street Institute Federal Affairs Manager Sasha Moss: “Her staff is one of the best in Congress” to handle privacy. FreedomWorks Vice President-Legislative Affairs Jason Pye has “no preference” but tipped Lofgren as “having a leg up” in handling surveillance.

“They both have a very good history” on privacy but Lofgren “has been more engaged and more focused” on this in the House, said Constitution Project Senior Counsel Jake Laperruque: Nadler “has a very good record on these issues, too,” but the two have split over whether HR-3989 or HR-4124 is the preferable vehicle for revamping Section 702. Nadler supported HR-3989 despite concerns by Lofgren and others it codified an existing back-door search loophole, Laperruque said. Nadler helped table a Lofgren-co-sponsored amendment to the bill that would have mandated warrants to access Americans’ communications as a way of closing that loophole, Laperruque said.

Antitrust Limitations

Lofgren and Nadler have scant records on antitrust, said antitrust expert Seth Bloom and other industry lobbyists. Neither sits on House Judiciary's Antitrust Subcommittee. “I don't think either of them has a very long record” on antitrust, said Bloom, who now lobbies for Comcast and Yelp. Conyers “was certainly a friend of antitrust enforcement” but the candidates' lack of antitrust experience makes it difficult to say whether they would diverge from him, Bloom said.

It will be interesting to see if Lofgren shifts away from her traditional stance of supporting Silicon Valley companies when Democrats are raising concerns about dominance in the platform economy, said International Center for Law & Economics Executive Director Geoffrey Manne. He, Bloom and others cited Lofgren's statements during a briefing last week organized by House Judiciary Democrats and the Congressional Progressive Caucus that she wants a “fresh start” on antitrust policy, involving a multiyear process to examine existing statute (see 1712010027).

That provides an “early clue” that she wouldn't represent a strong divergence from Conyers' position on antitrust, one industry lobbyist said. Manne said he would expect Nadler, if he continues as ranking member, to support the "emerging Democratic hard line on antitrust issues." Lofgren has protected platform companies from "populist antitrust attacks," he said.