What the GOP Takeover of the Senate Means for Tech

Sen. Mark Udall, D-Colo.

Sen. Mark Udall, D-Colo. Lauren Victoria Burke/AP

if Republicans want to win a presidential election, they'll have to show they can develop real technology policies.

The campaign is over, and now it's time to see how Republicans will actually govern with control of both chambers of Congress. Some elements of the party clearly still want to focus on battling the Obama administration at every turn.

But if Republicans want to win a presidential election, they'll have to show that they can develop real policies, too.

"Tech policy is the obvious area for the party to look for winning issues where consensus can be reached and where the GOP will actually get attention for doing so," said Berin Szoka, the president of libertarian group TechFreedom.

THE RESULTS

MARK WARNER (D-VA.) AHEAD: The big shocker of the night was how close the Virginia Senate race was. Warner, a former telecom executive and Commerce Committee member, is clinging to a slim lead of about 12,000 votes over Republican Ed Gillespie with 99 percent of the vote counted. It's likely Warner's edge will hold, but Gillespie may call a recount, as the margin is within one percent.

SEN. MARK UDALL (D-COLO.) LOSES: The leading NSA critic lost to Republican Rep. Cory Gardner, who has a background in rural telecom and media issues as a current member of the House Communications and Technology Subcommittee.

SEN. MARK PRYOR (D-ARK.) LOSES: Republican Rep. Tom Cotton soundly beat Pryor, the chairman of the Senate Commerce Subcommittee on Communications. The loss creates a key tech opening for Senate Democrats.

REP. LEE TERRY (R-NEB.) BEHIND: The chairman of the House Commerce Subcommittee on Manufacturing and Trade is trailing his Democratic opponent, Brad Ashford, by a couple percentage points, though about 15 percent of the vote is still outstanding. Ashford declared victory early Wednesday morning, but Terry has yet to concede. Terry's loss would open up a post with jurisdiction over data security and online privacy (although maybe Republicans should worry the job is cursed after Rep. Mary Bono lost in 2012).

REP. MIKE HONDA (D-CALIF.) AHEAD: Rep. Mike Honda appears to have held on to his Silicon Valley seat despite major tech donors rallying behind his Democratic rival, Ro Khanna. Though the race has yet to be called, Honda was leading by about 4 percentage points with about 85 percent of the vote counted.

JOHN BARROW (D-GA.) LOSES: Barrow, a member of the House Energy and Commerce Committee and the last white House Democrat in the deep South, lost to Republican Rick Allen. Barrow is a centrist Blue Dog who has occasionally sided with Republicans on telecom issues.

REP. FRED UPTON (R-MICH.) WINS: The chairman of the House Energy and Commerce committee sailed to victory, even after becoming a target of the tech-funded Mayday PAC for the role of big money in his campaign.

WHAT DOES IT MEAN?

TELECOM: The Republican victory is bad news for FCC Chairman Tom Wheeler, who will likely face uncomfortable oversight hearings and investigations. Republicans will try to repeal any net-neutrality rules, although it's hard to see them overriding a veto. They will probably push "process reform" legislation that they say would improve transparency and accountability at the FCC—but Democrats fear it would just hamper the FCC's authority over mergers and other issues.

House leaders and Sen. John Thune, who is set to take over the Commerce Committee, have said they want to rewrite the nation's aging communications law. Net neutrality will be a flash point in any discussion of a new Communications Act, especially if the FCC relies on its controversial Title II authority. Republicans may be willing to allow for some net-neutrality power in a new law as long as they can keep Title II away from the Internet. Thune has also said he hopes to include his "Local Choice" proposal to unbundle broadcast TV channels as part of a broader communications bill.

NSA SPYING: Republicans could try to forestall a lame-duck passage of Sen. Patrick Leahy's version of the USA Freedom Act, knowing they may be able to get a better hand—and credit—on an NSA reform package next year. But spying has become a cleavage issue within the GOP, and party leaders may be reticent to make the issue a priority in the next Congress.

With Sen. Mark Udall gone, NSA reformers lose a vocal, dedicated ally to their cause. Udall, along with Sen. Ron Wyden, has held off endorsing Leahy's version of the USA Freedom Act because of a desire to add language that would close the so-called backdoor search loophole that allows the government to "incidentally" collect Americans' Internet communications. With just Wyden, the uphill battle to close the loophole just became steeper, but the Oregon Democrat has repeatedly insisted "time is on the side of the reformers" because the Patriot Act will sunset on June 1, 2015.

CYBERSECURITY: Sen. Dianne Feinstein is still pushing her bill to help companies share cyber threat information, but it seems unlikely to get a vote during the Lame Duck session. What happens next year will depend largely on who takes over the Intelligence Committee. With the panel's ranking Republican, Saxby Chambliss, retiring, Sen. Richard Burr is next in line for the chairmanship.

Burr, who sponsored the Secure IT Act in 2012, is widely expected to take a similar approach to Chambliss on a cyber information sharing bill, the ACLU's Gabe Rottman said. Lawmakers will still have to overcome worries about private information ending up in the hands of the NSA, but President Obama may be reluctant to veto legislation that could improve cybersecurity.

PATENT REFORM: Senate Majority Leader Harry Reid took the brunt of the blame when patent legislation died in the Senate last year, and many patent wonks see the end of the his stewardship as a good thing for reform efforts. The Republican Senate could push to strengthen the Innovation Act's fee-shifting language, which was a main point of contention for trial lawyers, a Democratic constituency. Despite White House backing, patent reform remains a highly contentious issue, and though it may sail through the House again easily, the Senate is expected to remain a tough hurdle.

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