As John Conyers Departs From Judiciary Committee Spot, the First Battle of the Anti-Monopoly Era Begins

Five long years ago, Zoe Lofgren was a hero. The Bay Area representative took a lonely stand against many of her Democratic colleagues, in what became known as the SOPA fight.

SOPA — the Stop Online Piracy Act — was a top priority of Hollywood and other artists and creators, aimed at stifling the free flow of content on the web. Open internet advocates pushed back against the bill in 2011 and 2012, and a coalition of big platforms, online progressive groups, and tech libertarians rallied to stop it in its tracks, with Lofgren as the lead champion in the House.

The next year, Edward Snowden laid bare the secret surveillance practices of the National Security Agency, carried out in collusion with cable companies and tech platforms, and Lofgren, a key figure on the House Judiciary Committee, once again took the lead. “Lofgren has been the House Judiciary Committee’s staunchest opponent of government surveillance during the post-Snowden era,” said David Segal, head of Demand Progress, who, along with his fellow co-founder the late Aaron Swartz, was deeply involved in the battle over SOPA.

Had Rep. John Conyers, D-Mich., then well into his 80s, retired from Congress, Lofgren would have been well-positioned to claim the top-ranking seat on the Judiciary Committee. Yet he ran for re-election. Again. And again. And again.

He stayed so long that Lofgren’s brand of Silicon Valley politics is now past its expiration date, her once virtuous alliance with the forces of progress and innovation curdling into a protection racket for increasingly unpopular monopolies.

Conyers on Sunday announced he is stepping down as the top-ranking Democrat on the Judiciary Committee, launching a battle for his successor that has pitted two Democratic rivals — Lofgren and Rep. Jerrold Nadler, D-N.Y. — against each other. On the one hand, his resignation comes in a politically fortuitous way for Lofgren, with Conyers felled not by age but by allegations of sexual harassment. The political logic of replacing him with a woman is obvious. But then there’s Google.

The race for committee chair threatens to become the first fight over monopoly politics after the rollout of House Democrats’ “Better Deal” platform for 2018, which was built on going after concentrated power, particularly in the tech sector. Elected to Congress in 1994, Lofgren represents San Jose and the Bay Area, and is far and away the most stalwart defender of big Silicon Valley firms among House Democrats.

“It certainly may raise questions to have someone from Silicon Valley in a position where one of the key responsibilities is to oversee the conduct of Silicon Valley,” said Jonathan Kanter, a prominent antitrust attorney.

As the politics of the internet has drifted from fostering freedom and openness to reining in the platforms whose monopoly power now threatens that freedom, so too has Lofgren drifted away. And for Democrats uninterested in monopoly politics, there’s Vladimir Putin, whom the party contends tilted the 2016 election while tech platforms like Facebook, Twitter, and Google’s YouTube at best looked the other way.

Lofgren has been unbowed in her allegiance. When U.S. antitrust authorities came for Google during the Obama administration, Lofgren was one of the few Democrats to publicly pressure them to back off.

When the European Commission fined Google a record $2.7 billion in June of this year, as the result of an antitrust investigation, Lofgren was the only Democrat to voice outrage. Unforced, she offered a strident defense of the company:

Europe has long lamented their inability to foster innovative businesses that can compete globally with U.S. technology companies. Now, rather than offering consumers a truly competitive marketplace with European companies rivaling their American counterparts, the European Commission is attempting to regulate innovation and competition into existence. This is unfair to European consumers, and unfair to the U.S. companies participating in European markets. The United States should now take a more assertive role in ensuring a level playing field and protecting U.S. companies against overzealous and protectionist policies overseas.

In the immediate wake of the news of Conyers’s decision, an aide to House Minority Leader Nancy Pelosi, D-Calif., told the New York Times reporter who broke the story that Nadler would take over in an acting capacity.

Nadler is next in line due to his seniority, but Lofgren, who is just behind Nadler, has been calling colleagues to gin up support to challenge him, according to Democratic members of the committee who spoke on condition of anonymity so as not to get in the middle of a fight between two colleagues. If Democrats take over the House of Representatives in the 2018 midterms, the lawmaker in the acting role would have an inside track to become full committee chair.

