House Judiciary Is Murky, Even for Hill Veterans

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WASHINGTON, DC - JULY 17: (L-R) James Cole, Deputy Attorney General, Robert S. Litt, Office of Director of National Intelligence, John Inglis, National Security Agency Deputy Director, and Stephanie Douglas, FBI National Security Branch, raise their right hands as they are sworn in before testifying before the House Judiciary Committee, July 17, 2013 in Washington, DC. The committee is hearing testimony from members of the intelligence community on oversight of the Obama Administration's use of the Foreign Intelligence Surveillance Act (FISA).
National Journal
Fawn Johnson Billy House
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Fawn Johnson Billy House
Dec. 11, 2013, 3:08 p.m.

When the Beer In­sti­tute dis­covered that Rep. Jason Chaf­fetz had in­tro­duced a bill in 2011 to change the way states reg­u­late al­co­hol sales, they knew they were in trouble. They saw the le­gis­la­tion as fa­vor­ing beer whole­salers over their mem­bers, the man­u­fac­tur­ers, and needed help ex­plain­ing their story on Cap­it­ol Hill.

The prob­lem was, they didn’t know much about the law­makers who had the most in­flu­ence on the is­sue. Like thou­sands of oth­er niche bills in­tro­duced every year, the Utah Re­pub­lic­an’s le­gis­la­tion was re­ferred to the House Ju­di­ciary Com­mit­tee. And that’s one corner of the Hill where even vet­er­ans have trouble chart­ing a path.

“Un­like some of the oth­er busiest com­mit­tees — Ways and Means, Ap­pro­pri­ations, Fin­ance for sure, it’s all about money — and this is all about a lot of oth­er as­pects of people’s lives,” said Ju­di­ciary Chair­man Bob Good­latte, who took the helm of the com­mit­tee in Janu­ary.

Ju­di­ciary Com­mit­tee staffers and mem­bers proudly state that their com­mit­tee cov­ers just about everything. It has jur­is­dic­tion over le­gis­la­tion on the way beer is taxed and a bill to force the Wash­ing­ton Red­skins to change their name. The pan­el also presided over the 1998 im­peach­ment of Pres­id­ent Clin­ton.

While the Ju­di­ciary Com­mit­tee is best known for shout­ing matches over red-meat is­sues like guns, abor­tion, and im­mig­ra­tion, the more power­ful as­pects of the com­mit­tee are less sexy: in­tel­lec­tu­al prop­erty, state tax­a­tion, bank­ruptcy, and pat­ents. “In the last sev­er­al years, the tech side of the Ju­di­ciary Com­mit­tee has been em­phas­ized,” said Rep. Lamar Smith, R-Texas, a 26-year vet­er­an of the com­mit­tee and a former chair­man.

It’s a broad bas­ket, and not al­ways easy to nav­ig­ate. In fact, when the Beer In­sti­tute con­fron­ted the Chaf­fetz bill, it hired Carl Thorsen and Alec French of Thorsen French Ad­vocacy, a two-per­son boutique lob­by­ing shop that spe­cial­izes in the com­mit­tee.

The need is great enough that the firm at­tracts cli­ents as di­verse as Sprint and PhRMA. As Thorsen put it, “Al­most every­body even­tu­ally runs in­to a Ju­di­ciary Com­mit­tee is­sue.”

SLOW AND STEADY

For bet­ter or worse, lob­by­ists and act­iv­ists can count on a slow and steady ap­proach when they get there. Noth­ing goes through the com­mit­tee at a rap­id-fire pace, much to the chag­rin of ad­voc­ates for change, like gun-con­trol or im­mig­ra­tion ad­voc­ates.

Good­latte has been par­tic­u­larly care­ful on im­mig­ra­tion over the last year, de­lib­er­ately for­cing a step-by-step ap­proach to the is­sue. The tac­tic is spe­cific­ally de­signed to look as dif­fer­ent as pos­sible from the Sen­ate’s suc­cess­ful six-month ef­fort to pass com­pre­hens­ive le­gis­la­tion earli­er this year.

