Dems’ dreams could get crushed yet again — this time, at the FCC

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Republicans are lining up against one of President Joe Biden’s long-awaited picks for the Federal Communications Commission — which means the outcome of this White House priority could come down, once again, to Sens. Joe Manchin and Kyrsten Sinema.

At stake are Democrats’ hopes for a majority on the five-member FCC, which has been mired in a 2-2 partisan split for all of Biden’s term. That in turn will determine whether the agency can get to work on progressives’ telecom priorities, including a revival of the agency’s Obama-era net neutrality rules.

If the Senate fails to act by the end of the year, Republicans will end up holding the FCC’s majority in January — even if Democrats nominally remain in charge. It’s yet another example of the endless roadblocks Democrats are encountering despite their control of the White House and Congress, in addition to their struggles in passing an infrastructure bill or meeting their promises on climate change, taxes, paid leave and health care.

Biden ended months of suspense last week by announcing two Democratic picks for the FCC, nominating Chair Jessica Rosenworcel for a new five-year term on the commission and net neutrality activist Gigi Sohn to fill its open seat.

Republican senators largely said they can live with Rosenworcel — but GOP leaders say they’re drawing the line at Sohn and her perceived regulatory bent. And they’re not on board with Democrats’ push to rush the confirmations through.

“Sohn, obviously, her views are going to be very far apart from where mine are on all the issues,” Senate Minority Whip John Thune told POLITICO. “She’s very left, she’s going to be a heavy hand in regulation, very heavy in net neutrality.”

“She’s going to be very much, I think, Big Government stepping on the scales,” the South Dakota Republican added.

Democrats could still jam through Sohn’s confirmation even in the face of unified Republican opposition, but only if their entire caucus sticks together. That means the outcome could come down to the same two Democratic senators who have played an outsize role in thwarting liberals’ hopes for expanding Medicare, hiking taxes on billionaires and providing Americans with free community college and parental leave.

While the two West Virginia and Arizona Democrats are on record as backing Rosenworcel, neither has said a word yet on Sohn, a former top adviser at the Obama-era FCC and co-founder of advocacy group Public Knowledge. Sinema has historically joined Republicans in fights over FCC policies, including opposing net neutrality.

Spokespeople for both Manchin and Sinema declined to comment on Sohn.

Democrats have precious little floor time to get the nominations through by year’s end — on top of their December deadlines for avoiding a government shutdown or U.S. debt default, or their efforts to enact Biden’s infrastructure and social spending bills.

Some Sohn supporters are not panicking yet, however.

Evan Greer, who helps helm the progressive tech advocacy group Fight for the Future, said she believes Sohn could even score some GOP votes. Although Sinema opposed net neutrality legislation — and Fight for the Future tarred her as “corrupt” for doing so two years ago — Greer said that doesn't necessarily mean the senator would “intentionally kneecap the FCC in the middle of an ongoing pandemic, and block the first LGBTQ nominee to the position in the process.”

“Gigi is seen as a progressive, but really she's just a deeply principled advocate for the public interest,” she added. “She's been around forever, talks to both industry and civil society, and is seen as a reasonable and thoughtful person who wants to get things done.”

What’s behind the GOP anxiety

Sohn has long had a reputation as a shrewd operator within telecom circles, adept at pulling together coalitions in support of causes such as fighting industry consolidation and empowering local governments to build their own internet networks.

But the same virtues that win her progressive applause startle the telecom industry. Those fears emerged this summer as word spread that Biden was eyeing Sohn for FCC chair, a possibility that some Senate vote-counters deemed challenging.

The main GOP concern about Sohn is the same one that bedeviled the final hours of this summer’s infrastructure bill negotiations: the prospect that Democrats may want to regulate the prices that broadband providers like Comcast charge customers. That possibility is one reason Republicans have spent years opposing net neutrality, which they worry would lead to the FCC assuming more regulatory power over broadband networks.

The net neutrality rules that the FCC adopted in 2015, with Sohn’s support, specifically avoided rate regulation. (The agency’s Trump-era leadership repealed the policy two years later.) But she favors tightening government powers over broadband and restricting practices like price gouging.

The confirmation process will give senators a chance to drill down on just what policies the nominees might support.

Sohn’s nomination is “more problematic” for Republicans than Rosenworcel’s, said Mississippi Sen. Roger Wicker, the top Republican on the Commerce Committee, which will vet both nominees. In an interview, he said Sohn’s past statements and positions “could prove to be of concern to members of the committee.”

In contrast, Rosenworcel — a former FCC and Commerce Committee staffer with wide support on the Hill — has at times thwarted liberal policy proposals that Sohn supported. Those include an Obama-era plan at the FCC that would have created more competition in the market for cable set-top boxes.

A mix of other Senate Republicans, however, weren’t immediately critical when asked about Sohn and said they were open to talking with her. That could leave open the possibility of Sohn — with the right persuasion — peeling off a handful of more moderate Republicans who may not feel as troubled as Thune and Wicker. In 2018, Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and John Neely Kennedy of Louisiana sided with Democrats on net neutrality. (Kennedy’s office has declined to comment on Sohn’s nomination. Collins and Murkowski did not respond to a request for comment.)

Still, FCC nomination fights have grown increasingly contentious. When the Senate approved a commission nominee from then-President Donald Trump last December, it was along an entirely party-line vote of 49-46.

