FROM: Unanimous Consent Senate Watch
TO: Senators Ron Wyden, Maria Cantwell, Jerry Moran, et al
SUBJECT: Will SOPA/PROTECT IP Pass In The U.S. Senate?
DATE: December 23, 2011
(1) The Stop Online Piracy Act (SOPA) and its Senate counterpart, PROTECT IP gained considerable bipartisan support in both the US House of Representatives and the US Senate.
(2) Supporters framed the legislation as protecting jobs and innovation by preventing online piracy from taking revenues from online content creators, while opponents argued that the restrictive nature of the legislation stifled innovation and creative output on the internet.
(3) PROTECT IP passed the Senate Judiciary Committee on a unanimous vote, but Senator Ron Wyden (D-OR) put a public "hold" on the legislation (he would object to all unanimous consent agreements to expedite the legislation).
(4) To overcome this, Senate Majority Leader Harry Reid introduced a 60-vote cloture motion to limit debate. Senator Reid proposed that the initial debate on the legislation take place on January 24.
(5) Senators Ron Wyden, Maria Cantwell (D-WA), and Jerry Moran (R-KS) co-sponsored the OPEN Act, which is intended as a sort of weaker compromise.
This memo addresses (a) whether PROTECT IP can pass in the Senate (b) what procedural/political options are available for opponents of SOPA/PROTECT IP in the Senate and (c) our recommendation.
Will It Pass In The Senate?
PROTECT IP has 40 bipartisan co-sponsors in the Senate, which means that it could easily clear procedural hurdles to its passage. At this point, there is considerable momentum towards passage, but opponents have effectively used the internet to direct outrage about the bill towards Capitol Hill and organize opposition. The sooner supporters move on the bill, the more likely it will pass. The later opponents can push back the bill, the less likely it will pass. The more opponents stall, the more Senators will feel uncomfortable with supporting the bill and increase their support of an amendment or compromise. While it it less likely to stop the bill outright, opponents can significantly dilute the content of the bill or substitute a compromise measure.
Opponents have the following options: count on President Obama to veto the bill, filibuster the bill, significantly amend the bill, or introduce a compromise measure.
Option 1: Count on President Obama to veto SOPA/PROTECT IP.
A. Would increase the hurdle in both houses of Congress to two-thirds.
B. Would buy opponents more time and bring more attention to the issue.
A. President Obama may not have the political capital to veto bipartisan legislation in a re-election year with divided government and a razor-sharp focus on jobs.
B. Would not resolve any of the legitimate debate over online piracy and would ensure that supporters can simply re-group and fight back at a better time.
Option 2: "Filibuster" PROTECT IP through various obstruction tactics.
A. Would create a huge uproar on the Internet and in the news.
B. Would create a sufficient delay to make a compromise or amended bill more plausible.
A. Could irritate Senators, the President, key interest groups and deprive Sen. Wyden of political capital
B. Would take energy and cooperation from multiple Senators to sustain, and would require constant attention to the Senate floor during the debate to prevent any maneuvers to expedite debate.
Option 3: Significantly amend the bill to dilute its character.
A. It would be a plausible alternative for Senators who agree with the basic premise of SOPA or PROTECT IP, but recognize the considerable public sentiment against the legislation.
B. It is less of a hurdle than engineering a vote against the bill.
A. Senate Majority Leader Harry Reid could use the priority of floor recognition accorded to the Majority Leader to "fill the tree," thereby dominating the amendment process.
B. Would not fully satisfy either side.
Option 4: Introduce a compromise measure.
A. Can be introduced during the debate on SOPA/PROTECT IP as an amendment in the nature of a substitute, in which Senator Wyden's OPEN Act or another piece of legislation could be substituted for all or part of PROTECT IP on the floor.
B. If crafted carefully, could re-frame the debate on online piracy on Capitol Hill and attract Senators in the middle, thereby directing momentum away from PROTECT IP and towards a compromise.
A. May not sufficiently please enough people on either extreme of the issue to be viable.
B. Would be difficult to get the general public/internet advocates who have made much noise about SOPA in the past to get behind any sort of compromise on online piracy.
(1) Some combination of options 2, 3, and 4 could go a long way towards weakening PROTECT IP. (2) The goal of opponents should be to seek an acceptable compromise instead of trying to destroy the bill, which is likely politically impossible.
(1) Craft and improve a viable alternative and seek to publicize and fight for this alternative through the amendment process with an amendment in the nature of a substitute described above.
(2) Use filibuster tactics to buy time to mobilize general opposition and draw attention to the issue. These tactics include: a. objecting to unanimous consent requests b. prolonged debate and speeches c. a series of amendments meant to dilute the bill or impede its progress.
Check out this OpenCongress article that backs up our point that time is on the side of the opposition:
Six GOP Co-Sponsors of PIPA Ask Reid To Cancel Vote
(3) Re-frame the issue. One of the reasons the supporters of PROTECT IP are winning is because they appear to be on the side of job-creating/economically beneficial legislation. Opponents should use this rhetoric themselves and fight back on the details.
(4) Re-frame the issue for conservatives. One of the supporters of the alternative OPEN Act, along with Senators Ron Wyden and Maria Cantwell, is Tea Party Senator Jerry Moran. Tea Party Senators often work together to fight against bills that they see as unnecessary government intrusion. In addition, the Heritage Foundation opposes the bills on the same grounds. Enough conservative Senators could make PROTECT IP much harder to pass if the issue is framed in those terms.
(5) Work hard to mobilize the internet-surfing public, especially young people, behind an eventual resolution. It is crucial that compromise and a diluted bill can be made acceptable to this crowd, and that is it clear that general opposition to PROTECT IP will go nowhere.