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The Senate Should Take the DOTCOM Act Off Cruz Control

Philip S. Corwin

Senator Ted Cruz wants a vote on his version of the DOTCOM Act. If that's what it takes to enact it the Senate should give it to him.

Recently we speculated on the question "Will 2016 Politics Trump Bipartisan Support for the MSM and DOTCOM Act?" That article discussed the possibility that the Obama Administration's decision to relinquish ICANN stewardship via the periodic re-awarding of the IANA functions contract might arise in the ongoing U.S. Presidential sweepstakes, most likely from a Republican entrenched in the far right wing of that Party. We also discussed whether its introduction might erode the currently broad and bipartisan Congressional acceptance of the transition (so long as it meets NTIA's evaluation criteria and empowers the ICANN community with substantially strengthened accountability measures) as both delivery of the plan and the 2016 elections approach convergence next summer.

Such political entanglement became more probable in the last week as Ted Cruz, Junior Senator from the state of Texas, placed a "hold" on the DOTCOM Act (S.1551). Four Senators had joined Cruz in voting for the amendment he presented in Commerce Committee markup on June 25th, which would have amended DOTCOM to require an affirmative Congressional vote of approval for a Joint Resolution before the IANA transition could be consummated. That amendment failed on a rollcall vote of 19-5, and the bill was reported from Committee on a voice vote.

As reported from Committee, DOTCOM accords Congress thirty "legislative days" to review the transition plan but does not require subsequent Congressional approval. However, Congress has already shown that it can utilize its "power of the purse" to block the transition, as NTIA has publicly acknowledged that appropriations language currently in effect blocks the transition until September 30, 2015, the end of the current fiscal year for the U.S. government. The as yet un-enacted FY 16 appropriations bill for the Commerce Department (H.R. 2578) may or may not continue the prohibition.

The House-passed version extends that prohibition on the IANA transition with this language:

Internet Corporation for Assigned Names and Numbers (ICANN).--The Committee remains concerned by NTIA's announcement of its intent to transition certain Internet domain name functions to the global multistakeholder community. Any such transition represents a significant public policy change and should be preceded by an open and transparent process. In order for this issue to be considered more fully by the Congress, the Committee maintains section 536 prohibiting funding for the transition. (Emphasis added)

But the companion bill awaiting Senate action does not extend the bar, requiring only advance notice from NTIA before the transition occurs:

Internet Governance.--The Committee understands NTIA's plans to transition the agency's technical stewardship of the Internet Assigned Numbers Authority [IANA] and that NTIA is currently awaiting the delivery of a transition plan that it can evaluate. The current IANA contract expires at the end of September 2015, and at this time, NTIA is preparing to evaluate its option to extend that contract. This is being done with the expectation that a transition plan will not be put forward early enough to fully evaluate before the expiration of the current IANA contract. The Committee continues to be concerned about this process and supports the continued stewardship role of the United States over the domain name system in order to ensure the security of the .gov and .mil domains and to protect the freedom of speech and expression internationally. The Committee directs NTIA to continue quarterly reports to the Committee on all aspects of the transition process, and further directs NTIA to inform the Committee and the Senate Committee on Commerce, Science and Transportation, not less than 45 days in advance of any decision with respect to a successor contract. (Emphasis added)

The final version of the Commerce appropriations bill must reconcile this difference prior to being sent to the President. However, even if the FY 16 bill lacks an outright prohibition on the transition, that option would remain available as a legislative snapback if Congress believes that the final plan received next year fails to satisfy relevant criteria, or receives extensive input from ICANN stakeholders that its accountability measures are insufficient.

For those unfamiliar with Senate protocols and procedures, a "hold" does not block the Senate from taking up a bill. Rather, it is a courtesy by which a Senator advises the leadership of his party that he/she has a concern about that legislation and may offer an amendment(s), or may engage in extended debate (otherwise known as a filibuster). When exercised late in the closing days of a Congress a hold can effectively kill a bill, because at that point the Senate is rushing to complete must pass matters on which it has procrastinated to excess, and it therefore operates under "unanimous consent" procedures in which a single objecting Senator can block a bill because there is simply no time left to wait out delaying tactics.

But we are only in the midst of the first Congressional session, so Cruz's hold can at most act as a speed hump that briefly slows DOTCOM's almost inevitable passage and transmission to President Obama for signing.

Just after Cruz's hold on DOTCOM became known the bill's original author, Rep. John Shimkus (R-IL), said that the action "only undermines Congress's role", adding, "Without congressional action, the Obama administration is under no obligation to renew the existing U.S. contract with ICANN or to consult with Congress at all before relinquishing oversight of the DNS. Once a congressional review period is required by law through the DOTCOM Act, additional legislation action can be taken based upon the details of ICANN's proposal, NTIA's certification, and the ongoing GAO investigation. Holding up this broadly supported legislation now only undermines Congress's role in the process." Rep. Shimkus is facing a frequent frustration for House members, who pass bills by wide margins only to watch them languish and, often, expire on the other side of Capitol Hill. There is even a House aphorism that sums up the situation: "The other party is the opposition, but the Senate is the enemy." In its defense, by slowing and sometimes strangling legislation the Senate is fulfilling the Constitutional function envisioned by the Republic's Founders; as George Washington explained to Thomas Jefferson, "we pour legislation into the senatorial saucer to cool it."

