O'Rielly Reconfirmation Likely, Despite Timeline Uncertainties

The Senate Commerce Committee's plans for handling O’Rielly’s renomination depend greatly on “when we’re here” on Capitol Hill to go through the normal confirmations process, said Chairman Roger Wicker, R-Miss., in an interview as the chamber recessed last month. He wasn’t sure when that would happen. The Senate returns April 20; leaders could extend the recess if they believe it’s still unsafe.

“If we’re here, we might as well do some work” on Senate Commerce’s agenda, Wicker said. The committee scheduled its first “paper hearing” in response to the pandemic, a Thursday panel on recent uses of consumer data to identify potential outbreak hotspots and related privacy implications. The committee said it developed the paper hearings process to help “continue investigative and oversight responsibilities” amid the epidemic. It will involve members sending witnesses written questions by the close of business the day of the hearing. Witnesses would be required to submit responses within 96 business hours.

Lobbyists are unsure whether the "paper hearing" process would workfor evaluating executive branch nominees. Interactive Advertising Bureau Executive Vice President-Public Policy Dave Grimaldi and Center for Democracy and Technology Privacy and Data Project Director Michelle Richardson are set to testify at the Thursday panel. It begins at 10 a.m.

Senate Commerce ranking member Maria Cantwell, D-Wash., told us before the chamber recessed she’s going to insist the committee hold a formal hearing on O’Rielly’s renomination. “Who knows” when that will happen given uncertainties about the Senate’s schedule, she said. Cantwell needs to “dive in on” O’Rielly’s record before she decides whether to support him. The Senate confirmed O’Rielly to his first full term in 2014 on a hotline vote and without a Senate Commerce hearing (see 1412170031). That’s unusual, but O'Rielly had worked on the Hill and has many supporters there, lobbyists said.

Popularity

Reconfirmation “is not at the top of my priority list," O’Rielly told reporters last week, responding to our question. “I really haven’t thought about it. I appreciate that [Trump] and the administration officials made a decision.” The Senate appears to be setting aside many nominations “as the leaders of our nation take care of the important work,” he said. “There’s plenty of time” and “it will work out as intended by the Lord almighty.”

O’Rielly has support from some Democrats, despite being a traditional FCC conservative, lobbyists said. He has support from some progressives because he played a key role inside the commission as an advocate for unlicensed use of the 3.5, 4.9 and 6 GHz bands.

Lobbyists noted Democrats have trained much of their ire in recent years instead on Chairman Ajit Pai. Free Press “doesn’t agree with [O’Rielly] very often, but right now we’re not opposing” his reconfirmation, said Vice President-Policy Matt Wood. He noted that’s due in part to shifting priorities amid the pandemic.

“O'Reilly is a very popular and noncontroversial candidate,” said Public Knowledge Senior Vice President Harold Feld. “Who knows what happens these days?” he said: “We don't even know if the Senate is going to authorize rules for virtual participation or not. Maybe this is all settled by May. Or maybe we are still hip-deep in crisis in September.”

O’Rielly is “well-liked on both sides of the aisle and has great expertise,” said Brent Skorup of the Mercatus Center. “Especially now when the FCC’s work, like spectrum auctions and pandemic response, is fairly apolitical, a potential lapse would needlessly crimp the agency.”

The FCC would be split 2-2 if O'Rielly vacates his seat.

'Calendar' Questions

The tight legislative calendar complicates O'Rielly's path, officials said. Lawmakers are expected to have limited time left on the Hill before the November elections.

“Who knows how much the Senate is actually going to be in session,” asked Phoenix Center President Lawrence Spiwak. “You’re really in a race against the calendar.” He said any cabinet secretaries and other high-level nominations will probably be first in line, followed by judges. Nominations for posts that will continue into the next administration, like O’Rielly’s, are next in the pecking order, he said.

“It would be terrible if the Senate cannot find the time to vote on someone who is obviously an outstanding commissioner,” said Mark Jamison, a University of Florida professor who helped the Trump administration organize the current FCC.

“We face the trifecta of an unprecedented health crisis, an unprecedented economic situation" and an election that all "make the future pretty murky to me,” said New Street’s Blair Levin. O’Rielly “knows the Senate well and may well be able to thread the needle,” Levin said.

“The likelihood is that the Senate will find time” to address widely supported “housekeeping tasks” like O’Rielly’s reconfirmation before he’s forced to leave the FCC, said Institute for Policy Innovation President Tom Giovanetti: “He is quite popular” in the Senate.

“O'Rielly is liked and has many allies,” said Fletcher Heald’s Francisco Montero. Broadcasters refer to O'Rielly as “the new [version of former interim FCC Chairman James] Quello,” Montero said. Quello, Democrat known for expertise on media issues, served 23 years on the FCC. “All else being equal,” the nomination would move quickly, as it did last time, he said “But all things aren't equal." The COVID-19 "crisis will distract from and delay anything that doesn't address the crisis," Montero said. "The looming presidential election presents many traps to hold this nomination hostage.”

Senate Democrats will likely insist O’Rielly’s reconfirmation be paired with a suitable Democratic nominee to another role, as is usually the case, lobbyists said. They noted there’s no natural nominee pairing currently because no Democratic seats on the FCC and FTC are expected to require renomination soon. FCC Commissioner Jessica Rosenworcel's current term expires June 30, but she can retain her seat through the beginning of 2022.

Democrats may choose to hedge their bets and hold up O’Rielly’s reconfirmation process until after the November election, in case the party’s presidential nominee prevails over Trump, lobbyists said. Senate Republicans may oppose confirming a new Democratic commissioner in such a scenario to prevent a Democratic FCC majority, so Democrats have no incentive to allow O’Rielly to remain on the commission and risk a 2-2 deadlock, some lobbyists said.