And even if a handful of Republicans were to back Sohn, they would probably do so only on top of unified Democratic caucus support to avoid clinching the confirmation and a subsequent FCC Democratic majority, one veteran telecom policy observer told POLITICO, requesting anonymity to speak frankly. “The moderate Democrats are critical,” the observer added.

No time to waste

Worsening the Democrats’ squeeze is the fact that Biden waited longer than any previous president to name anyone to lead the FCC, an agency that oversees the wireless airwaves, telecom networks and the TV marketplace. Many past FCC nominations have become bogged down in months of delay as nominees sought to appease lawmakers’ concerns.

Unless the Senate confirms her before adjourning in December, Rosenworcel must leave the commission because her term expired last year. If that happens, and Sohn doesn’t join the FCC, Republicans would assume a 2-1 advantage in the new year.

Under that scenario, Democrats would remain in charge of the agency, with lone Democrat Geoffrey Starks filling in as acting chair and able to set the agenda at commission meetings. But he would be unable to overcome Republican opposition to enacting Biden’s more progressive goals, such as net neutrality rules that would prohibit ISPs from blocking or throttling consumers’ internet traffic.

Even if the Senate fast-tracks Rosenworcel, the FCC would remain under its existing 2-2 deadlock unless Sohn also wins confirmation.

Republicans largely seem open to Rosenworcel and suggest her nomination could move faster than Sohn’s. Despite acknowledging that Rosenworcel’s philosophies differ from theirs — she voted for net neutrality in 2015, after all — several said they feel a personal affinity with her.

“I know Rosenworcel both from when she worked on the committee and her work on the FCC,” Sen. Roy Blunt (R-Mo.), a senior member of Senate Commerce, told POLITICO. “I’m inclined to vote for her.”

Rosenworcel, a Democratic commissioner since 2012 and previously a top Senate aide to former Senate Commerce Chair Jay Rockefeller of West Virginia, has named connecting students to broadband as her top priority. She mostly avoided partisan crossfire during the nine months she spent as acting FCC chair this year, reaching across the aisle to set up multibillion dollar pandemic relief subsidy programs.

Biden named Rosenworcel the FCC’s permanent chair last Tuesday, the same day he announced her and Sohn’s nominations.

“I would be open to voting for her,” Sen. Shelley Moore Capito (R-W.Va.) said of Rosenworcel.

“We have a good relationship,” added Capito, who has overseen the agency in roles on the Appropriations and Commerce committees and co-chairs the Senate Broadband Caucus. “She’s been responsive to me. … She’s obviously very steeped in the policy.”

Sen. Jerry Moran (R-Kan.) said he and Rosenworcel have “worked well together” — and, when asked if he could vote for her, said that “I wouldn’t take that option off the table.” He said he wants to talk with Rosenworcel about how to ensure the agency’s Democrats and Republicans get along.

Even some more conservative Republicans see her appeal.

Although Thune doubts he could vote for either nominee, he called Rosenworcel “a good pick for them to be the chair.” Sen. Deb Fischer (R-Neb.), another Senate Commerce member, said she was glad to learn of Rosenworcel’s nomination given that “she’s always been open to visiting” — and because Biden’s other rumored FCC chair contenders had inspired worry.

Democrats prepare to hit the gas

Democrats are bullish about charging ahead with nominees, whom they lauded in a flurry of statements as accomplished champions.

Rosenworcel and Sohn are both boundary-smashers, as the White House touts. The former is now the first woman to permanently chair the FCC in its more than 80 years of history. And Sohn, as LGBTQ+ Equality Caucus Chair David Cicilline (D-R.I.) hailed, would be its first openly LGBTQ commissioner.

Senate Commerce Chair Maria Cantwell (D-Wash.) has pledged to fast-track the nominees’ consideration by the end of the year, telling POLITICO she wants to schedule a nominations hearing soon. She said Rosenworcel’s past vetting by the Senate should make her process “easier” than others like Sohn.

Seating a full FCC — an expert agency on telecom — is in line with the bipartisan infrastructure plan’s vision of spending billions on broadband internet buildout and affordability subsidies, said Sen. Ben Ray Luján, who chairs the Commerce panel’s Subcommittee on Communications, Media and Broadband. The Senate’s bipartisan 69-30 vote for the infrastructure package this summer should mean “bipartisan urgency” behind these nominees, he added.

There’s no reason the Senate shouldn’t move the recent White House batch of nominees for the FCC and Commerce Department’s National Telecommunications and Information Administration in tandem, Luján added.

Luján also pointed out that Rosenworcel’s earlier Senate confirmations in 2012 and 2017 happened by voice vote. “There should not be any controversy, and I hope that we don’t see even one ‘no’ vote for Commissioner Rosenworcel,” he said.

If obstacles arise, Democrats could take the uncommon step of installing one or both nominees as recess appointments at the end of the year. But that would seat the official for a small fraction of what would normally be a five-year term and could upset some senators.

Wicker, meanwhile, wants no rush — saying the administration’s tardiness in naming nominees is to blame for creating a false sense of urgency. The committee must exercise due diligence and stick to regular Senate procedure, he said.

“What in the world has the administration been doing?” Wicker asked last week, noting that it was almost November. “It’s only a five-member panel.”