Effort to Nullify Net Neutrality Rules May Have Mostly Political Value
The benefit of consideration of a Congressional Review Act resolution to nullify the FCC’s net neutrality order may be to rally opposition and send a broader signal to the commission, said a former congressional committee counsel. Incoming House Commerce Committee Chairman Fred Upton, R-Mich., and Senate Commerce Committee Ranking Member Kay Bailey Hutchison, R-Texas, said last week they may attempt to rebuke the FCC by introducing resolutions of disapproval under the Act (CD Dec 22 p5). The procedure has advantages over other lines of attack, but the likelihood of a presidential veto makes it a difficult road, current and former Hill aides said in interviews.
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Advantages of the CRA process include that it’s filibuster-proof in the Senate, and it requires only a simple majority in each house to pass a joint resolution of disapproval. The alternative options to repealing a rule -- enacting a law or disallowing funds for a rule’s purpose in an appropriations bill -- must go through the regular legislative process. In the Senate, motions to consider joint resolutions can’t be amended and aren’t subject to motions to postpone or to proceed to other business. The Act limits Senate debate on the resolution to 10 hours and doesn’t allow Senate motions to reconsider the vote on the joint resolution. The law requires a resolution to go through the relevant committee in each house, but requires only 30 Senate votes to discharge the resolution from its committee. And if one house approves the resolution, it skips the committee in the other.
A likely presidential veto may be the biggest roadblock to nullifying the FCC order under the Congressional Review Act. President Barack Obama supports the FCC order, calling it “an important component of our overall strategy to advance American innovation, economic growth, and job creation.” If Obama vetoes the joint resolution, supporters would need a two-thirds majority in each house to override him.
The Hill effort may be about more than trying to reverse the rule, said lawyer Tom Cohen of Kelley Drye, senior counsel on the Senate Commerce Committee 1981-1990. Other reasons to file the resolution may be to build opposition to the order and send the FCC chairman a message that Hill oversight will intensify, he said. “In this long war of net neutrality, it’s another battle,” Cohen said. “Even if the opponents don’t overturn the rule, they will make a very public case for why it’s bad and will help the opposition coalesce and potentially grow.” The president may not sign the resolution, but the effort can be viewed as a success for Republicans if they win a significant number of Democrats to their side, Cohen said. Building a majority of Congress, including Democrats, sends a strong warning that Capitol Hill will hold the FCC accountable on net neutrality and other issues, he said.
Disapproval under the Review Act has been used successfully only once, in 2001 to repeal Clinton-era ergonomics rules. Congress passed the joint resolution and President George W. Bush didn’t veto it. The procedure was also invoked, unsuccessfully, in an effort to revoke media ownership rules in 2003 and again in 2008. The Senate approved the resolutions, but the House never brought them to the floor. They failed because the Act doesn’t hold the House to the same expedited process as the Senate, said Howard Waltzman, a Mayer Brown lawyer who was chief telecom counsel of the House Commerce Committee 2003-2006, when the GOP was in charge. That shouldn’t be as big a problem this time, because Republicans will control the House and will support repeal, Waltzman said.
Republicans will need to be very careful when filing a resolution of disapproval, since the Act has precise requirements, cautioned a senior House GOP aide. Those complexities are one reason that the procedure hasn’t been used much in the past, said the aide. “It’s not like an appropriations bill where you say ‘no funds may be used by the FCC to issue a net neutrality order,'” the ex-aide said. The likelihood of a presidential veto makes successful passage of the resolution even more difficult, the ex-aide said.
The Act’s differentiation between rules and “major rules” may become an issue as the effort moves forward, but ultimately it shouldn’t kill the disapproval effort, said Waltzman. The difference is that a “major rule” may not take effect until 60 days after publication in the Federal Register. Other rules take effect immediately after submission to Congress. But Congress can still disapprove either kind within the 60 days. The Act specifies that the “major rule” term “does not include any rule promulgated under the Telecommunications Act of 1996 and the amendments made by that Act.” But most of the FCC’s net neutrality rules cite the 1934 Communications Act for legal authority, so the order can be considered a “major rule,” said Andy Schwartzman, director of the Media Access Project.
Key voices in the net neutrality debate wouldn’t say whether they'll lobby lawmakers on the expected resolutions of disapproval. Verizon is watching the congressional review process and keeping its options open, a spokesman said. A USTelecom spokeswoman said, “It would not be appropriate for us to comment on any future activities until we have actually read the text of the FCC order.” A Public Knowledge spokesman said the group won’t comment until it has had time to discuss any resolution.