Senate Commerce Republicans Undecided on Boycotting Future Sohn Vote

Democratic FCC nominee Gigi Sohn’s recent answers to Senate Commerce Committee members’ follow-up questions from a Feb. 9 confirmation hearing (see 2201280066) are unlikely to dissuade ranking member Roger Wicker of Mississippi and other panel Republicans from pursuing a boycott of a future committee vote to advance her confirmation process, Senate aides and lobbyists told us. In responses released Tuesday, Sohn sought to counter GOP claims she wasn't sufficiently candid about whether she played a role as a board member for Locast operator Sports Fans Coalition (SFC) in securing a revised $700,000 settlement of broadcasters’ lawsuit against the shuttered rebroadcaster (see 2202220066).

Wicker and other top Commerce Republicans in interviews last week left open the possibility they will pursue a boycott of future committee votes on Sohn. Some Republican senators said they would decide how to proceed based in part on Sohn’s responses to their follow-up questions. Republican members of other Senate committees have boycotted meetings in recent weeks when controversial Biden administration nominees were on the docket. All Banking Committee GOP members didn’t show up for a meeting last week on a raft of Federal Reserve nominees, denying the panel a quorum to advance them to the full Senate. The chamber’s 50-50 tie means at least one GOP member of a committee must show up at a meeting to achieve a quorum.

“A number of questions were raised” about Sohn’s testimony during the Feb. 9 hearing “and we don’t have all” of the nominee’s responses to Senate Commerce members’ follow-up questions, Wicker told us. “So let me withhold further comment until we get all of our answers in.” Wicker and his staff secured the second Sohn hearing by threatening an all-GOP boycott of Commerce’s Feb. 2 executive session absent her appearance before the committee (see 2202020069). Wicker’s questions focused on the Locast settlement and Sohn’s January commitment to temporarily recuse herself from some FCC proceedings involving retransmission consent and broadcast copyright matters (see 2201270073). His office didn’t comment on Sohn’s responses.

“We’re all assessing the outcome” of the Feb. 9 hearing and related follow-up questions, said Sen. Dan Sullivan, R-Alaska. “I haven’t contemplated” pursuing a boycott “yet, but obviously that would be in consultation with the other” committee Republicans. “I think the hearing raised more questions than it provided answers,” particularly about the disparity between the $32 million Locast settlement figure publicly disclosed in October and the final $700,000 figure included in confidential settlement documents, Sullivan said. “If you’re purposely trying to hide the truth from the Senate in its oversight responsibility, that’s a disqualification that I think a lot of Democratic senators would agree with” too.

“I just don’t know yet” whether Republicans will pursue another boycott threat, said Senate Communications Subcommittee ranking member John Thune, R-S.D. “I’ll have to consult with” Wicker and see what he “wants to do, but my assumption is that whatever” the ranking member “wants to do,” most Republicans on Senate Commerce “will work with him” to pursue it. “I wouldn’t take any tactic off the table” at this point, said Sen. Shelley Moore Capito, R-W.Va., but “generally speaking, if we’re elected to serve on committees, we” should show up to vote.

Democrats 'Keep Going'

“We’re going to keep going” forward on Sohn with the assumption that Senate Commerce will hold a vote on advancing her nomination to the full chamber once Communications Chairman Ben Ray Lujan, D-N.M., finishes his recovery from a stroke, said committee Chair Maria Cantwell, D-Wash. “You’ll have to ask” Wicker and other panel Republicans whether they want to show up for such a vote. “I don’t know what everybody’s motivation is” on the Republican side of the aisle in criticizing Sohn, Cantwell earlier told reporters. “Some people wanted to ask [Sohn] about the actual” terms of the Locast agreement and her recusals, and “some people didn’t.”

