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The Year in Congress: How to Define an 'Accomplishment'
Posted On January 9, 2018
It is challenging to think about the accomplishments of the 115th Congress in 2017 without also remembering overwhelming partisanship, divisiveness, and dysfunction; the battles over immigration, the Affordable Care Act, and taxes; and the continuing saga of the current presidential administration. There is no question that all of this must be factored into any consideration of Congress’ work in the past year. The tax reform debate and legislation are a microcosm of the year: The legislation is passionately viewed by some as an outstanding accomplishment and equally passionately viewed by others as a political and economic failure.

But there is no question that Congress and the larger political process did accomplish a number of significant actions this past year, and they set the stage for additional accomplishments in 2018. Perhaps, then, the best way to approach this exploration is to consider Merriam-Webster’s first definition of “accomplish”—“to bring about (a result) by effort”—and leave it to the reader to assess whether any given accomplishment meets Webster’s other definition—in part, “to succeed.”

The conventional wisdom of assessing the work of a session of Congress is that the first year of the 2-year cycle begins with taking up leftover projects from the previous Congress, enacting some housekeeping legislation and maybe a few signature proposals, and then setting up for the second year of the session, during which the majority of bills will likely be passed. The 115th Congress in many respects followed this model, albeit with some notable exceptions.

Officially, Congress enacted 97 new laws between Jan. 20, 2017, and the end of the year. As is typical, many of these are largely routine or ceremonial, including various appropriations acts and bills to name new courthouses and post offices.

‘Disapproval’ Resolutions

However, last year, there was something a bit different as Congress passed a large number of “disapproval” resolutions. These were based on the Congressional Review Act, a 1996 law that allows Congress to essentially repeal regulations issued by federal administrative agencies through a joint congressional resolution. During the first 20 years of the Congressional Review Act’s life, only one regulation was disapproved (in 2001), and five proposed disapprovals enacted by the Republican-led 114th Congress were vetoed by President Barack Obama.

In 2017, the Congressional Review Act was used to disapprove 15 administrative regulations that were largely signed into law during the Obama administration. They include a Federal Communications Commission (FCC) rule protecting the privacy of broadband customers, a Department of Labor rule related to drug testing, a Department of Education rule related to teacher preparation, and a Consumer Financial Protection Bureau rule related to consumer arbitration agreements. In each case, the disapproval was enacted by Congress and signed by the president.

Net Neutrality

Notably absent from this list of disapprovals were the FCC’s Net Neutrality regulations. After extended debate that predated the Obama administration, the FCC adopted a change to its regulatory structure that allowed for more oversight of broadband and mobile ISPs. Using that authority, the FCC approved the Open Internet initiative, which required ISPs to not discriminate in providing content nor favor content based on type, size, provider, or payment.

In December, the FCC, which had transitioned from Democratic to Republican leadership with the new administration, reversed its regulatory policy and in so doing, eliminated the Open Internet rule requiring Net Neutrality. This expected but controversial decision has triggered an interest from Congress in taking the matter out of the FCC’s hands. In December, several lawmakers indicated they would soon unveil draft legislation that would provide certainty to ISPs, content providers, and users.  However, the final form of that certainty—perhaps allowing some paid prioritization or other fast tracks while limiting arbitrary or random throttling—will likely be subject to Congress’ ongoing partisan dynamics.

Tax Reform

Of course, the piece of legislation dominating recent news has been the Tax Cuts and Jobs Act, more commonly known as Tax Reform, which was finalized on Dec. 22. The broad outlines of the act have been widely reported—reductions in corporate taxes, increases in the standard deduction for individuals, limits on deductibility of state and local taxes, and fewer and generally lower tax brackets, among others.

The direct impact of tax reform is still under some speculation. The technology and content industries have largely cheered the law, particularly the reduction in corporate taxes. A lesser-known provision of the bill also eliminated a corporate Alternative Minimum Tax (AMT), which served as a check against taking too many deductions. Among the deductions that often triggered the AMT were expenses for R&D. By eliminating the AMT, the act supports technology R&D by ensuring that those expenses remain fully deductible. However, with many major technology and information industries based in high-tax states such as California and New York, there are concerns about the impact of the new limits on deducting state and local taxes on employees and contractors.

Other Bills

In addition to tax reform, Congress passed a modest number of substantial bills that flew under the partisan radar and are likely to have some impact on the information industry and society at large. The NASA Transition Authorization Act provides clarity and support for continued developments toward the next generation of commercial and governmental space exploration, including a planned mission to Mars in the 2020s. A similar act provides new resources and funding for weather prediction technology, seeking to improve storm prediction and first response. Other congressional actions are expected to lead to improved access to emergency medications, a coordinated response to human trafficking that occurs through different modes of transportation, improved protections for government whistleblowers, and allowing government employees to use Lyft and Uber while on government travel, among others.

Copyright Reform and More

Of course, Congress continues to propose and work on new legislation, some of which could be enacted in 2018. Efforts at copyright reform continue largely behind the scenes, but more limited proposals are currently before Congress to restructure the U.S. Copyright Office, balance copyright royalties between traditional radio and digital streaming, and set up a low-cost small claims court for addressing copyright disputes. Congress is also actively working on bills (here and here) that could make websites liable for user content that promotes sex trafficking. The bills would carve out an exception to Section 230 of the Communications Decency Act, which largely shields websites from being legally liable for content created by users. Congress also recently proposed legislation that would recommend guidelines for the development and promotion of artificial intelligence technologies.

More broadly, intelligence surveillance, immigration reform, and infrastructure funding are all expected to be on Congress’ agenda for 2018 and could significantly impact the information industry. However, the political and partisan dynamics that roiled 2017 will continue to play out in 2018 with the added impact of the upcoming midterm elections. Hang on tight!

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

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