Why the Midterms -- and a Looming Supreme Court Confirmation -- Will Shake Up the Music Industry

Supreme Court building in Washington, D.C.
Ryan McGinnis/Getty Images

Supreme Court building in Washington, D.C.

After November’s midterm elections, a restructured Congress and Supreme Court are likely to transform immigration, union labor and health care -- broad issues that also would directly affect working musicians in the United States. For labels and artists alike, the most imminent political concern is the Music Modernization Act. And thanks to a recently reached handshake deal between Sens. Chris Coons (D-DE, a lead proponent) and Ron Wyden (D-OR, who previously created a roadblock after the MMA passed the House), the legislation is seemingly on a path to pass in the Senate, most likely by the end of this term.

That’s a relief for the RIAA and other advocates who have pushed the MMA for years -- especially since the next Congress is certain to look very different when it convenes in January 2019 and educating newly elected officials on the act could stall its progress. “We all believe the MMA has to pass in this congressional session,” says Daryl P. Friedman, chief industry, government and member relations officer for the Recording Academy. “We have everything lined up. It’s been years in the making.”

The MMA updates payments by allowing artists and publishers to earn royalties on recordings made before 1972 and helps songwriters and producers get paid more efficiently in the streaming era. It cruised unanimously through the House in April and passed the Senate Judiciary Committee in June, but opposition from SiriusXM and music and video services like Music Choice have recently caused delays. Still, it’s one of the rare bills with Republican and Democrat congressional support in this divided political era.

“Our issues are largely bipartisan, and we’re very lucky that way,” says Michele Ballantyne, an RIAA executive vp. “But with all the turnover that’s going to happen, we are going to be faced with a brand-new crew of incoming members in the House and the Senate. That’s going to consume a lot of our time after the elections.”

But it’s President Trump’s Supreme Court nominee, Brett Kavanaugh, who could have the biggest impact on musicians. (Kavanaugh’s confirmation hearings were completed Sept. 7, with the goal of seating him by Oct. 1, the start of the court’s new term.) Symphony and orchestra musicians, for example, rely on unions to negotiate better salaries and workplace conditions, and union leaders have criticized Kavanaugh as “anti-worker.” “He definitely favors big companies versus the small guy,” says Yona Rozen, the AFL-CIO’s associate general counsel. “The people who are doing the day-in and day-out work and small gigs and different clubs are not going to be the kinds of parties he tends to view as having rights.”

Kavanaugh’s past ruling that undocumented workers aren't guaranteed employees’ rights should worry immigrants who tour U.S. clubs. “It will be much more difficult for talented people to come to the U.S., and remain in the U.S., under a very conservative Supreme Court,” says Harvey Mars, an attorney for American Federation of Musicians’ Local 802 in New York. And while Kavanaugh’s position on health care is less clear, it’s unlikely that a Trump appointee would favor Obamacare. “For musicians who tend to be freelance, having the Affordable Care Act was key,” says John Acosta, president of the AFM’s Local 47 in Los Angeles, which represents 7,000 musicians. “The [Affordable Care Act] is being dismantled every day by the Trump administration. By the time Kavanaugh gets on the Supreme Court, it’ll be just another nail in the coffin.”

There’s no music-related litigation on the immediate horizon for SCOTUS, and Kavanaugh hasn’t made any rulings or statements that indicate his opinions on copyright or other industry-specific issues. The last big music issue to come before the court was MGM Studios vs. Grokster 12 years ago, which essentially made Napster-style file-sharing services illegal -- and the vote was unanimous. “Kavanaugh, as far as I’ve been able to find, doesn't have any definitive copyright or intellectual-property cases under his belt,” says Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, which opposed record businesses’ early-2000s lawsuits against consumers for illegal downloads. “But come back in six months -- I think a lot will happen that will be illuminating.”

Illustration by Ben Giles

This article originally appeared in the Sept. 15 issue of Billboard.