The Ju­di­ciary Com­mit­tee has pro­duced four smal­ler bills — on ag­ri­cul­ture work­ers, high-skill visas, elec­tron­ic veri­fic­a­tion, and loc­al po­lice en­force­ment — and the pan­el has at least three more bills com­ing. None of this le­gis­la­tion has seen a vote on the House floor, but Good­latte in­sists the time is com­ing … even­tu­ally.

Ad­voc­ates for a path to cit­izen­ship see Good­latte’s meth­od as a way of softly killing im­mig­ra­tion re­form, a top pri­or­ity for Pres­id­ent Obama. But Good­latte, if noth­ing else, is con­sist­ent on a sub­ject that he thinks is too com­plex to take on in one bite.

“To me, it’s more im­port­ant to get it right than to meet any spe­cif­ic timetable,” he said. He has said the same thing dozens of times since the Sen­ate passed its bill in June.

On guns, Good­latte made it clear al­most im­me­di­ately after the New­town mas­sacre that the Re­pub­lic­ans were not in­ter­ested in en­act­ing new gun re­stric­tions. A year later, he proudly notes that the com­mit­tee did foster pro­duct­ive dis­cus­sion about how cur­rent gun laws aren’t be­ing en­forced.

“I think there is con­sensus there that should take place,” he said.

A TECH BATTLE­GROUND

In truth, the Ju­di­ciary Com­mit­tee isn’t of­ten a House mem­ber’s first choice. Those in­ter­ested in tech­no­logy may get as­signed to Ju­di­ciary as a con­sol­a­tion prize if they can’t land a seat on the En­ergy and Com­merce Com­mit­tee. But many soon real­ize just how much in­flu­ence they can wield in the same tele­com world that blankets the En­ergy and Com­merce Com­mit­tee — and not Ju­di­ciary — with lob­by­ists. On the Ju­di­ciary Com­mit­tee, there is less com­pet­i­tion for the top sub­com­mit­tee slots and more lee­way to look in­to is­sues of in­terest.

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Good­latte real­ized the pan­el’s tech­no­logy-re­lated po­ten­tial early on. When he was a re­l­at­ively ju­ni­or mem­ber, then-Chair­man Henry Hyde, R-Ill., as­signed Good­latte to be the lead ne­go­ti­at­or on le­gis­la­tion that even­tu­ally be­came the Di­git­al Mil­len­ni­um Copy­right Act of 1998, the law that is cred­ited with al­low­ing Web-based products to bur­geon by cre­at­ing the oft-ma­ligned concept of “di­git­al rights man­age­ment.”

The Copy­right Act was just the be­gin­ning of a plunge in­to tech­no­logy by the com­mit­tee. Rep. Jim Sensen­bren­ner, R-Wis., who chaired Ju­di­ciary from 2001 to 2007, ag­gress­ively ex­pan­ded the com­mit­tee’s jur­is­dic­tion over in­tel­lec­tu­al prop­erty. He shep­her­ded the In­tel­lec­tu­al Prop­erty Pro­tec­tion Act of 2006, which ex­pan­ded the Copy­right Act’s scope. By the time Lamar Smith took over in 2011, Re­pub­lic­ans had es­tab­lished a trend. Smith sponsored the Amer­ica In­vents Act, one of the most sig­ni­fic­ant pat­ent-law over­hauls in 60 years. Just last week, the House passed an­oth­er pat­ent bill de­signed to rein in “pat­ent trolls,” com­pan­ies that take out low-cost pat­ents and sue man­u­fac­tur­ers who use sim­il­ar tech­no­logy.

Good­latte says he runs the com­mit­tee like Hyde, who as­sumed the Ju­di­ciary gavel in 1995 when Re­pub­lic­ans took over the House. “Henry Hyde is really my role mod­el. He took the op­por­tun­ity to take new mem­bers that were vir­tu­ally ig­nored. I don’t care if they were Demo­crats or Re­pub­lic­ans — they were ig­nored, “¦ and he gave them op­por­tun­it­ies. He gave me op­por­tun­it­ies,” Good­latte said.

