Hill Midterm Election Outcome Could Alter Sohn FCC Prospects, Broadband Priorities

Republicans are expected to make gains in the House. FiveThirtyEight and other election forecasters believe the party has a strong chance of winning control of the chamber from the Democrats. The GOP would need to make a net gain of only six seats to win a majority, given the current tight 220-212 margin in the chamber. GOP prospects of winning control of the current 50-50 Senate are less clear, but three of the four races seen as having the strongest potential for flipping involve Democratic incumbents.

Three Senate Commerce Committee members faced competitive races in recent months: Ron Johnson, R-Wis.; Mike Lee, R-Utah; and Raphael Warnock, D-Ga. Six panel members are on track to easily win reelection: Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn.; Communications Subcommittee ranking member John Thune, R-S.D.; Tammy Duckworth, D-Ill.; Jerry Moran, R-Kan.; Brian Schatz, D-Hawaii; and Todd Young, R-Ind. Committee member Roy Blunt, R-Mo., is retiring.

Warnock faces the tightest contest among the three competitive Senate Commerce members and forecasters see him in a tossup with Republican Herschel Walker. Polls since the middle of October have ranged from Warnock leading by 6 percentage points to Walker leading by 7 points. If no candidate in the race wins more than 50% of the vote in the Tuesday election, the top two with the most votes will move on to a Dec. 6 runoff contest. Johnson’s race against Democratic Wisconsin Lt. Gov. Mandela Barnes has moved in his favor in recent weeks, FiveThirtyEight and other organizations said. Polls since mid-October ranged from Barnes leading by 2 points to Johnson leading by 8 points. Lee, who’s also Senate Antitrust Subcommittee ranking member, has led independent candidate Evan McMullin by up to 15 points in recent polls.

Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, and Intelligence Committee Vice Chairman Marco Rubio, R-Fla., are now viewed as favorites to win reelection, after facing more competitive contests earlier in the year. Judiciary members John Kennedy, R-La., and Alex Padilla, D-Calif., are expected to easily win reelection. Analysts consider other tech and telecom-focused senators seeking reelection this year as certain to win, including Senate Appropriations Financial Services Subcommittee Chairman Chris Van Hollen, D-Md.

Grassley has led by up to 12 points in recent polls against Democrat Mike Franken, a retired Navy vice admiral. Grassley has been heavily involved with antitrust legislation during this Congress, including in the push to pass (see 2207260068) the American Innovation and Choice Online Act (S-2992). Rubio has led House Homeland Security Emergency Preparedness Subcommittee Chair Val Demings, D-Fla., by 4 to 11 percentage points in recent polls. He has been a leading supporter of restricting Huawei and other Chinese telecom vendors’ access to U.S. infrastructure, including by pressing for more funding for the FCC’s Secure and Trusted Communications Networks Reimbursement Program (see 2208240068).

Two House Communications Subcommittee members are in tossup races: Angie Craig, D-Minn., and Tom O’Halleran, D-Ariz. O’Halleran faced a tough race in 2020 (see 2010140048). Two other House Commerce Committee Democrats are also in tight contests: Annie Kuster of New Hampshire and Kim Schrier of Washington. Commerce Chairman Frank Pallone, D-N.J., ranking member Cathy McMorris Rodgers, R-Wash., and other panel members are expected to win easily. Retiring members include Communications Chairman Mike Doyle, D-Pa. (see 2111120002), and former House Commerce Chairman Fred Upton, R-Mich. Two House Intellectual Property Subcommittee members are in tight reelection battles: Reps. Steve Chabot, R-Ohio, and Greg Stanton, D-Ariz.

Confirmation Implications

Two Democratic Senate incumbents who have been undecided on Sohn remain in what forecasters view as tossup races against their GOP opponents: Mark Kelly of Arizona and Catherine Cortez Masto of Nevada. Lobbyists believe the senators' tough reelection prospects are the primary reason neither lawmaker declared support for the nominee (see 2205050050). Polls in the Arizona race since mid-October ranged from Kelly leading by 6 percentage points to Republican challenger Blake Masters leading by 1 point. Recent polls in the Nevada contest range from Cortez Masto leading by 2 points to Republican former state Attorney General Adam Laxalt leading by 6 points.

