Sohn Supporters Expect 3rd FCC Nomination Try Soon

Supporters of FCC nominee Gigi Sohn have gotten indications the Biden administration wants to renominate her in January, but there’s been no definitive word this will happen amid uncertain internal Senate dynamics. That lack of clarity in part stems from Senate leaders not yet being able to guarantee Sohn would get as swift a confirmation process as the White House and others want, lawmakers and lobbyists said in interviews. The Senate failed to hold any floor votes on Sohn before the chamber left town just before Christmas, and it won’t return until just before the 118th Congress gavels in Tuesday. Sohn’s 2022 confirmation process stalled in March after the Commerce Committee tied 14-14 on advancing her to the floor (see 2203030070). Biden first nominated her in October 2021 (see 2110260076).

Sohn’s backers claim the number of items on hold at the FCC, from the establishment of the Space Bureau to fines against the major wireless carriers for allegedly failing to safeguard data on their customers' real-time locations (see 2212190055), show that the current FCC isn’t working as it should. Others say the situation is complicated, with some items not moving through no fault of Republicans (see 2212290030), while commissioners are able to agree on many other items.

Senate Commerce Chair Maria Cantwell, D-Wash., and Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., separately told us they still enthusiastically support Sohn and would personally push for President Joe Biden to renominate her. “We need an up or down vote” on Sohn, Lujan said. “There was no good reason” not to hold one during the lame-duck session, but “there needs to be an up or down vote” on her during the next Congress. “That’s something that I think” Sohn “also agrees on,” he said: “I don’t see why she wouldn’t be confirmed” if that happens.

“I think it’s a good idea” for Biden to renominate Sohn, in part because the unusual Senate dynamics during this Congress caused by the 50-50 tie in the chamber and similar committee deadlocks won’t be a factor come January, Cantwell told us. The Senate will shift Tuesday to a 51-49 outright, if tenuous, Democratic majority. It’s still unclear how the recent shift of Sen. Kyrsten Sinema of Arizona from a registered Democrat to independent caucusing with the party will affect margins in the chamber (see 2212090058). Frequent Democratic absences during this Congress also often made it difficult to muster enough votes to counter what would likely have been unanimous GOP opposition to her confirmation, Cantwell said.

Another Hearing?

“We’ll probably have to” conduct the entire Senate Commerce confirmation process on Sohn again in the next Congress, including a formal hearing, even though she’s already gone through it twice, Cantwell told us: Republicans will probably insist on “this being by the book,” but “maybe we can convince them not to” hold another hearing. “We’ve already had two, so maybe the next time it will be a little more perfunctory,” she said.

Senate Communications ranking member John Thune, R-S.D., and outgoing Commerce ranking member Roger Wicker, R-Miss., sidestepped questions about whether they want a completely new vetting of Sohn if she’s renominated, saying the White House should moot the issue by not bringing her up again. “I don’t think they should” renominate Sohn given the totality of her record, Wicker said. “I can’t imagine they’d nominate her again,” Thune said: “They were hoping she’d withdraw, and then she didn’t.”

A pair of Senate Democrats who won re-election in November amid the party’s better-than-expected performance -- Catherine Cortez Masto of Nevada and Mark Kelly of Arizona -- left town in December still as firmly undecided on Sohn as they were in the heat of the campaign. Sohn’s supporters had hoped Cortez Masto and Kelly would flip to supporting the nominee once their electoral fortunes were no longer in play. A third undecided Democrat -- Sen. Joe Manchin of West Virginia -- didn’t comment.

Cortez Masto didn’t indicate a position on Sohn but noted “concerns” about the nominee’s stance on “defunding the police,” a reference to a Fraternal Order of Police analysis of the nominee’s past interactions with anti-police social media posts that Sohn’s supporters say the group is taking out of context. “I don't think she's going to be brought up,” Cortez Masto said.

Sohn is “not a nominee I’ve thought about a lot lately, but I review these nominations as they come to the floor,” Kelly told us. “Whether it’s her or somebody else” Biden nominates to the FCC in the next Congress, “I’ll take a very close look at it before I decide how to vote.”

Senate Dynamics

The White House didn’t comment. Other potential names to replace Sohn as the Democratic FCC nominee continue to circulate, including former acting NTIA Administrator Anna Gomez, ex-Wiley (see 2207010056), and NASA Chief of Staff Susie Perez Quinn, lobbyists said.

Sohn’s supporters privately don’t relish the prospect of another confirmation hearing despite their enthusiasm for her renomination. Both of Sohn’s appearances before Senate Commerce turned into forums for vocal GOP criticism. Sen. Ted Cruz of Texas, who’s set to become panel ranking member in January following Wicker’s shift to take the lead on the Senate Armed Services Committee, was among the Republicans who criticized Sohn during a December 2021 hearing over her past social media posts critical of major telecom and media companies (see 2112010043). Her appearance last February before the panel focused on her role as a board member for Locast operator Sports Fans Coalition and her commitment to temporarily recuse herself from some FCC proceedings involving retransmission consent and broadcast copyright matters (see 2202090070).