Good­latte now makes sure that lots of com­mit­tee mem­bers, even re­l­at­ively ju­ni­or ones, have sim­il­ar chances. Rep. Trey Gowdy, R-S.C., is only in his second term, yet he chairs the high-pro­file Im­mig­ra­tion and Bor­der Se­cur­ity Sub­com­mit­tee. Rep. Doug Collins, R-Ga., a fresh­man, was the lead spon­sor on a bill cur­tail­ing ad­min­is­trat­ive con­sent de­crees, part of the com­mit­tee’s slate of reg­u­lat­ory re­form bills.

Of course, there are plenty of meaty top­ics to go around — and not all are head­line-grabbing polit­ic­al head­aches like gun con­trol or abor­tion. For ex­ample, there are state tax­a­tion laws. This is where the Beer In­sti­tute found it­self in trouble. The Ju­di­ciary Com­mit­tee has jur­is­dic­tion over state tax­a­tion on in­ter­state com­merce, and Chaf­fetz’s bill would have al­lowed states to fa­vor in-state beer sellers, mak­ing it more dif­fi­cult for smal­ler brew­ers to ship their goods across state lines. The bill died in the last Con­gress.

An In­ter­net sales tax, an idea that whips both tech and tax lob­by­ists in­to a froth, is also a Ju­di­ciary Com­mit­tee is­sue. So is “ad­min­is­trat­ive law” — which cov­ers just about every fed­er­al reg­u­la­tion — and an­ti­trust is­sues. The failed AT&T/T-Mo­bile mer­ger and the suc­cess­ful Con­tin­ent­al/United Air­lines uni­on were all Ju­di­ciary Com­mit­tee fod­der.

SCUFFLES AND STUNTS

Of course, the com­mit­tee is also not above par­tis­an­ship and the­at­ric­al stunts. Last week, the pan­el held a pub­li­city-minded hear­ing about vari­ous in­frac­tions — some of which mem­bers claim are im­peach­able — com­mit­ted by Pres­id­ent Obama. The hear­ing provided satire for a few Wash­ing­ton pub­lic­a­tions. Roll Call likened the event to a post-Thanks­giv­ing rant among dis­agree­able fam­ily mem­bers.

This year, the com­mit­tee has had a par­tic­u­larly tense re­la­tion­ship with At­tor­ney Gen­er­al Eric Hold­er, who ac­cused com­mit­tee mem­ber Dar­rell Issa, R-Cal­if., of “un­ac­cept­able and shame­ful” be­ha­vi­or. Later, the com­mit­tee star­ted an in­vest­ig­a­tion in­to wheth­er Hold­er had per­jured him­self at the same hear­ing un­der ques­tion­ing from an­oth­er law­maker. That in­quiry ap­peared to whith­er on the vine.

When Demo­crats were in charge, Im­mig­ra­tion Sub­com­mit­tee Chair­wo­man Zoe Lof­gren, D-Cal­if., in­vited com­ic Steph­en Col­bert in 2010 to testi­fy about ag­ri­cul­ture work­ers. He begged not to be sent back to the fields. In 2009, An­ti­trust Sub­com­mit­tee Chair­man Hank John­son, D-Ga., in­tro­duced a com­mit­tee pan­el with the fol­low­ing state­ment: “Hear ye, hear ye, hear ye…. Come for­ward and as­sume the po­s­i­tion.”

The com­mit­tee also at­tracts more than its fair share of col­or­ful char­ac­ters, in­clud­ing anti-Obama­care law­makers like Reps. Steve King, R-Iowa, and Louie Gohmert, R-Texas. Gohmert re­cently ques­tioned on a Chris­ti­an ra­dio pro­gram wheth­er Obama’s of­ficer corps de­veloped un­der the Af­ford­able Care Act were be­ing trained with “weapons or syr­inges.” King, also an im­mig­ra­tion hard-liner, once built a mod­el of a card­board bor­der fence on the House floor.

On the Demo­crat­ic side, Rep. John Con­yers of Michigan, the cur­rent rank­ing mem­ber and former chair­man who has served in Con­gress for al­most 50 years, is un­abashedly lib­er­al and waxes po­et­ic about the civil-rights era. There’s also Rep. Sheila Jack­son Lee, D-Texas, who isn’t afraid to say ex­actly what she thinks in­to her com­mit­tee mi­cro­phone, which is of­ten about what the ma­jor­ity is full of. She coined a new term, “gobbledy-gock,” at a hear­ing last week.

