A chorus of conservative groups is telling Senate Majority Leader Mitch McConnell, R-Ky., not to accept a deal to reconfirm FCC Commissioner Jessica Rosenworcel this year. Congress remains in session for a perhaps no longer than this week, and she will have to leave the agency if not reconfirmed this session. GOP holds have prevented her from advancing all year. The groups fear a deadlocked FCC under the incoming administration. A senior Senate Republican confirmed Monday that Republicans are seeking to wrap in a GOP commissioner reconfirmation.
Opponents to reconfirmation now include American Commitment, the Americans for Tax Reform (ATR) and a TechFreedom-led coalition also including the Competitive Enterprise Institute, Free the People and the Niskanen Center. Others on the political right showed support for such opposition.
Possible leadership-level deal negotiation potentially involved confirmation of a GOP Federal Energy Regulatory Commission nominee and reconfirmation of FCC Commissioner Ajit Pai, whose term expired this summer, and likely some commitment from FCC Chairman Tom Wheeler on his plans to step down (see 1611300066). Pai has yet to be renominated. A cloture petition may be involved. Senate Commerce Committee Chairman John Thune, R-S.D., and incoming Minority Leader Chuck Schumer, D-N.Y., (see 1612010066) confirmed negotiation last week, and a Democratic Senate staffer expressed optimism Friday (see 1612020035). Drawing in Pai's renomination could involve the transition team for President-elect Donald Trump and the outgoing Obama administration. Senate Minority Leader Harry Reid, D-Nev., said reconfirming Rosenworcel was part of an earlier McConnell deal to reconfirm Commissioner Mike O'Rielly last Congress. "Waking up from the election, Senate Democrats are in full deal mode to horse trade," said Raymond James analyst Frank Louthan in a research note. McConnell and Reid spokespeople declined comment Monday.
"It's still swirling but no finality and no deal yet," Thune said in an interview Monday night. "It'd have to be soon." He confirmed Republicans would want Pai's reconfirmation included in any deal. He also acknowledged the struggle of advancing Pai given the lack of a formal Pai renomination from the White House: "It'd be expedited. But from our standpoint, we have to process him, we have to have a vote at the committee and report him and then he's got to be voted on on the floor. At this point, I don't how desperately the administration wants all this stuff to happen but they would have to move heaven and earth right now, probably." When asked if the White House and Trump's team are involved, Thune paused and said: "Anybody who has an interest in this, yeah, is involved in some of the discussions and conversations that are going on."
"Confirming Rosenworcel without Tom Wheeler's resignation in hand will confirm conservatives' worst fears about Mitch McConnell," Institute for Policy Innovation President Tom Giovanetti told us. "On Election Day, voters resoundingly rejected the government overreach of the Obama administration, and one of the worst culprits was Tom Wheeler at the FCC. Now, with Republicans completely in charge, it would be an unforced error to allow the FCC to proceed even a day longer than necessary without a Republican majority. Republicans should make it clear that Tom Wheeler has to go, and if the price is Commissioner Rosenworcel, so be it." McConnell would be "starting off on a very bad foot and confirming conservatives' worst fears about him" to reconfirm any Democratic commissioner before Wheeler's absence, Giovanetti said.
Groups Mobilizing
ATR strongly slammed the possible Rosenworcel vote. Its blog post last week said "Republicans are on the verge of destroying one of the largest sectors of the economy" with a deadlocked 2-2 FCC even if Wheeler commits to leaving.
American Commitment now says it has orchestrated more than 12,500 letters to Congress urging against reconfirmation. "Make no mistake -- a vote for Rosenworcel is a vote to re-elect Obama's FCC, a rogue agency known for imposing billions of dollars of job-killing power grabs," said the petition the group is circulating.
"Multiple sources confirm that the nightmare scenario identified by ATR is indeed likely to occur: Senate Democrats have picked off enough Republicans to force a vote next week on reconfirming Democrat Jessica Rosenworcel," American Commitment President Phil Kerpen wrote in a blog post. He feared Wheeler's sticking around after a Rosenworcel vote: "Imposing a Democratic FCC on a Republican president is completely outrageous and no Republican should vote for it. It is inconsequential whether it is paired with Republican Ajit Pai's renomination, because he is already slated to stay on the FCC for another year and can be easily reconfirmed next year."