The committee will meet for a vote as soon as Wednesday, so Democrats have precious little time to sort things out. Nadler has effectively announced his plan to take the reins, but Lofgren wants a full caucus vote on who should get the seat. (Complicating matters is Conyers’s professed plan to return to the seat after the ethics probe into sexual assault allegations is over, a plan few Democrats want to see implemented and even fewer think is possible.)

Nadler, who was elected in 1992 and represents parts of Manhattan and Brooklyn, has not been outspoken on the issue of antitrust and Big Tech, but he has a record of approaching the industry with skepticism. He has been an ally of creators, a position that shaped his support for SOPA. “The problem of rogue websites is real, immediate, and increasing. It harms companies across the spectrum. And its scope is staggering,” he said at the time, though he never became an official sponsor. “The Stop Online Piracy Act has broad support across the aisle here in the House, across the street in the Senate and across the country.”

When the committee took up its patent reform bill, he backed amendments that were opposed by Google, while Lofgren stood on the opposite side.

As early as 2001, he introduced legislation challenging broadband operators. “This issue really hits home,” he said at the time. “It took my service provider nearly a month to simply transfer my current Internet connection from my old district office to my new one when we moved recently.  We had no e-mail or access to the Web during that entire time. I’m a Congressman, imagine what is happening to the average consumer.”

Rep. Zoe Lofgren, D-Calif., third from right, and Rep. Jerrold Nadler, D-N.Y., second from left, join with other members of the House Courts, Intellectual Property and the Internet Subcommittee in wearing 3D glasses while watching a demonstration of 3D technology on Capitol Hill on July 25, 2013 in Washington, D.C.

Members who become the leading voice of an industry are often able to direct campaign-giving from that industry. On paper, the contribution comes directly from the company’s PAC, but members know who was responsible for making sure the check arrived. In the case of Google in the House, that’s Lofgren.

In September, for instance, she held a “Taco Truck Fiesta” fundraiser at Oracle’s Capitol Hill townhouse. The memo from her campaign inviting members of Congress said that its “purpose is to raise funds for Lofgren for Congress and Mainstream PAC (Congresswoman Lofgren’s Leadership PAC) and also for Congresswoman Lofgren to bundle campaign funds for her Democratic colleagues.”

The letter included a long list of lobbyists who would be at the event — first among them was Google — and went on to boast about how much money Lofgren has raised for her colleagues:

In addition to the funds Congresswoman Lofgren has raised for her own campaign and Leadership PAC through this event, at the time of this briefing she has also bundled $291,500 for her colleagues. This quarter, Congresswoman Lofgren also contributed $75,000 to the DCCC to fulfill her dues goal for the election cycle; Congresswoman Lofgren was one of the first Members – and one of only three as of the time of this briefing — to pay their dues for the cycle in full.

That kind of fundraising ability comes with a cost. Lofgren’s defense of Google in the face of the European Union’s assault was no aberration, as she has supported the technology giant through multiple political headwinds. In 2012, amid reports that the Federal Trade Commission considered an antitrust investigation into Google, Lofgren was one of two Democrats to sign a letter to the agency, asking that the FTC back off. The letter claimed that an FTC inquiry into the firm over questions of whether it had used its dominance as the top search engine to stifle competitors in areas such as shopping and travel was out of its jurisdiction.

“Such a massive expansion of FTC jurisdiction would be unwarranted, unwise, and likely have negative implications for our nation’s economy,” Lofgren wrote, in a letter co-signed by Rep. Anna Eshoo, another California Democrat.

(After the 2014 midterms, Eshoo similarly tried to take out a higher-ranking Democrat to assume the top slot on the Energy and Commerce Committee. Despite having Pelosi’s support, Eshoo lost.)

The FTC ultimately dropped the antitrust probe into Google’s anti-competitive behavior amid furious lobbying by the search engine giant.

On issues as diverse as privacy, intellectual property, tax, and immigration, Lofgren could often be counted on as a loyal vote for Google’s priorities.

