Of interest for folks following the fracas over the leadership of the U.S. Copyright Office, a new bill, the Legislative Branch Agencies Clarification Act, quietly dropped last week. It was introduced by Rep. Morgan Griffith, a Republican member of the House Administrative Committee, and is out for consideration to Judiciary and Oversight. I don’t know any inside baseball about the bill or its likelihood of going anywhere. But it’s worth some attention given the undeniable political and legal pressure to resolve the thorny separation of powers issues created by the USCO’s situation in the Library of Congress, which are now sitting before SCOTUS in Blanche v. Perlmutter.
A caveat: this post is just a quick summary of this specific bill’s mechanics. I’ll have much more to say in a longer form about the broader political and legal drama, the policy ramifications, and whether any of this is a good idea. The abstract of Separation of Copyright Powers (draft in progress) gives a directional notion of my thinking as of a few weeks ago. But things, as they say, are in motion.
Shoring up “of Congress” in the Library of Congress
In short: the bill is pretty blunt. On the one hand, it would cut the President out of the loop of the hiring and firing of the Librarian. It would shift the hiring power to House and Senate leadership1 and also explicitly leave them the power to remove the Librarian by majority vote.2 That would mean that future replays of President Trump’s firing and attempted replacement of Dr. Carla Hayden as the previous Librarian would be off the table, as would his role in appointing a new Librarian to replace Dr. Hayden (if the bill were to pass first).
The Copyright Office of… ?
On the other hand, the bill would seemingly sever the Library’s (and Librarian’s) many oversight responsibilities over the Copyright Office (and the Register of Copyrights) and leave the USCO and the Register directly in charge of the Office’s delegated functions. Though I haven’t done a deep dive to cross-check all the amendments, spot checks of the obvious ones that occur to me offhand, such as the Librarian’s nominal oversight of the Section 1201 triennial review, are covered.
So, where would the USCO go? As far as I can tell, the bill doesn’t rehome the USCO into the Department of Commerce3 or other variations that people have posited over the years. Rather, it just leaves the USCO as a standalone Office in the executive branch led by the Register and (implicitly) overseen by the President. The President (instead of the Librarian), would appoint the Register, with Senate confirmation, to a ten-year term, with unlimited five-year renewals.4
Separation of Powers Implications
As a formal matter, the bill likely would moot at least some of the big-picture separation of powers issues at play in Blanche v. Perlmutter. Situating all the USCO’s functions under executive control would obviate the tricky constitutional questions about how to assess their “legislative” or “executive” character now sitting before SCOTUS.
On the other hand, the bill could leave some unexpected administrative law and constitutional land mines in its wake, especially given the long tail of case law that presumes the USCO is situated in the Library. One immediate issue is the focus in Perlmutter on the obscure-but-important Federal Vacancies Reform Act, which allows the President to bypass Senate confirmation to appoint acting agency heads under certain circumstances.
The fight in Perlmutter has been about whether the Library of Congress is subject to the FVRA. This bill, as far as I can tell, would prompt a new fight about whether the Copyright Office is subject to the FVRA. The bill’s new language about an acting Register doesn’t really clarify this,5 and I’m a little surprised given the prominence of the FVRA question in Perlmutter that the bill doesn’t clarify the USCO’s FVRA status one way or another. (I’m not an FVRA expert by a long shot and would welcome views about which way FVRA would be likely to cut in this new configuration.)
That is all to say: if it passed, the bill seemingly would give the President the authority to fire the Register.6 But it’s not clear to me whether the bill contemplates the President being able to appoint an acting Register directly or rather means to require the President to seek Senate confirmation for a new non-acting Register while an acting Register rises from the ranks of existing USCO staff according to some unspecified procedure.
More generally, the bill would still leave open the possibility of other separation-of-powers issues around the re-situated USCO and the Library. For example, the bill doesn’t really address the practical implications about the physical location of the USCO (which resides in the Library of Congress complex right across the street from, well, Congress). If the executive branch were to try and move the USCO elsewhere (or Congress or the Library acted to reclaim the USCO’s space), it might pose some logistical challenges for the agencies’ joint approach to deposit copies of copyrighted works for the Library’s collection. The bill would leave the mechanics of the deposit process largely intact.7 (I’m not an expert on deposit issues and welcome feedback on the likely on-the-ground implications here.) The bill also wouldn’t necessary resolve all the separation of powers problems with the quasi-judicial functions of the Copyright Claims Board, better known as the copyright “small claims” court, or the Copyright Royalty Board.
The bill also wouldn’t foreclose future political attacks on the Library of Congress’ remaining non-copyright functions, such as the Congressional Research Service or the Library’s collection. The White House’s proffered (and awful) reason for firing Dr. Hayden as the previous Librarian was at least nominally focused on the Library’s collection. The bill would remove the President’s legal basis for going after the Library or the Librarian in the future, but as some scholars say, separation of powers doesn’t necessarily mean much in the absence of separation of parties.
Again, this is all just a quick review of the bill’s mechanics, and shouldn’t be taken as a normative view one way or another about its potentially significant consequences. Among other things, shifting the supervision of the USCO from the Librarian to the President would raise a whole host of complicated policy/political/historical/institutional/cultural questions for the Copyright Office’s functions and its role in setting copyright law and policy. These are issues that I’m thinking hard about, so watch this space for more.
- The leadership includes the Speaker and minority leader of the House and the majority and minority leaders of the Senate, and one can imagine the voting scenarios that would emerge under various political configurations. The bill would have the leadership select the Librarian from three candidates for Librarian recommended by the chairs and ranking minority members of the House and Senate Admin Committees.
The bill would also impose what seems like a similar structure on the Government Printing Office, though I don’t know enough about GPO to comment on the significance of those changes. ↩︎ - Though the firing of the Librarian hasn’t been directly disputed in the Perlmutter litigation, the current legislation governing the Librarian’s appointment doesn’t address removal specifically, except through a renewable term limit. The bill would also specifically address the role of the Deputy Librarian and their ability to serve as acting Librarian. While there have been references in Perlmutter to Library regulations as the basis for Deputy Librarian Robert Newlen to step into the acting Librarian role, it’s not been entirely clear to me what those regulations are. (I don’t see anything relevant in the LOC’s section of the CFR, for example.) ↩︎
- As evidence for this point, the bill explicitly maintains the Register’s consultation with the head of the NTIA during the triennial review. ↩︎
- Another weird wrinkle: the bill would precede the President’s appointment and Senate consent with a joint (but non-binding) recommendation by the chairs and minority leaders of the House and Senate Judiciary Committees of three candidates for Register. ↩︎
- In particular, the bill would add new language to 17 U.S.C. § 701, which doesn’t currently mention an “acting Register.” But the bill’s reference to an acting Register is oblique, specifying the appointment of subordinate officers by an acting Register, and doesn’t seemingly specifiy anything about how an acting Register comes into the position. Tangentially, this remains an important question for the period before the D.C. Circuit weighed in Perlmutter where there was seemingly no Register of Copyrights and what that means for the validity of the registrations that were issued during that period. ↩︎
- With thanks to Justin Hughes for the flag, I’ve revised this sentence to avoid implying that the mere introduction of this bill suggests that the President currently has the authority to fire the Register under the existing statute, which of course is at the heart of the dispute in Perlmutter. ↩︎
- The bill would give the Register the lead on destroying or otherwise disposing of books that the Library doesn’t select for its collections, a responsibility that is currently up to the “joint discretion” of the Register and Librarian. ↩︎