Senate's Sohn Drama May Not Be Prelude to Future FCC Confirmation Fights

Carr and Starks have terms that will expire before the next presidential administration begins Jan. 20, 2025. Starks’ term ends June 30 and he will have to leave the commission no later than Jan. 3, 2024, absent reconfirmation. Carr’s term ends June 30, 2023, and he will have to leave the FCC by Jan. 3, 2025, absent reconfirmation. The Biden administration isn’t prioritizing a decision on renominating either commissioner since it’s still trying to push through Senate approval of Sohn, who’s facing unified GOP opposition and chatter about some Democrats’ misgivings, in the 50-50 chamber (see 2204050064), lobbyists said. The White House, Carr and Starks didn’t comment.

“We should all work together” to advance quality FCC nominees rather than get embroiled in partisan bickering about picks like Sohn who have expertise on communications policy issues, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “We all understand more and more what’s at stake” in commission decisions. Commissioners are becoming “more and more knowledgeable” about those issues and have “domain expertise” that sometimes concerns some stakeholders “if they think it’s going to be effective,” she told us: “We have lots of former” FCC and Capitol Hill “staffers who move through to go to provide that expertise and I think that’s important.” Sohn “proved” as an aide to now-former FCC Chairman Tom Wheeler that “she could work in that environment and do really good work.”

The chances of partisan infighting over future FCC contenders will in large part “depend on who” President Joe Biden nominates, particularly for the seats of Carr and Starks, said Senate Minority Whip John Thune, R-S.D. “Whether any future nominee is supported is going to be predicated on who that person is and what they’re bringing to the job.” Sohn faced “serious problems” during Senate Commerce’s evaluation of her nomination and “she didn’t receive a single Republican vote” during the committee’s March 3 meeting, resulting in a 14-14 tie (see 2203030070), said Thune, who’s also Senate Communications Subcommittee ranking member: “Future nominees will have a better chance of success if they’re more mainstream in their views.”

“It really depends on the nominee,” said Sen. Shelley Moore Capito, R-W.Va. “Instead of having such pendulums of far-left and far-right kinds of nominees, there are people who lean” in one political direction who would still be “very much bipartisan. You just have to look at their records and I think that’s what you’re seeing” as senators evaluate Sohn.

Polarization Concerns

Senate Commerce ranking member Roger Wicker, R-Miss., and some other committee members think increasingly partisan FCC nomination fights are likely but not a foregone conclusion. “I wouldn’t be surprised” if there’s a clear divide on future nominees, particularly if “internet regulation” in the form of a return to some form of the FCC’s 2015 net neutrality rules becomes a commission priority once Rosenworcel gets a 3-2 Democratic majority, Wicker said: It could be less of an issue if the White House nominates Carr and Starks, or other Republican and Democratic picks for their seats, in tandem “since the balance would not change” on the commission.

Partisan fights over nominees “have become much more common” overall in recent years, but may still not be “the rule,” said Senate Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn.: “I think that” the November midterm elections “may break this fever, but there’s nothing on the horizon that indicates there’s an end to it” entirely.

“I don’t know why” Senate confirmations for FCC nominees have become more partisan over the last four-plus years, but it does appear to be an issue, said Sen. Brian Schatz, D-Hawaii. FTC nominees largely managed to avoid partisan fights until Senate Commerce twice tied 14-14 on current Democratic commission nominee Alvaro Bedoya, but “for some reason” FCC nominations have become increasingly “polarized along party lines, and that’s unfortunate for the country.” Senate Majority Leader Chuck Schumer, D-N.Y., filed cloture on Bedoya earlier this month after the chamber voted 51-50 to discharge the nominee from Commerce’s jurisdiction, potentially setting up additional votes once the Senate returns from recess April 25 (see 2204070057).

Contentious Senate fights over FCC nominees “will continue to be the story until we get our government and our democracy back on track,” emailed former FCC Commissioner Michael Copps: “The loyal opposition? Give me a break.”

