Thune Wants New Vetting of Sohn After 2023 FCC Renomination

The Biden administration included Sohn in an initial tranche of renominated Biden picks the Senate sent back to the White House Tuesday after failing to confirm them before the 117th Congress adjourned sine die. Biden "hopes the Senate will take action expeditiously" on the renewed nominees, the administration said. 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 didn’t comment.

Republicans “certainly do” still have the same “concerns” about Sohn that they did in 2022, but it’s important for the Senate to give her record a fresh look now that the 118th Congress has begun, Thune told us. He doesn’t expect a new vetting process to change any GOP senators’ minds about Sohn and believes a handful of Democrats continue to have “problems” with her record. That could make it difficult for the Senate to confirm Sohn even with the chamber shifting to an outright Democratic majority, so it’s unclear why the White House would choose to renominate given the perceived state of play, Thune said.

A full vetting process shouldn’t, in theory, hamper Sohn’s confirmation process much if there’s political will among Senate Democrats to “move expeditiously,” said Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcon in an interview. A new confirmation hearing, Senate Commerce vote and floor confirmation can happen is a matter of “weeks” under the right circumstances, as happened when Republicans fast-tracked approval of Republican FCC Commissioner Nathan Simington in late 2020, after the presidential election (see 2012080067). Fight for the Future Director Evan Greer also urged the Senate to “move swiftly” on Sohn.

The Senate was expected to leave town Tuesday night for a recess ending Jan. 23, so “that shifts expectations about when” Sohn’s confirmation could happen “into February or early March,” Falcon said. That’s “not a big difference” and won’t matter “so long as she’s on the front end of floor timing” once she clears Senate Commerce. Panel Chair Maria Cantwell, D-Wash., is “interested in being as swift as possible with confirming” Sohn, so “the schedule she sets out soon” for holding a hearing “will be a good indicator of whether she wants to move expeditiously” on the expected nominee, Falcon said.

The Democrats’ new outright Senate majority means there won’t be the same level of “boycotting threats” by Commerce Republicans (see 2202240067) or the specter of tied panel votes on Sohn or other nominees that preceded Sohn’s 2022 confirmation stall, Falcon said. He said it’s “up to” Republicans to decide whether they’ll use a new Sohn confirmation hearing as another opportunity to distort the expected nominee’s record, as her supporters believe they did in her 2021 and 2022 appearances before Senate Commerce (see 2202090070), or instead focus on “good governance” matters like “addressing the concerns” they have raised about the FCC’s broadband coverage mapping practices.

“There’s always more you can find” on a nominee’s record that make another confirmation hearing valuable, said Americans for Tax Reform’s Digital Liberty Executive Director James Erwin. “There’s going to be a new set of” Senate Commerce GOP staff working under incoming ranking member Ted Cruz of Texas, “so they’ll want to run their own complete vetting process with their own methodology.” Cruz-affiliated aides “might have their own objections they want to raise” about Sohn and may choose to prioritize issues that former panel ranking member Roger Wicker, R-Miss., “had identified” during the last vetting process that he might have chosen not to emphasize, Erwin said.

The Fraternal Order of Police again opposed Sohn, urging Cantwell and Cruz Tuesday to “convey to the White House that the nominee does not have the support of a majority of the Senate.” FOP last year cited Sohn’s past interactions with anti-police social media posts and her role as an EFF member (see 2201040071) due to that group’s backing of end-to-end encryption and “user-only-access” to mobile devices. Sohn’s supporters believe FOP took Sohn’s record out of context. Senate Majority Leader Chuck Schumer, D-N.Y., didn’t bring Sohn to the floor during the last Congress “because he did not believe there were enough votes to confirm her,” FOP National President Patrick Yoes wrote the Senate Commerce leaders.

“We do not believe that the midterm election has changed" Senate dynamics "and it has certainly not changed the FOP’s priorities or our concerns about this nominee,” Yoes said. Sohn “is a terrible choice to serve on the FCC and” the Senate Commerce leaders should “urge the President, as we have, to select someone else" for the vacant seat. “Technology companies have responsibilities when it comes to public safety, which includes cooperating with lawful and legitimate law enforcement orders, but the EFF has been the leader in the efforts to thwart lawful access to digital data and evidence," he said: "Based on the fact that Ms. Sohn remains an EFF board member, we have no confidence in her ability to objectively perform the duties of an FCC Commissioner.”