Biden, Sohn and Senate Majority Leader Chuck Schumer, D-N.Y. “are going to have to communicate and figure out if they have at least 50 votes” in her favor, said Revolving Door Project Executive Director Jeff Hauser. “If so, she’ll be renominated and confirmed. I don’t think they’ll nominate her again without a clear path” to Senate approval. “A competent administration and Senate leadership will know whether or not they have the votes” this week, so “failing to make a nomination of anyone” for the FCC seat “would be a real sign of incompetence,” he told us: “They need to bring all the pressure to bear. I don’t think she should be that difficult to confirm if the administration’s and Schumer’s hearts are really in it.”

An additional confirmation hearing for Sohn “would be a ridiculous, dilatory measure, but that’s a price the Democrats should be willing to pay,” Hauser said. “Democrats can’t allow that sort of tack to determine how they exercise the executive authority Biden won” in 2020. “It’s quite possible that Republicans would compel another hearing,” as this would be in line with tactics Senate GOP leadership have taken on nominees in Democratic administrations since the 2016 stall on failed Supreme Court nominee and now-Attorney General Merrick Garland, Hauser said.

FOP Continuing Opposition

Other Sohn supporters are optimistic but tight-lipped about her 2023 prospects. “It was good to hear” Cantwell “still believes” that Sohn “is the right nominee and wants the White House to renominate her so that they can finish that work,” said Public Knowledge Government Affairs Director Greg Guice.

The FOP, meanwhile, plans to again actively oppose Sohn if Biden renominates her, said Executive Director Jim Pasco. FOP cited Sohn’s social media activity and her role as an Electronic Frontier Foundation member (see 2201040071) given that group’s backing of end-to-end encryption and “user-only-access” to mobile devices. “We tried to educate the entire Senate” about FOP’s concerns about confirming Sohn, though much of the public focus was on the group’s outreach to Democrats like Cortez Masto and Kelly who faced tough re-election battles in 2022, he told us.

The Republican caucus “doesn’t have any sympathy for” Sohn, so “the senators we talk to” about her in the next Congress “will be those Democratic senators who have not expressed opposition” to her confirmation, Pasco said. He refused to cite specific senators who changed their minds about Sohn because of FOP’s criticisms, but when asked about Cortez Masto he noted “we had conversations with her staff and hopefully her decision” on a future Sohn nomination “will be at least to some degree informed by our conversations.”

“Just because we’ve had an election doesn’t change the issues,” which in Sohn’s case involves “public safety, which is a paramount responsibility for elected officials,” Pasco said. “We always look at things through the prism of current events, so we try to be flexible in our approach but not our goals.” FOP’s 2024 Senate endorsements will “in part” be based on whether incumbents seeking re-election back Sohn, he said: “We try to judge nominees on their body of work,” but the group’s Nevada arm decided to endorse Cortez Masto’s unsuccessful GOP opponent, former state Attorney General Adam Laxalt, amid the incumbent’s lack of public opposition to Sohn.

Commission Gridlock

Chairwoman Jessica Rosenworcel can’t propose many of the things she wants to do without a Democratic FCC majority and must cut deals to get anything done, Guice said. “That’s where we find ourselves two years into the Biden administration, which is ridiculous.” There “is no forcing mechanism,” he said. Rosenworcel “has no leverage.” Two commissioners “can simply say ‘you can move your item forward, but we’re going to be no votes,’ which means nothing happens,” Guice said.

The incoming Senate Democratic majority should make it “much more likely that the commission will be able to get a full slate next year, though we need to see action,” said Electronic Privacy Information Center President Alan Butler. “It has been a real problem to essentially not have a functioning commission.” Rosenworcel appears to be “walking on eggshells,” he said: “In a sense, the threat of holding up Gigi’s nomination has led the chair to be super cautious.” Butler hopes “that there’s a reset next year because this has just been a stagnant two years for the commission.”

“The number of decisions on circulation will just keep on stacking up and delaying important new uses of spectrum until Congress votes to confirm” Sohn or another fifth commissioner, said New America’s Open Technology Institute Wireless Future Project Director Michael Calabrese. “The FCC should not be so partisan that even seemingly non-controversial rulemakings … are stuck indefinitely [in a 2-2] limbo. But that’s where we are until Democrats in the Senate focus on the importance of a fully functioning FCC.”

“A third vote would make things easier on the chair, but I'm not sure it's always, per se, the cause of delays,” emailed Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Joe Kane: “If Republican commissioners are dragging their feet on items they support, that's certainly undesirable. But if they have substantive disagreements, then it's a two-way street: items are routinely amended to accommodate minority commissioners' concerns and get to three (or often unanimous) votes.”

“It’s a fallacy to say that a 2-2 FCC can’t get a lot of significant things done,” emailed Cooley’s Robert McDowell, a Republican former commissioner. The 2-1 Democratic FCCs “under Mike Copps in 2009 and Julius Genachowski in 2012 were very productive with complicated and controversial initiatives from the [DTV] transition to spectrum policy and complex mergers,” McDowell said: “It was a 3-1 FCC" in 2011 "that tackled the first USF reform since” the 1996 Telecommunications Act “and that was a 4-0 vote. In fact, it could be liberating and more efficient to have a 2-2 FCC because that situation disciplines the chair’s ‘to do’ list.”