President-elect Joe Biden hasn’t even assumed office yet, and it’s already time for him to reach across the aisle and say with sincere force, “c’mon man!”
Along with combating a once-in-a-generation plague and a severe economic recession, cleaning up Ajit Pai’s FCC is a necessary early step for the Biden administration to get the country back on track. On Wednesday, that effort encountered a setback. At a hearing for the Senate Commerce Committee, members voted 14-12 along party lines to advance the nomination of Nathan Simington to become an FCC commissioner. The last-minute nomination of Simington by President Trump was rammed through after the re-nomination of Republican FCC Commissioner Michael O’Rielly was abruptly pulled in August.
The FCC is typically controlled by the party that occupies the White House. Regulations dictate that no more than three members of the panel can be from the same party, and the president chooses the chair. The balance of the new FCC is on track to have two Republicans and two Democrats, but if Senate Majority Leader Mitch McConnell’s track record tells us anything, there’s no guarantee that Biden’s nominee to head the agency will even get a hearing.
But the most disturbing issue at hand is that Simington appears to be a saboteur in the making. O’Rielly’s nomination came to an end this summer after he questioned whether the FCC even has the legal authority to implement Trump’s executive order tasking the agency with redefining the meaning Section 230—a statute that provides web services with a liability shield for content created by third-parties. Trump’s order was received by critics as a long-shot effort at repealing the statute, which the president has either misunderstood as being responsible for the censorship of conservatives online or simply sees as a convenient tool to screw with his enemies who fact-check his tweets. Simington is believed to be the author of Trump’s order.
At today’s hearing, Democrats opposed Simington’s nomination with ranking member Sen. Maria Cantwell pointing out the Trump administration’s retaliation against O’Rielly and Simington’s unspecified misrepresentations about his involvement in the Section 230 executive order as reasons that his nomination should be nullified. “He actively and aggressively sought national media personalities to explicitly help in putting direct pressure on the FCC to move forward on the administration’s Section 230 petition,” Cantwell said. “So this involvement to me sounds significant and I do not support his nomination.”
The Democrats argued that the pandemic has made a functioning FCC more important than ever as millions of Americans rely on remote work to make a living and big tech eyes bigger profits and more consolidation.
But Republicans are focused on keeping the FCC that former Verizon lawyer Ajit Pai built. Pai lied and cheated his way to a repeal of net neutrality and telecoms have barely had time to kick the tires on new strategies to milk their customers for extra cash. His tenure has been marked by efforts to misinform the public and make mergers great again.
Now that Pai is out, telecoms need a new man on the inside. As Vice first reported, the telco-backed group Americans for Tax Reform made its feelings clear that Simington is the man for the job in a letter to McConnell. Republican uber-lobbyist Grover Norquist wrote in the letter that he understands Senate floor time in the lame-duck session is limited but confirming Simington would be, in his view, “the most economically beneficial use of Congress’s time.” Norquist explained that a failure to confirm his nomination would leave Biden with a 2-1 Democratic majority at the FCC on day one of his administration. But the big business group sees a 2-2 FCC as a way to “forestall billions in economic damage.” Notice the letter never mentions a chairman or the possibility of a 3-2 vote at any point. That’s because it could be at least two years before that happens if Mitch pulls off his old obstructionist playbook.
Speaking with Axios earlier this month, former FCC adviser Gigi Sohn said, “the Senate Majority Leader has been very clear he wants to get more judges through—is jamming up the FCC really a priority for Republicans?” We’re going to find out.