In 2009, Lofgren spoke out in favor of Google’s controversial plan to digitize millions of books from libraries without the explicit approval from copyright holders. Sometimes, her allegiance with Silicon Valley aligns her with online progressive advocates, such as Segal’s Demand Progress.

She played an integral role in the landmark 2012 SOPA fight, which pitted Google and other platforms primarily against the Motion Picture Association of America. It would have created new liability standards for search engines found responsible for posting copyrighted content, and its defeat was a major victory for open internet advocates.

Fresh off that win, she appeared, along with Rep. Luis Gutierrez, D-Ill., and Daily Kos founder Markos Moulitsas on a keynote panel on immigration reform at the 2013 Netroots Nation conference, a gathering of progressive bloggers and activists. (One of the reporters of this story moderated the panel.)

But during tax reform discussions in 2011, Lofgren proposed a special tax holiday for corporations to repatriate foreign earnings — a key priority for Google and other Silicon Valley tech firms. The Lofgren tax bill, which provided a one-time tax holiday for foreign earnings to bring the 35 percent corporate tax rate down to 5.25 percent for one year, was supported by House Republican leadership.

Like many Bay Area Democrats, she has pushed to expedite the approval and increase the number of visas for high-skilled workers, an effort that would allow more foreign engineers and other tech workers into the country and would benefit a wide array of tech firms. But Lofgren has often couched her support for expanded immigration as a direct benefit to Google, which, she argues, has been a boon to the U.S.

“I often say I am glad that Google is in Mountain View rather than Moscow,” Lofgren said, announcing her support for comprehensive immigration reform in 2013 that included provisions supporting high-skilled workers. “Immigrants from industrialist Andrew Carnegie to Google’s Sergey Brin came to our shores, and in the process, created new innovative enterprises and unparalleled prosperity for the United States,” notes a separate page on Lofgren’s congressional website.

Even Lofgren’s opposition to President Donald Trump’s executive order temporarily banning travel from seven majority-Muslim countries was framed in terms of Google’s response. “I would note that when the travel ban went into effect and people all over the country went to airports to protest, one of those who were there was the co-founder of Google, Sergey Brin,” Lofgren told reporters.

And not only has Lofgren routinely ranked among the top recipients of Google campaign cash, her congressional staffers have gone on to work for Google’s trade associations in Washington, D.C.

Erik Stallman, former counsel to Lofgren, previously lobbied on behalf of the Internet Association, a technology trade association that counts Google as a member. David Thomas, her former chief of staff, currently represents the Google-backed Information Technology Industry Council. Thomas did not respond to a comment about Lofgren’s chance to become the next ranking member on the House Judiciary Committee. “Thanks for reaching out. We have no comment on the matter,” said Jose Castaneda, a spokesperson for the ITIC.

Thomas was listed as a co-host of Lofgren’s fundraisers in March and September.

If Lofgren fails to force the issue of succession to a vote of the full caucus, it won’t be her last shot. Following the midterms elections of 2018, Democrats will once again come together to choose who will be the top Democrat on the Judiciary Committee.

It’ll be a moment for Google to find out if its money is still good in Washington.

Update: November 29, 2017

Lofgren has lost this round, as Democratic leadership named Nadler acting ranking-member in a private meeting Tuesday night, according to a Democratic source not authorized to speak publicly about the meeting. If Conyers resigns from Congress, a full caucus vote for the ranking seat will be held. On Wednesday morning, Lofgren announced her intention to run for the position at the next available opportunity.

Whenever an official vacancy at the top Democratic Judiciary Committee position may occur, I will put my credentials forward for my colleagues’ consideration. I am confident that I fully meet all the criteria for the position: pic.twitter.com/K9rYbwwHuJ

— Rep. Zoe Lofgren (@RepZoeLofgren) November 29, 2017

Top photo:Reps. Jerry Nadler, D-N.Y., Zoe Lofgren, D-Calif., and John Conyers, D-Mich., attend a news conference in Rayburn with Democratic members of the House Judiciary Committee to express opposition to House Republicans alternative Violence Against Women Act Reauthorization bill on May 8, 2012.