The worst precedent the Senate is creating in its handling of Sohn is that both sides will feel empowered “to try and throw wrenches into the confirmation process on the theory that a 2-2 split of the FCC, or FTC for that matter, is OK,” said TechFreedom General Counsel Jim Dunstan. “There's a hefty backlog of proceedings that need attention that can't get done because they need three votes to move forward, and you can't get that with a 2-2 FCC,” he said.

“A 50-50 Senate makes it extremely difficult to confirm nominees who are perceived to be too controversial and too ideological,” said Cooley’s Robert McDowell. The midterm elections “will likely change that dynamic one way or the other by providing one of the parties a clear majority.” If Republicans “control the Senate” in January, “the White House will have to find a way to nominate candidates who can be confirmed, or else some Senate-confirmed positions will remain unfilled.”

'Uniquely Volatile'

“It’s hard to predict what’s going to happen going forward,” said Free Press General Counsel Matt Wood. “Right now, we have a uniquely volatile but stalemated situation with the 50-50 Senate. I don’t know what the world will look like after” the November election, but “I wouldn’t read too much into” the Sohn fracas. “It’s not that there’s no trend” to see in that situation, but it and the Simington confirmation fight are both “pretty unique,” Wood said: Republicans “hit the gas” on advancing Simington after it became clear Biden had won the 2020 election (see 2011180064), which amplified his existing opponents’ concerns.

Most nominees don’t have a substantial public record and Sohn is “an exception in this regard,” said Phoenix Center Chief Economist George Ford: “She has an extensive public record and substantial experience,” which “turns out to be a problem. This problem is not unique to Gigi but applies to anyone with a substantial public record.” Partisanship isn’t Sohn’s problem, Ford said: Her problem is “she can’t get enough Democratic votes.” Sohn’s “success depends on every Democratic senator supporting her and then all of them showing up on the floor along with” Vice President Kamala Harris to secure a 51-50 vote, which “is a tall order.”

Partisan divides are unlikely to become the norm, said University of Florida Public Utility Research Center Director Mark Jamison. “The differences between Democrats and Republicans over Simington, and now Sohn, appear to be based on deeply held beliefs by each side,” he said.

Rosenworcel got almost 20 Republican votes for her confirmation, noted Shane Tews, American Enterprise Institute visiting fellow. “A similar candidate, one that is well within the mainstream of telecom policy and politics, would likely get bipartisan support,” she said: “Sohn faced stiff opposition” because of her policy positions and her role as a board member for Locast operator Sports Fans Coalition, but a “Democratic nominee without that baggage would have a much easier time getting confirmed.”

Sohn and Simington are “particularly controversial” so “it may be hard to generalize from their experience,” emailed Center for Law & Economics President Geoffrey Manne. “Both are/were controversial enough in their own right that in their cases the fighting is/was mostly … about the nominee's individual views.” The “upshot is that you may see stronger opposition carrying over even onto pretty uncontroversial nominees if overall agency direction takes a sharp enough turn beforehand,” he said.

Controversy isn’t “the new normal specifically at the FCC, but is part of the reality of nominations writ large,” said Nathan Leamer, an aide to former FCC Chairman Ajit Pai. “Personnel is policy and with Congress ceding so many decisions to bureaucrats at agencies, it’s far easier to hold up the confirmation than to exercise proper oversight.” Simington “was an unknown quantity at the time in the midst of a tumultuous political landscape with control of the Senate very much in doubt,” he said: “Sohn is the opposite, a known quantity as an activist that is a tricky political dynamic in a 50/50 Senate, especially when moderate senators are needed to approve her.”

Biden's long delay in naming Sohn to the FCC seat vacated by former Chairman Ajit Pai "points to this administration’s priorities, which appear to not be with the FCC," said Americans for Tax Reform Digital Liberty Executive Director Katie McAuliffe. The FCC’s current 2-2 split “seems to be a positive development." The commission "has continued to address difficult topics and move forward in a bipartisan manner," she said: "This is the least political I’ve seen the agency in a long time, which I think is an all-around positive.”

The FCC can still get a lot done with a 2-2 split, McDowell said. “It has one more commissioner than it needs for a quorum,” he said: “It just can’t enact the rules that are likely to spur a divided 3-2 vote along partisan lines."