When two of the biggest conservative stars in Congress disagree on something, it’s generally a sign that at least one of two things is happening: Either some great principle is at stake, or some fact has been misunderstood by one party.
As it happens, when it comes to the disagreement between Ted Cruz and Mike Lee over the idea of patent reform, both are true.
On the surface, it’s hardly obvious why the two should differ, with Lee supporting patent reform, and Cruz opposing it.
Both are hardline constitutionalists with cast-iron pedigrees as former clerks for conservative Supreme Court justices (the late William Rehnquist in Cruz’s case, Samuel Alito in Lee’s case). Both have made a point of standing up against sweeping pieces of legislation such as Obamacare or Dodd-Frank (to which patent reform has been — incorrectly — compared). Both even argue in favor of a more populist, aspirational conservative message (what Cruz calls “opportunity conservatism”).
So why the difference over this subject, in particular? The prosaic political explanations are there, of course: For instance, Lee has been trying to cultivate an aura of independence, and is therefore generally more willing to buck agenda-setting groups like the American Conservative Union (which is so against patent reform that it’s going to use it in its scorecard), whereas Cruz relies on them for much of his support. Moreover, Utah (Lee’s home state) is an emerging hub of the patent-skeptical tech industry, while Texas (Cruz’s home state) is home to the infamously pro-patent troll East Texas District Court. From a cynical perspective, therefore, one could argue that both men are simply looking out for their constituents.
However, a look at their public statements on the subject reveals a clue to something that may go deeper. Here’s Lee back in 2013 on the unveiling of the Patent Transparency and Improvements Act:
“Congress has a constitutional responsibility to ensure that our system of intellectual property ‘promote[s] the progress of science and the useful arts.’ Our patent system must protect legitimate property rights and encourage innovation,” Lee said. “Recently, we have seen increased abuse of the patent system in a way that actually discourages innovation and growth of the economy. This legislation, together with other proposals introduced by members of the Judiciary Committee, will restore the proper balance to the patent system.”
Meanwhile, here’s Cruz explaining his vote against the PATENT Act (the Senate’s current incarnation of patent reform):
“I think we need to be particularly solicitous of protecting inventors, protecting the little guy, protecting those who are asserting their rights protected by the United States Constitution to develop new innovations, and I fear that if we lean too far against the small patent holder that in turn will hamper innovation in our economy.”
The interesting thing about Cruz and Lee’s statements is that on the surface, they entirely agree with each other on one point: That stopping invention and innovation is bad, and that anything that hampers inventors or innovators ought to be opposed. The question at contention, then, is from whom each legislator is trying to protect these hypothetical innovators.
In Lee’s case, the answer is obvious: The trial bar and its incestuous relationship with patent trolls. In Cruz’s case, it’s not so obvious, at least if you look at his own statements. But a look at the statements of those who agree with him is more revealing. For instance, here’s former Ohio GOP Chairman Ken Blackwell on patent reform efforts:
I have consistently warned of the dangers of these bills: The troublesome crony capitalism at work and strings being pulled behind the scenes by companies like Google; the dangers of moving bills forward that compromise intellectual property and put America’s policies in line with those of countries like China; the problems innovators — everyone from your local inventor to medical research programs at universities — will have securing funding and maintaining sound ownership of their inventions.
And here’s Presidential candidate Carly Fiorina, making a similar point:
Watch carefully who is supporting that legislation. It’s not the small it’s the big. It’s the big companies whose ongoing economic benefit depends upon their ability to acquire innovations and patents at a lower cost.
In other words, you could argue that the question that Lee and Cruz are really debating is who is more likely to prey on small businesses — patent trolls, or Google? Except the answer to that question is obvious: it’s patent trolls. And if you doubt that, ask the opponents of patent reform to produce a single local inventor who’d actually be hurt by the bills. Once you exclude universities — who don’t actually invent anything, but instead pad their Presidents’ salaries by selling their patents to trolls — none is forthcoming. In contrast, supporters of patent reform can point to numerous small businesses who are being harmed by trolls right now.
The difference, then, may lie in something more fundamental, and it is this: we may be witnessing a debate between a very 20th-century era idea of what a patent is on Cruz’s side, versus a forward-thinking 21st-century vision from Lee. One sees this in the constant references among reform opponents to the little guy “tinkering in his garage,” when the fact is that most innovators today are sitting at their laptops, rather than tinkering in their garages. In fact, Google itself was built by two “little guys” coding on their laptops, and the same goes for Facebook, or any of the other bogeymen that reform opponents bring up. These innovators — the ones that actually exist — are who reform supporters are trying to protect.
But this doesn’t fit the mental image of “innovation” that most Americans have, which is something more akin to the Wright Brothers building the airplane than to the Winklevoss twins sponsoring Bitcoin. The 20th century affection for manufacturing and building things still runs deep among the GOP base — witness Donald Trump’s success claiming he’ll bring manufacturing jobs back to the states — and to someone with that 20th century idea of economic success, the disruptive nature of the tech industry and its intangible products probably look more like freeloading by uppity nerds than like any sort of actual invention. Cruz, who is competing with Trump for the same pool of voters, has to appear sympathetic to these concerns, despite the fact that his own state is rapidly beginning to compete with Utah and Silicon Valley in the tech world.
In other words, the unfortunate fact is that it for many Republicans, it simply may not be safe to be seen as pro-tech, despite the fact that doing so arguably handed them the 2014 election. For the sake of the party going forward, one hopes that this irrational aversion to the people who are now the primary drivers of the American economy, both at the small business and big business level, will soon be put to rest by the realities of the situation.
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