In response to Shimkus, a Cruz spokesperson told the press that the Senator "believes there are good provisions in the DOTCOM Act that will improve Internet governance," but also "feels strongly that Congress should at least have a vote on whether to give away the Internet… This is why during the markup of the DOTCOM Act, Sen. Cruz proposed an amendment that would require a simple majority vote on the Obama administration's plan. Those important concerns still remain."

For his part, Senate Commerce Committee Chairman John Thune (R-SD) told the press he was negotiating with Cruz to lift his hold, stating, "We're not there yet, but I'm hopeful that he will come around to our point of view...We've been discussing it ...and hopefully we'll get him to conclude that this is something that needs to be done, and the House will want to move that bill and get it on the president's desk. We ought to be able to get this thing processed."

Cruz doubled down on his hold when, later in the week, he filed an amendment to offer his beefed up version of DOTCOM to the Highway Trust Fund bill that the Senate was currently debating. This highway bill is generally regarded as must pass legislation, not only because it funds repairs and expansion of U.S. infrastructure but in addition contains oodles of "pork" in the form of construction contracts for every state and Congressional district. Cruz explained he was motivated to file the amendment because, "If my amendment is not adopted, here's a look into what will happen: the report will be submitted to Congress. Thirty legislative days will pass. Congress will do nothing. The version I have filed simply reverses that presumption and says that the contract with ICANN has to maintain in place unless Congress acts."

But this was not the only amendment that Cruz filed to be offered on the highway bill. In fact there were seven others; according to one press report:

Cruz's amendments all hit on popular conservative issues. In addition to repealing Obamacare, they would remove federal funding for Planned Parenthood, prohibit illegal immigrants granted deportation relief under an executive order from working on federally funded highway projects, place a permanent moratorium on federal internet access taxes, and block a nuclear deal with Iran unless the Islamic Republic recognizes the state of Israel and releases American hostages currently imprisoned there.

Cruz justified this plethora of amendments with this statement: "Each of these amendments addresses a critical policy issue that deserves Congress' full attention. I fully intend to take this opportunity to stand against the Washington Cartel and to stand for liberty and our Constitutional rights."
But these amendments were also part of a larger strategy to block the highway bill if Senate Majority Leader Mitch McConnell (R-KY) allowed an amendment to be offered to restore funding for the Export-Import Bank. While a majority of Senators regard Ex-Im as a pragmatic means of trade financing that benefits U.S. exporters, Tea Party conservatives view Ex-IM as an unforgiveable example of corporate welfare and crony capitalism.

While seeking to block the Ex-Im vote, on Friday July 25th Cruz fully burned his bridges with Senate leadership by taking to the Senate floor and proclaiming, in what one report deemed "a 20-minute tirade", that Leader McConnell had breached a promise to fellow Republicans, proclaiming:

"I cannot believe he would tell a flat-out lie," adding that allowing a vote on the Ex-Im Bank was "an absolute demonstration that not only what he told every Republican senator, but what he told the press over and over and over again, was a simple lie."

That outburst was not only a rare breach of Senate decorum but perhaps of its Rules as well, which prohibit the use of "any form of words" to "impute to another senator or to other senators any conduct or motive unworthy or unbecoming a senator." While Majority Leader McConnell did not issue a response, it's hardly a stretch to think that he is unenthusiastic about providing any assistance that boosts Cruz's standing in the Republican Presidential contest, where he is one of sixteen declared candidates and currently has a 5.7% share of support among likely Republican voters according to the Real Clear Politics average of recent national polls. Indeed, McConnell recently indicated his deepening displeasure with Cruz by keeping him off the Conference Committee on the National Defense Authorization Act, the annual military spending bill, reportedly out of concern "that the notorious grandstander would tank the crucial spending bill".

Cruz's highway bill strategy crashed and burned on July 26th when, in a rare Sunday session, the Senate added Ex-Im reauthorization to it by a 67-26 vote. Further, in what Politico termed a "smackdown" reaction to his "lie" accusations, Cruz was unable to get a second from any other Senator to revive a vote on his Iran amendment. The report summed up the situation thusly: "It all went down in an instant, but the message was clear: If Cruz doesn't want to play nice with his Republican colleagues, they will respond in kind."

McConnell has also now used the parliamentary maneuver of invoking cloture to block any additional amendments to the highway bill that leadership has not agreed to (there were many others besides Cruz who sought votes on unrelated matters). This means that Cruz will be unable to offer his DOTCOM amendment to the highway bill. But it is quite unlikely that he will walk away from the issue of requiring a Congressional vote on the IANA transition.

