Sohn May Face Long-Term Senate Confirmation Limbo Despite Recent Publicity

Continued Senate Democratic absences this week guaranteed further delays for Sohn, FTC nominee Alvaro Bedoya and other Biden administration nominees who face strong GOP opposition. Continued uncertainty about Sohn's prospects more than six months after President Joe Biden nominated her (see 2110260076) is generating questions about how long the White House can continue pushing for her confirmation without risking not being able to get another Democrat after the Nov. 8 midterm election.

Cortez Masto, Kelly and Manchin were evasive when asked what specific issues they want to resolve with Sohn. “I’m still looking at all of the information” on Sohn, Cortez Masto said. “I’m continuing to evaluate” Sohn’s “record and experience,” among other factors, Kelly said. “I haven’t made a final decision” on Sohn after a meeting last month with the nominee, in part because “there are so many things going on right now,” Manchin said. All 50 Senate Democrats would need to back Sohn during an initial vote to discharge her from Senate Commerce Committee jurisdiction, along with regular cloture and final confirmation votes due to expected uniform GOP opposition.

Senate Commerce Chair Maria Cantwell, D-Wash., insisted the main barrier to progress on Sohn is securing floor time for an initial discharge vote, rather than opponents of the nominee gaining traction with chamber Democrats. Cantwell likened opposition to Sohn to bids to stall confirmation for Bedoya and some Consumer Product Safety Commission nominees. The Senate couldn’t hold a hoped-for cloture vote on Bedoya this week because Sen. Michael Bennet, D-Colo., was absent after testing positive for COVID-19. “We’ve got to get people back” and “healthy” to make progress on those nominees, Cantwell said.

All Senate Democratic caucus members “need to be supportive” of Sohn and Biden, Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., said. None of the lawmakers “that I’ve asked to substantiate some of the rumors circulating right now … is willing to give me documents to substantiate” that any Democrats oppose Sohn, so “I think it’s just that. It’s rumors. And people are trying to turn this into a political hotbed. Let’s work together and make sure” the chamber is “ready to go” on Sohn once all 50 Democrats are available to vote on her.

Electoral Factors

The three undecided Democratic senators are demurring from taking a position on Sohn partially because of continued Fraternal Order of Police criticism of the nominee and that group’s threat to base endorsements in the incumbents’ re-election bids in part on whether they back her, communications sector lobbyists said. The Nevada FOP on Wednesday formally endorsed former state Attorney General Adam Laxalt, Cortez Masto’s likely GOP challenger, but the national FOP hasn’t announced who it’s backing. The senators’ offices didn’t comment.

FOP released the results of a Morning Consult-conducted online survey of U.S. voters Wednesday that pressed respondents on their opinions of Sohn based on the group’s description of her stance on police and crime issues. The group opposed Sohn, in part citing her role as a board member for the Electronic Frontier Foundation due to EFF’s backing of end-to-end encryption and “user-only access.” The survey found 65% of 1,000 surveyed registered voters across the U.S. “are unsure of or have no opinion on” Sohn but suggested those respondents who said her nomination would affect their choice of senator would be more likely to back a Republican. Sohn’s supporters said FOP is deliberately mischaracterizing Sohn’s positions and called the group’s survey a flawed “push” poll.

The FOP poll also specifically surveyed groups of 500 voters in each of seven states: Arizona, Colorado, Georgia, Maine, Nevada, Washington and West Virginia. The survey report cited polling on Sohn directed at Democratic incumbents up for re-election this year: Bennet, Cortez Masto, Kelly, Patty Murray of Washington and Raphael Warnock of Georgia. Warnock was among the 14 Senate Commerce Democrats who backed Sohn when the panel reached a tie vote to advance her in March (see 2203030070). Bennet, Murray and Warnock didn’t comment.

It’s unclear whether a decision on Sohn will have any effect on its own on the re-election prospects of Cortez Masto, Kelly or Manchin, political science professors told us. Cortez Masto and Kelly both face tough re-election contests this year; Manchin is up again in 2024.

Manchin “could go either way” on Sohn, said West Virginia University professor Jason MacDonald. He’s “established that he’s willing to take positions contrary to” Biden and Barack Obama, the two Democratic presidents who have held office while he has been a senator, and “West Virginia voters largely have this impression.” That “puts him in as solid of a position to retain his seat in 2024 as any incumbent Democrat holding statewide office … could expect” given the state’s strong trend toward the GOP, MacDonald said: “Given this, are” West Virginia “voters really going to care about how he votes for some nominee for the FCC? On the other hand, you never know what ads are going to be run against you. So, the senator might not have much incentive to vote for the nominee. In that sense, it’s all downside.”

Cortez Masto will have to weigh potential electoral upsides and downsides to taking a position on Sohn, said University of Nevada, Las Vegas professor Dan Lee. FCC decisions are “not something that a lot of voters think about,” even the implications of a potential push to bring back a form of its 2015 net neutrality rules, he told us: Cortez Masto “has nothing to gain and a lot to lose” based on her position on Sohn. “She’s not going to campaign on” backing or opposing Sohn, “but for sure it could” feed into Laxalt “painting a picture of” the incumbent as “an extreme liberal.” On the other hand, Cortez Masto must remain a “team player” for the Democratic caucus, Lee said: “If she’s part of blocking Biden’s nominees, that” could potentially hurt base voters’ enthusiasm for her re-election.

“I sincerely doubt” any Democratic senators “are going to be much persuaded” by public campaigns by Sohn’s opponents or supporters like the Communications Workers of America (see 2204250040), said New Street’s Blair Levin, a Brookings Institution senior fellow. “They’re making a series” of electoral and non-electoral calculations as they decide on Sohn, and ads aren’t generally a major part of that decision, he said. Levin still believes Sohn is favored to get confirmed, but “something has happened to cause people to think the opposite is going to” occur. “Time is always a problem” for a Senate confirmation process and “the more time it takes” to get Sohn through, “the more difficult” it’s going to be to succeed.