TechFreedom led a letter to Senate leaders Monday suggesting timing will force Rosenworcel's exit: "Unfortunately, there simply is not time to properly consider a new nomination now, even if Chairman Wheeler were to resign immediately and President Obama were to nominate a Republican chosen by the President-elect," the groups wrote. "So the only way to avoid hamstringing the new FCC Chairman (acting or otherwise) is for Commissioner Rosenworcel to take a brief hiatus from the Commission. This is unfortunate, but better than the alternative." The groups "fully support" an eventual Rosenworcel reconfirmation that could happen as soon as March, they said: "In the interim, Chairman Wheeler could shift Rosenworcel's staff to regular agency positions. This would make it easy for her to reconstitute her office when she returns to the Commission, without her staff missing a paycheck."
Other conservative bloggers started attacking McConnell. "McConnell's move to hand over control of the FCC so his staffer can get an appointment [to FERC] is treasonous to the American people, the Republican Party and to President-elect Trump," wrote Joe Hoft at The Gateway Pundit, fearing Democratic control of the internet. The bloggers at America's Freedom Fighters also fixated on the issue in a post identifying McConnell's supposed actions as "nasty" and dangerous. "Her reconfirmation would block Trump's ability to nominate both [Mark] Jamison and [Jeff] Eisenach," warned Breitbart News' Tom Ciccotta, naming two American Enterprise Institute scholars on Trump's FCC transition landing team.
'Rather Silly'?
TechFreedom's letter "is rather silly," said Public Knowledge Senior Vice President Harold Feld. "There is no way under existing law and proceeding to nominate and confirm a 'third Republican' to take over in the next Congress after Wheeler leaves. Nor does anyone in reality simply appoint a random FCC Commissioner without vetting.
Also, why would Republicans and the Trump administration let Obama appoint the third Republican?" As for the broader deadline fears, the groups "do not seem to understand how the calculus has shifted politically with the Republicans winning the election," Feld added. "When it seemed likely that the Republicans might lose the White House but keep the Senate, there was value in refusing to reconfirm Rosenworcel because it would drop the FCC down to 2-2 and deadlock the Democrats. With Republicans in charge of both the Senate and the White House, any deadlock is going to be highly transient -- a few months at most. So we're not talking a lot of advantage to Republicans to force a 2-1." Acting FCC chairs rarely pursue controversial items anyway, Feld said, citing the acting chairmanship of Michael Copps and protocol dictating that Copps await the incoming chair's priorities. He suspects the same from Pai or O'Rielly in the GOP acting chair role next year: "Why piss off the future chair by trying to ram something through?"
"It is unacceptable that this confirmation remains in limbo," said New America Open Technology Institute policy counsel Josh Stager, invoking the earlier McConnell/Reid deal. "Republicans backed out of the deal only after O'Rielly was confirmed. It was a flat-out betrayal. Republicans have lost all credibility on this issue and they should approach any potential Rosenworcel vote with humility."
"News flash: outside FCC-ville, the FCC is not the center of the universe, and FCC matters are not first on the Senate's To-Do list," emailed Net Competition Chairman Scott Cleland, whose group receives ISP funding. "Congress asked the current FCC to stand down and Congressional Republican leaders are coordinating closely with the Trump Administration Transition Team. They are more than capable of deciding what is in their joint best interests going forward."
"A primary job at the FCC should be overturning Wheeler's overreaches, not rewarding him with continued power," Giovanetti told us. "Republicans should make it very uncomfortable for him to do anything other than resign, and then they should then appoint a principled conservative reformer like Indiana [State] Sen. Brandt Hershman as a dramatic break from the errors of the last eight years." This publication first reported that Hershman may be a pick for FCC chairman.
"From the perspective of Republicans in the Senate, rather than radical right wing think tanks, the question is whether to lock in folks you know and had a hand in appointing," said Feld. "For McConnell, it's a question of whether to offer a fairly low-cost olive branch to Schumer or whether to wipe the slate clean and wait for Trump to make his own picks."