“I hope [Commerce Republicans] will do their jobs and show up for work,” said Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn. “If they don’t, it will be truly unfortunate, because they’re failing to do their job. They were elected to cast votes and go to committee meetings,” so boycotting meetings means “they’re failing to uphold their responsibilities” to the electorate. Sen. Jon Tester, D-Mont., who’s also a member of Senate Banking, noted his frustration with that panel’s Republican boycott and hopes his Commerce colleagues don’t do the same.

Senate Commerce “has had its battles” in the past, “but it’s never gotten quite as partisan as” the Judiciary Committee and others, so “it would be an unfortunate turn of events” if panel Republicans attempt the same kind of boycotts that occurred in other committees, said Sen. Brian Schatz, D-Hawaii: “I hope [Wicker and Thune] think better of it.”

Several Senate GOP aides said there hasn’t been a decision on a Sohn boycott, but the tenor of Commerce Republicans’ follow-up questions show they continue to believe Sohn hasn’t fully addressed their concerns. A final call is likely weeks away since Lujan isn’t expected to return to the Senate until at least mid-March, Senate aides and lobbyists said. Lujan said in a video earlier this month he expects to return to the chamber “in just a few short weeks."

'Hardball' Politics

Senate GOP boycotts or even the threat of a boycott “can really gum up the works” but is effective only when the chamber is split 50-50 as it is now, said George Washington University political science professor Sarah Binder. “This is a version of just plain hardball” politics by Republicans that the Democrats have been unable to sidestep. “There isn’t really any workaround for the Democrats" given it’s unlikely all 50 caucus members will be able to agree on changes to the Senate rules requiring a majority of committee members to be present at votes on nominations to achieve a quorum, even if it were to affect the prospects for confirming a nominee to succeed retiring Supreme Court Justice Stephen Breyer, said Binder, also a senior fellow at Brookings Institution.

There’s also continued uncertainty about whether Sen. Kyrsten Sinema of Arizona will join the other 13 Senate Commerce Democrats in backing Sohn. Sinema hasn't publicly declared a position, though Cantwell believes the senator now backs the nominee. All 14 Democrats would need to back Sohn to keep floor consideration viable, since all 14 Republicans are likely to oppose her. Wicker pressed Sohn on Fight for the Future’s Phoenix billboard claiming Sinema is corrupt because of her perceived opposition to bringing back the FCC’s 2015 net neutrality rules. “I do not believe that Senator Sinema is corrupt and no, I did not agree with Fight for the Future’s tactics in this instance,” Sohn said.

Sinema asked Sohn about her revised recusals, including why the nominee believes “additional recusals are not warranted for other industries” and whether they would “negatively impact” the FCC’s “ability to regulate” the broadcast sector. “Those who are seeking such recusals are effectively saying that I should be recused from everything and anything I’ve ever advocated for or against,” Sohn said. “The result would be an FCC populated by members with no background in communications law and policy.” Sinema’s office didn’t comment.

Wicker “should uphold his end of the bargain” and not pursue a boycott of a Sohn vote, since Senate Commerce leaders agreed to a second hearing specifically because Republicans wanted more clarity on Sohn’s Locast settlement role and the recusals, said Public Knowledge Government Affairs Director Greg Guice: Sohn “really tried to be honest and frank in her responses” to the additional follow-up questions and “clear up the record” since Wicker and other Republicans appeared to be basing their concerns on “a lot of bad information.” It’s now time for Commerce Republicans to “move forward and do their jobs,” Guice said.

Commerce Republicans clearly sense there’s “blood in the water” on the Sohn nomination, but it’s still unclear if they will follow through with a vote boycott to stop her, said Shane Tews, American Enterprise Institute visiting fellow: Their decision will depend on how the state of play looks once Lujan returns to the Senate. “It’s an election year and keeping” the FCC’s current 2-2 stalemate “seems to be working” to ensure bipartisan compromise on telecom policy, Tews said: Republicans are convinced that adding Sohn to the commission now will result in more “contentious” proceedings, so what the nominee says in response to their concerns is unlikely to shift them away from opposing her confirmation.