Timely Wheeler Confirmation Depends on Cruz Meeting, Observers Say

"Our office has been working on a time to meet with Mr. Wheeler,” Cruz’s spokeswoman told us. “We are hopeful that will be possible in the near future and look forward to having our questions answered.” Multiple observers have suggested Tuesday as the day of such a meeting.

Cruz has been pressing Wheeler for answers on whether Wheeler believes the FCC has the financial disclosure requirement powers that Congress would have passed in the proposed Disclose Act. That failed proposal would have required entities spending $10,000 or more during an election cycle to disclose any donors giving at least that much. Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., had attempted to confirm Wheeler and O'Rielly in a maneuver on the Senate floor on the night of Oct. 16 as the government shutdown ended (CD Oct 18 p3). Due to Cruz’s hold on Wheeler, he succeeded only in advancing O'Rielly out of committee. The Senate then entered recess and will resume Monday.

FCC acting Chairwoman Mignon Clyburn jokingly credited Cruz for retaining her leading agency position. “Thank you, Senator Cruz!” she told the crowd in her keynote talk at a Media Institute event in Washington Tuesday.

"A lot depends on that meeting,” Free Press Policy Director Matt Wood said of a potential Wheeler and Cruz discussion. “I don’t think it’s an easy landscape to navigate.” He criticized the Cruz hold as obstructionism and questioned the way Cruz has targeted the agency’s financial disclosure authority. It has such authority as part of statutes going back more than half a century, he said, saying there’s no need to sneak through any new legislation such as in the Disclose Act to make those powers so. The FCC may have to weigh the nature of those powers in a proceeding, he said. “What we're talking about here is trying to cut off a debate before it even happens,” Wood said of the Cruz hold. If the hold is not resolved at any upcoming meeting, it may last awhile, he added.

A Republican industry consultant following the confirmation process suspects the Senate Republican Conference will likely stand with Cruz on the hold, he told us, saying the issue has broader national implications. Several top Republicans signed onto Cruz’s letter to the FCC in April (http://bit.ly/1aIdDWR) decrying any FCC attempts at asserting this financial disclosure authority. Signatories included Republican Conference Chairman John Thune, R-S.D., who is also ranking member of the Senate Commerce Committee, and Vice Chairman Roy Blunt, R-Mo., as well as Senate Minority Leader Mitch McConnell. It also included Sen. John Cornyn, R-Texas, the recent boss of FCC Republican nominee O'Rielly, whose confirmation is expected to happen only with Wheeler’s.

"Presumably there is some sort of behind-the-scenes dialogue taking place,” the Republican industry consultant said. Any meeting between Cruz and Wheeler will be “critically important” and the “$64,000 question” is what answers will satisfy Cruz sufficiently for the senator to remove his hold, the consultant said. He doubts Cruz will be satisfied if Wheeler says he can’t prejudge such questions.

Cruz’s spokeswoman provided us with Wheeler’s written answers to Cruz’s questions for the record in September (CD Sept 16 p16), which Cruz deemed unsatisfactory. Wheeler had told Cruz the FCC “has the authority Congress grants it by statute and the Commission, in interpreting that authority, must respect the First Amendment,” according to Wheeler’s written answers on FCC disclosure authority. “The Commission’s authority is found in the statutes Congress has enacted, principally the Communications Act, as amended.” Wheeler described “certain disclosure responsibilities related to sponsorship identification” and “political disclosure,” part of the rules since 1934. “In determining the scope of those provisions, I will be guided by the Constitution, especially the First Amendment, Congress’ directives under the Communications Act, and legal precedent,” Wheeler said. But Wheeler has “now expressed his readiness to revisit the Senator’s questions,” a Cruz spokesman said last week.

"Good luck to Mr. Wheeler during that conversation,” said Sunlight Foundation Government Affairs Consultant Lisa Rosenberg in a blog post (http://bit.ly/166YxvI). “Senator Cruz has demonstrated his hostility toward any effort aimed at uncovering the identity of dark money donors to political campaigns. Mr. Wheeler probably knows his appointment may be delayed, if not undone, should he answer that he believes the FCC does have the authority to demand broadcasters disclose information about who is paying for political ads.” The FCC does have the power to force broadcasters to disclose purchasers of advertising, she said. The Sunlight Foundation is part of the Public Interest Public Airwaves Coalition and wants the FCC to push for more disclosures by next year’s elections, with an expansion of disclosure authority to more media markets and other providers, according to Rosenberg.

The New York Times slammed Cruz’s hold, in an editorial Wednesday. “The F.C.C. clearly has the authority to require disclosure of who pays for commercial and political speech on public airwaves under communications laws dating back to the 1930s,” it said (http://nyti.ms/1fYaidE). “Mr. Cruz knows that Congress will not repeal federal laws granting the F.C.C. power to require disclosure, so he is trying to bully Mr. Wheeler into agreeing not to exercise the agency’s authority. The fact is, neither he nor supporters of Republican candidates and conservative causes want disclosure of spending on commercials by groups like Americans for Prosperity, which is backed by the billionaire Koch brothers.” Cruz’s office did not comment on the editorial. (jhendel@warren-news.com)