New Street’s Blair Levin and others said it’s hard to forecast how voters’ decision on Senate control could impact Sohn’s confirmation chances. Her confirmation process has stalled for eight months (see 2206070046). “If the Republicans win the Senate, I could argue either it improves her chances or it decreases her chances,” Levin told us: “I could argue it either way if the Democrats retain control.”

Cortez Masto and Kelly are likely to factor their election results into whether they decide to back her during the lame-duck session that begins next week, lobbyists said. All 50 Senate Democrats would need to vote for Sohn on the floor to ensure her confirmation since all 50 Republicans are likely to vote against her. Senate Commerce tied 14-14 along party lines when it voted on Sohn in March (see 2203030070), meaning the full chamber would need to discharge her from committee consideration to bring the nomination to the floor.

A small number of people besides Cortez Masto and Kelly will determine the outcome, including Senate Majority Leader Chuck Schumer, D-N.Y., and Sen. Joe Manchin of West Virginia, another Democrat who has remained publicly undecided on Sohn, Levin said. The lame-duck session will “be a time for the Biden administration to finish its work” on Sohn’s confirmation “regardless of whether the Democrats retain control or if the Republicans” win a majority, said Public Knowledge Government Affairs Director Greg Guice. “There will be different motivations” in either scenario that could “push her forward.”

Policy Shift?

Midterm elections "are usually overrated in terms of their policy impact because they’re not going to change the direction that much,” but the 2022 election could cause “some significant changes,” Levin said. The risk that Republicans could allow a U.S. debt default if they gain a majority in either chamber could raise questions about whether Congress will try to claw back some unspent infrastructure funding, but “I don’t think that will affect” broadband money, he said. “A lot of that money serves Republican constituencies” and the GOP doesn’t “see it as inflationary,” so it’s likely safe, Levin told us.

“The bigger issue is what happens if” the U.S. 6th Circuit Court of Appeals “eliminates the current USF structure” in its decision on the Consumers’ Research-led legal challenge (see 2110050056) to the FCC’s 2021 approval of USF’s quarterly contribution factor on grounds the agency exceeded statutory authority by delegating authority to raise and spend money through USF to Universal Service Administrative Co., Levin said. “Is Congress capable of rescuing the program? I think it’s more difficult if the Republicans control the House, but we’ll have to see how they’ll react.” He said he will watch for whether Republicans will “really support having Big Tech pay for USF” as FCC Commissioner Brendan Carr and others have suggested (see 2105240037) if the party gains either chamber.

GOP majorities in both chambers could help the party better coordinate on legislation and “set more of a narrative,” said consultant Chuck Flint, former chief of staff to Sen. Marsha Blackburn, R-Tenn. “You might see more hearings focused on rural broadband” than during this Congress since Democrats eyed “initiatives that tend to overbuild based on areas that are underserved” rather than unserved areas, he said. If the FCC shifts to a 3-2 Democratic majority and decides to revisit net neutrality rules, “you will see a legislative effort” in a Republican Congress aimed at “taking that issue off the table,” Flint said.

Democrats will likely take a “more defensive posture” on telecom policy issues if either chamber shifts to a GOP majority, Guice said. Conversely, if the Democrats can draw a net gain in the Senate, the Net Neutrality and Broadband Justice Act (HR-8573/S-4676) proposal to reinstate broadband as a Communications Act Title II service (see 2207280063) and other proposals to bring back the FCC’s rescinded 2015 net neutrality rules “might have more bandwidth.” Lawmakers delayed filing HR-8573/S-4676 until July amid concerns about Sohn’s stalled confirmation process.

The election results could also affect the outcome of negotiations on the House-passed Spectrum Innovation Act (HR-7624) and Senate Commerce Democrats’ pursuit of alternative legislation (see 2209300058), Guice said: The outcome will determine whether “we’re doing a robust spectrum bill as part of an omnibus” year-end bill package or “a straightforward extension” of the FCC’s spectrum auction authority past Dec. 16 as part of a continuing resolution to extend congressional appropriations past that date.