Whatever one's views on Cruz's hard-right, take-no-prisoner brand of politics, he holds an impressive background and has prospered politically by bucking his party's establishment. A graduate of Princeton University (where he was a champion debater) and Harvard Law School, he clerked for Supreme Court Chief Justice William Rehnquist and served as a domestic policy advisor to the 2000 Bush-Cheney Presidential campaign. He then became the first Hispanic to serve as Texas Solicitor General and argued before the Supreme Court nine times during the five years he held the office.

Cruz secured his Senate seat by taking on the preferred candidate of the Texas Republican power structure, including then-Governor (and now fellow Presidential candidate) Rick Perry. Cruz won a runoff primary election by 57%-43% and then went on to defeat the Democratic candidate in the 2012 general election by 56%-41%. Since becoming a Senator, Cruz has often worked with fellow iconoclastic and far-right Senator Rand Paul (R-KY); Paul hails from Kentucky, home to Majority Leader McConnell, and is also vying for the Presidency and hoping to attract much the same slice of the electorate as Cruz, including current fans of front-ranked candidate Donald Trump (Sen. Marco Rubio (R-FL), also vying for the GOP nomination, is from the Party's moderate wing and is an original cosponsor of DOTCOM) . This past January McConnell jokingly told a dinner crowd, in response to Cruz's public vow to throw himself in front of a train if that's what it took to bring down Obamacare, "That idea has some merit to it."

From Cruz's perspective, persistence in pushing his version of DOTCOM is probably a no-lose situation. If he somehow wins then he can claim to have scored a victory for Congressional oversight power (never mind that the House, which passed its version of DOTCOM (H.R. 805) by a landslide vote of 378-25 would be reluctant to reopen the matter, and that President Obama would likely veto any version of the bill requiring affirmative Congressional approval of the transition). In the far more likely scenario of losing, he will have one more issue where he can claim he stood strong for principle when others chose expediency. It would also be consistent with his view on enacting a conservative agenda, as shared with National Review magazine: "What it takes is backbone, the willingness to stand and fight. Of those who have firm principles, even fewer have the backbones to stand for those principles when the heat is on." Since arriving at the Senate, Cruz has displayed his "backbone" through such actions as leading a government shutdown over the Affordable Care Act (ACA/Obamacare) in 2013 and, more recently, engaging in a 21-hour filibuster over that very same ACA.

Given that Cruz is unlikely to release his hold on DOTCOM unless he is given an ironclad promise that he will be permitted to offer and get a substantive vote on his amendment, the Senate should bring the bill up and give him his vote. The same proposal lost in Committee by a 4:1 margin and would likely perform about as well in the full Senate.

It would also be preferable that the amendment get an up or down vote on its substance, rather than being placed aside through a "tabling" motion. The debate around the amendment and the bill itself would probably solidify bipartisan Senate support for letting the transition proceed if NTIA's conditions are satisfied and ICANN stakeholders are empowered to exercise strong accountability. And that support would in turn further empower ICANN's stakeholders as final details are worked out.

The Senate regards itself as the world's greatest deliberative body, but its commitment to open debate suffered substantially under the leadership of prior Majority Leader Harry Reid (D-NV), who used parliamentary tactics to block most amendments in the mistaken belief that protecting fellow Democrats from casting tough votes would help them retain Senate control (the 2014 elections said otherwise). A vigorous debate on Cruz's DOTCOM substitute would probably encompass not just his proposal but the overall wisdom of the termination of ICANN stewardship — and that could help inoculate it against the gusty political winds of 2016. Avoiding a vote and the debate that comes with it would, to the contrary, increase suspicion that the transition can't withstand close scrutiny.

Letting Cruz offer his amendment, defeating it, and passing the DOTCOM Act would clear the way for it to be signed into law. And it is worth enacting, because it ensures that both Congress and the public will have about two months after NTIA receives the final transition plan from ICANN to review and evaluate it, as well as the accompanying claimed implementation of Work Stream 1 accountability requirements, before it can take effect. As for requiring affirmative Congressional approval of the transition, it not only faces formidable political obstacles within the DOTCOM context but is also superfluous — because Congress always has the already proven appropriations route to halt a deficient transition plan.

No matter how this goes, Senator Cruz will have the "Internet giveaway" issue for the campaign trail. So it would be best for Senate leadership to take the DOTCOM Act off Cruz control, puts the legislative pedal to the metal, and gets this bill enacted.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm – He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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CORRECTION Philip S. Corwin  –  Jul 27, 2015 7:22 PM PDT

When originally published this article stated that Senators Deb Fischer (R-NE), and Dan Sullivan (R-AK)had also placed holds on S. 1551. While those Senators did vote for Sen. Cruz's amendment in the Commerce Committee they have not placed holds on the Senate version of the DOTCOM Act. The original statement was based upon an erroneous press report and the author apologizes for any misunderstanding created by it.

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