Even de­cid­ing sub­com­mit­tee names has been con­ten­tious. A Demo­crat­ic aide notes that when Re­pub­lic­ans took power in 1995, they changed the Sub­com­mit­tee on Civil and Con­sti­tu­tion­al Rights to the Sub­com­mit­tee on the Con­sti­tu­tion. When the Demo­crats re­took the ma­jor­ity in 2007, they changed it to the Sub­com­mit­tee on the Con­sti­tu­tion, Civil Rights, and Civil Liber­ties. When the Re­pub­lic­ans re­gained House con­trol in 2011, they changed it back to the Sub­com­mit­tee on the Con­sti­tu­tion, but ad­ded “Civil Justice” to de­note its tort-law jur­is­dic­tion.

“A lot of the is­sues that go be­fore the Ju­di­ciary Com­mit­tee are highly emo­tion­al and highly par­tis­an is­sues, and you can ex­pect a party-line vote re­gard­less of who is in the ma­jor­ity on most of the stuff,” said Sensen­bren­ner. When he was chair­man, he said he reached a deal with Con­yers: Staffers for both sides should work out everything they pos­sibly could be­fore a com­mit­tee markup. “We re­stric­ted the de­bates to things that were really con­tro­ver­sial.”

In those years, Con­yers in­voked a phrase he still reg­u­larly uses: “We can dis­agree without be­ing dis­agree­able.”

But while the 200-year-old Ju­di­ciary Com­mit­tee is cer­tainly an arena for in­tense, par­tis­an dis­cus­sions re­lated to so­cial is­sues, in­clud­ing vot­ing and civil rights, im­mig­ra­tion, and re­pro­duct­ive rights, it also has been a vehicle for bi­par­tis­an dis­cus­sion and pro­gress in oth­er areas. The pat­ent bill, for ex­ample, passed the com­mit­tee on a 33-5 vote. It passed the House over­whelm­ingly, 325-91.

“It’s been a wel­come ex­per­i­ence to me, giv­en the gen­er­al per­cep­tion the Ju­di­ciary Com­mit­tee is just a place for in­tense par­tis­an war­fare,” offered fresh­man Demo­crat­ic com­mit­tee mem­ber Ha­keem Jef­fries, D-N.Y.

“While there are ser­i­ous dis­agree­ments on ideo­lo­gic­al grounds across a wide spec­trum of is­sues that come be­fore the Ju­di­ciary Com­mit­tee,” Jef­fries said, “giv­en the jur­is­dic­tion [of] in­tel­lec­tu­al prop­erty and In­ter­net space, as well as the bi­par­tis­an work on [sen­ten­cing re­form], “¦ it is also a place where Demo­crats and Re­pub­lic­ans can work to­geth­er.”

Good­latte de­scribes the com­mit­tee’s fo­cus on the Con­sti­tu­tion and the Bill of Rights as a draw. “If you love the law, you really want to serve on the House Ju­di­ciary Com­mit­tee,” he said.

Oth­ers note that is­sues like abor­tion, gun con­trol, im­mig­ra­tion, and tort re­form have little middle ground, giv­ing pan­el mem­bers few­er areas for com­prom­ise. “The Ju­di­ciary Com­mit­tee has prob­ably the strongest and most ar­dent ad­voc­ates on both sides of con­sti­tu­tion­al in­ter­pret­a­tion,” said Rep. Trent Franks, R-Ar­iz., a con­ser­vat­ive who chairs the Con­sti­tu­tion and Civil Justice Sub­com­mit­tee. “It’s tough. It’s prob­ably the most par­tis­an com­mit­tee in Con­gress.”

Still, Con­yers, the top com­mit­tee Demo­crat who was him­self chair­man from 2007 to 2011, re­frains from dir­ectly cri­ti­ciz­ing Good­latte or the man­ner in which he runs the com­mit­tee.

“The fact of the mat­ter is that we were pur­su­ing a com­pletely dif­fer­ent con­sti­tu­tion­al tra­ject­ory,” he said. “So it isn’t the way it’s be­ing run, as much as the sub­ject mat­ter, the le­gis­lat­ive sub­ject mat­ter.”

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