Heitkamp Criticism

Sohn is “going to fight for consumers, and maybe that scares some companies” and other communications sector stakeholders behind the campaign against her, Cantwell told us. “Everybody knows that prices are high on a lot of things” and all Democrats are “people who support the issues that” Sohn “stands for,” including “more broadband access and important issues on net neutrality” like preventing throttling. “We’ve asked everybody if they would meet with” Sohn, “which I think many people did,” Cantwell said. She hopes those meetings helped clarify questions about the nominee’s record and views.

Cantwell noted some surprise that former Sen. Heidi Heitkamp, D-N.D., got involved in opposition to Sohn via her role as a board member for One Country Project, which began spending $250,000 on ads against the nominee in April. “I think of North Dakota as a state that has broadband issues and I think of Gigi as someone who’s a great advocate of making sure Americans have access to broadband,” including in rural areas, Cantwell said. “We’ve just been through this pandemic and even before that based on” closing the homework gap, having a functioning FCC to address digital divide issues would seem to be something Heitkamp would back. One Country didn’t comment.

Senate Communications ranking member John Thune, R-S.D., believes the proliferation of ads and other campaigns on Sohn are “indicative of the influence” the role of FCC commissioner “has and the concerns people have about the disruptive style” Sohn “would bring to the commission.” The 2-2 tied FCC is “working pretty well right now and she just doesn’t represent a mainstream nominee for that position,” Thune said: “Obviously both sides are very engaged” and “stakes are high” given what a 3-2 Democratic majority could mean for the commission’s agenda.

Public Knowledge Government Affairs Director Greg Guice and other Sohn supporters expressed outrage over Heitkamp’s involvement in One Country’s campaign. The group hasn’t disclosed its funding sources, but critics claim it has ties to the wireless and cable sectors. It's “a sad, sad state of affairs that industry folks are willing to pay” Democrats like Heitkamp “to take down other Democrats,” Guice said. “It says a lot about how broken our system is. It’s infuriating” and “the public should be outraged.”

Uncertainty Breeds 'Noise'

Sohn “is going to be fine” because “the votes are there” to confirm her, Guice told us. "This is all just noise." The "illusion of doubt gets reported as doubt, and then that doubt feeds other doubt," he said. "It’s just this cycle that feeds itself” and opponents only have to “throw a little seed corn out there." Guice noted there are no real differences on policy issues between Sohn and FCC Chairwoman Jessica Rosenworcel, who the Senate confirmed in December 68-31 (see 2112070071). Opponents of FCC action on net neutrality and other issues “know Gigi is the vote” and “their game is gridlock,” he said: “It doesn’t matter if it’s Gigi or Jesus. … They’re going to throw everything they have at this.”

“It’s a crying shame this nomination hasn’t” gone through the Senate already, said former Commissioner Michael Copps: “It’s time for both the White House and Senate leadership to play some hardball. Big money opposition is conducting a sleazy campaign against confirmation, and it’s time to put an end to it. Communications issues vital to our democracy need the attention of a fully functioning FCC.”

“It is hard for me to imagine what the FCC will accomplish if someone like Gigi is not allowed on it because that would be a sign that the cable, telephone and broadcast companies are too powerful for the FCC to regulate,” said Christopher Mitchell, Institute for Local Self-Reliance director-community broadband networks.

It’s “definitely horrible how Gigi has been singled out, presumably because she’s a career consumer advocate, which should make her more, not less, qualified and appropriate for this position,” said Michael Calabrese, director of the Wireless Future Program at New America.

Path Forward?

The White House is unlikely to consider withdrawing Sohn without a public declaration from Manchin or another Democratic senator that they'll oppose her confirmation, lobbyists told us. Biden continues to support Sohn and administration officials are still talking to senators in support of the nominee, a White House official said. Biden may keep Sohn's nomination active through the Nov. 8 midterm election in case the administration can strike a deal with any of the undecided senators, lobbyists said.

Sohn and the White House didn't comment.

Experts disagreed whether one viable route forward would be a recess appointment for Sohn, probably in December, which would create a one-year 3-2 Democratic majority. The FCC would then be under pressure to move on bigger, more controversial items early in 2023, and Rosenworcel wouldn’t have to cut a deal with FCC Republicans on other items.

“There are plenty of party loyal and less controversial candidates” who “could be confirmed as the fifth commissioner, though maybe along party lines,” said Phoenix Center Economist George Ford. “Facing a flip of the Senate in November, my expectation is that the Biden administration will skirt the process and use a recess appointment.”

Nothing is likely to happen on the Sohn nomination until after the election, predicted TechFreedom President Berin Szoka. The Biden administration doesn’t seem to have “a backup plan,” so “I would not assume that they have a reliable option they could quickly act on.”

The problem with a recess appointment is that it lasts only through the next term of Congress and if Republicans take control of the House or Senate they could block future appointments, Szoka said. The FCC could get some things done “but not everything" on the Democrats' agenda. “The best they could hope for is just voting out as many orders as they can get through in a year,” he said: If the courts remand part of an order, Democrats wouldn’t have a majority to address it. A bigger, more controversial issue going from an NPRM to a final order is often “a 10-, 11-month process, at best,” Szoka said.

“If I were Biden, I would move on,” said University of Florida Public Utility Research Center Director Mark Jamison: “There are other people he could nominate to the FCC that would hold similar perspectives to Gigi, and an office in the White House might be a better place to leverage her expertise and ability to influence.”