Will New Congress Move On H-1B & Tech Issues?

High-stakes bills that directly affect the tech sector in three areas -- H-1B, digital copyright, and anti-patent-troll legislation -- are stalled in Congress. But what if the Senate changes hands?

David Ransom, Partner, McDermott Will & Emery

November 4, 2014

5 Min Read

The easiest -- and safest -- prognostication that any pundit (or lobbyist) can make about the possibility of a particular piece of legislation clearing the United States Congress is something like this: "No, there's very little chance that the Congress will act on that. Congress can't seem to get anything done these days."

The reality, of course, is that this is an easy and safe prediction because, statistically speaking, the odds are high that nothing actually will happen on a particular piece of legislation, unless it is in response to a national calamity or crisis that requires members of the two major political parties to cast aside partisanship and come together in consensus.

This same dark forecast can be applied to three matters that are priorities to the technology industry: expansion of the H-1B visa program, enactment of new digital copyright rules, and passage of anti-patent-troll legislation.

[Want to learn how lessons learned on the campaign trail translate to business? See Obama 2012 CTO: From Campaign To Enterprise.]

Let's assume that Republicans regain the Senate majority in Tuesday's midterm elections (a prediction that many political pros are making, even though which party ultimately controls the Senate majority may not be known until December or even January if there are run-offs in the Louisiana and Georgia Senate races), and slightly expand their House majority.

Let's assume further that Sen. Mitch McConnell (R-Ky.) wins a tough re-election and becomes Senate majority leader, and Sen. Chuck Grassley (R-Iowa) becomes chairman of the Senate Judiciary Committee, which would have jurisdiction over each of these issues. What are the odds of movement?

1. H-1B Visas
Would a Republican Senate majority fundamentally alter the political landscape in 2015 in regard to consideration of comprehensive immigration reform, of which expanding the H-1B visa program could be an important component? The conventional wisdom, and I think the correct conclusion, is no. Comprehensive immigration reform will continue to be exceedingly elusive and unlikely if there are Republican majorities in both the Senate and House.

There are a variety of reasons for this, but two principal ones. First, Republican members of Congress themselves continue to be very much divided on immigration reform overall. Recall that most House Republicans derided the Senate immigration reform legislation as providing "amnesty for illegal immigrants," even though that legislation would not have passed without Senate Republican votes. Just two weeks ago, Sen. Ted Cruz (R-Texas) wrote in USA Today that Republicans should adopt a hard line. And, every Republican member of Congress knows that he or she could face a primary challenge from the right -- many believe that former House majority leader Eric Cantor (R-Va.) lost his Republican primary at least in part to perceived moderation on immigration reform.

Additionally, the political calendar weighs against immigration reform. A little over one year from now, the major parties' presidential aspirants will have begun campaigning in earnest in Iowa and New Hampshire. That leaves a narrow window before the Congressional calendar gets overtaken by the presidential race.

What then does mean for possible expansion of H-1B visas? Prospects for H-1B visa legislation are less dire than reform overall, but still uncertain in 2015. Many Republicans and Democrats support expansion of the program. In November 2012, the House passed the STEM Jobs Act by a vote of 245-139. But the White House said it opposed that measure because President Obama sought comprehensive immigration reform, not what it called "narrowly tailored" reforms.

Further, Sen. Grassley, who likely will become Judiciary Committee chair if Republicans regain the Senate majority, has expressed serious concerns about efforts to expand the program. More recently, Grassley was upset by statements that the President planned to implement H-1B reforms through executive action after the midterm elections. If the President follows through on his plan, you can expect Senate Republicans to become further inflamed and opposed to such executive action.

2. Digital Copyrights
While practically every member of Congress has a position on immigration reform/H-1B visas, few have staked out views on consideration of new digital copyright rules even though Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, has focused a great deal of attention on copyright reform in the current Congress. While Goodlatte has held no less than 10 hearings on different aspects of the topic, his Senate counterpart, Judiciary Committee Chairman Patrick Leahy (D-Vt.), has focused the Committee's resources elsewhere.

If Republicans regain the Senate majority, Sen. Grassley would become Judiciary Committee chair, and it is unclear whether this issue would be a top-line priority. Without question, though, copyright reform (just like patent reform) is an issue that the Congress has a hard time digesting. The problem is complex, and the potential for unintended consequences is great. Given the Senate's focus on other issues, it seems more likely than not that copyright reform will not be a major legislative priority in 2015, no matter which party controls the Senate. More work likely will be done in committee.

3. Patent Trolls
The one issue that may well be resuscitated if Republicans regain the Senate majority is legislation designed to crack down on patent trolls. There is House legislation directed at this matter, the Innovation Act, passed in December 2013 on a 325-91 vote. But the legislation stalled in the Senate after Judiciary Committee Chairman Leahy said stakeholders could not reach consensus.

Sen. Grassley spoke out in favor of the Senate companion legislation, the "Patent Transparency and Improvements Act," at a hearing in 2013, stating: "We should pass effective legislation to curtail abuses of the legal system."

Given the bipartisan vote in the House and White House support for the House bill, it should surprise no one if Chairman Grassley and Senate Republicans push this legislation if they regain the majority. The fact that this bill is opposed by some lawyers' groups will only entice Republicans further.

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About the Author(s)

David Ransom

Partner, McDermott Will & Emery

David Ransom is a Partner in the law firm of McDermott Will & Emery LLP and is based in the firm's Washington, D.C., office. He focuses his practice on regulatory and government affairs, representing clients before Congress and federal regulatory agencies on a wide range of matters, including tax, energy, healthcare, and environmental issues. He also has extensive experience representing clients in Congressional investigations. He previously served as Senior Communications and Policy Advisor to former US House Majority Leader Steny Hoyer (the current House Democratic Whip), advising him on communications, policy, political, and legislative strategy. In that capacity, his primary responsibilities included ensuring coordination between the leader's policy and communications operations, as well as drafting statements and speeches on all issues and producing advocacy materials for members. In his almost 10 years on Capitol Hill, Mr. Ransom acquired an extensive knowledge of members of Congress on both sides of the aisle, and counseled Congressman Hoyer during three leadership races. He also served as Communications Director for Congressman Hoyer when he first served as Democratic Whip (2003-06) and when he served as the ranking Democrat on the Committee on House Administration.

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