Early in his first term, President Obama told defeated Republicans that “elections have consequences.” Now that the Republicans will control the Senate and have an even bigger margin in the House, the proverbial shoe is on the other foot, and there will be consequences for the tech industry, some good, some bad, some too close to call.
You’ll likely see changes in immigration policy favoring companies that want to raise the cap on H-1B visas, but the already slim chances of any significant action to protect Net neutrality will fade to zero. There may well be legislation to continue the reform of the patent system, but more Congressional action to further curb government spying and data vacuuming is uncertain at best.
The tech industry has become a serious player in Washington, D.C., learning how to use lobbyists and campaign contributions to push an agenda. That won’t change, but tech companies like Apple, Google, and Microsoft will get less clout per dollar, while telecom and cable giants will live large.
There was one clear victory for tech: the re-election of Sen. Al Franken (D-Minn.). Franken has been firm in support of Net neutrality and against the NSA’s campaign of spying. He’s also on Comcast’s bad list -- a badge of honor -- because he opposes the dangerous merger of Comcast and Time-Warner Cable.
Net neutrality: No way, no how
No single tech-related issue will be more affected by Tuesday's U.S. election results than Net neutrality. Blocking encroachments by carriers and cable companies was already a long shot. FCC Chairman Tom Wheeler has proved to be a weak-kneed defender of the Internet, and facing a unified Republican Congress will put no starch in his spine.
Even if Wheeler suddenly gets religion and reclassifies ISPs as common carriers that can be regulated by the FCC, Congress will almost certainly attempt to kill it. As the Washington Post noted, “the Gingrich-era Congressional Review Act gives Congress the power to erase specific agency rules. Indeed, after the FCC passed its first round of open Internet rules in 2010, the Republican-led House passed a Resolution of Disapproval, arguing that the agency should not weigh in on the issue at all.”
However, it’s possible that President Obama would veto such a move, or maybe Wheeler will move fast enough so that Republicans won’t be able to pass it in the lame-duck session.
Making matters worse was the defeat of Sen. Mark Udall in Colorado – a staunch advocate for Net neutrality and privacy -- by Rep. Cory Gardner, who has been on the record against reclassification, and the easy re-election of Sen. Fred Upton (R-S.D.), who will remain chairman of the powerful House Energy and Commerce Committee, which has jurisdiction over Internet, telecommunications, and the media industries.
More H-1B visas
This is one the tech industry will likely win -- though as I’ve argued for years, it will be a defeat for IT workers.
Silicon Valley CEO after CEO has spoken, written op-eds, and spent money in the pursuit of a higher cap on H-1B visas. There’s a fair amount of support for it on both sides of the aisle, so the addition of six or seven Republicans will make it easier to pass. Ironically, one of the strongest opponents of H-1B abuse is Sen. Chuck Grassley (R-Iowa), whose term has a few years to run.
It’s not as if the flow of H-1B visa holders is a mere trickle. Last year, tech companies snapped up all 65,000 H-1B slots in five -- count 'em -- days. This year, all 65,000 (plus 20,000 more for holders of advanced degrees) were gone in, yes, five days, despite the marked slowing in IT hiring in the early part of the year and the increased use of benefit-deprived contractors.
The tech barons want more. My guess is they’ll get it this time.
There is one caveat. While Republicans would like to raise the cap, they have little or no interest in broader immigration reform. Obama would certainly prefer a broader bill, so he might block a very narrow one. But given his ties to the tech industry, I suspect he’d sign it.
Will the new Congress rein in the NSA?
This is interesting and not a foregone conclusion by any means, says Mark Jaycox, legislative analyst for the Electronic Frontier Foundation. Two of the new Republican senators, Gardner in Utah and Joni Ernst in Iowa, have decent records on government intrusion, he says.
In some ways this is not the most partisan issue in the Senate. California’s Dianne Feinstein -- who chairs the Intelligence committee -- is no friend of privacy, but libertarians like Kentucky’s Rand Paul and some younger Republicans are at least wary of government intrusion.
EFF's Jaycox notes that much will depend on who the new majority leader seats on the Intelligence and Judiciary committees. However that shakes out, “it is a sad day when Sen. Udall lost; he’s been at forefront of transparency issues and the right of the public to be informed,” he said.
Another privacy advocate, Sen. Mark Begich (D-Alaska) may also lose his seat, though as I write this, the election is still too close to call.
Frankly, the tech industry will have to lead on this one. Apple and other companies that are losing overseas business and customer confidence are adding encryption and more security features to their products and pushing back against overarching demands for customer data.
Patent reform looking better
Because outgoing majority leader Harry Reid of Nevada and other Dems are generally in bed with trial lawyers, they’ve hesitated to lean on the patent trolls. Republicans are more likely to go ahead with legislation that stops stupid litigation. Indeed, they helped pass an antitroll bill in the House, but it died in the Senate. Still, there’s been progress.
It’s no slam dunk, though. Reform advocates, many of whom are close to the Democrats, will have to reach out to the GOP and “credibly voice small-business concerns as opposed to coming across as IP socialists,” says Florian Mueller, a patent activist and consultant.
Tech has a good deal of influence in Washington, but it isn’t always beloved, even on its home turf. Although Silicon Valley isn’t in the throes of a San Francisco-style antitech rebellion, people in the Valley don’t always trust the digerati. One example: The apparent loss of tech-backed House candidate Ro Khanna to incumbent Mike Honda, an old-line, pro-labor liberal.
How all this translates into actions that affect tech workers and the industry will take a little while to become clear.
Congress moves very slowly, and as we get closer to the next presidential campaign, it will move even slower. There might be a window of a year or so to get anything done in Washington, whether it's about tech or other issues. We’ll see.