Senate Confirmation of Starks, Carr to FCC May Be Difficult Before Election, Thune Says
Senate confirmation of Democratic FCC nominee Geoffrey Starks and Commissioner Brendan Carr for a full five-year term ending in 2023 under unanimous consent will be difficult before the November election, lawmakers and industry officials told us. The FCC would in that scenario remain a 3-1 Republican majority until Congress’ lame duck session at the earliest, with Commissioner Jessica Rosenworcel the lone Democrat. It’s unlikely Starks as a successor to former Commissioner Mignon Clyburn would substantially affect upcoming proceedings, but the absence of a second FCC Democrat means the loss of an additional opposition voice, industry officials said.
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The Senate didn’t include Carr and Starks as part of a pre-Labor Day nominations package despite a push by Commerce Committee Chairman John Thune, R-S.D. He has been aiming to fast-track the two since June (see 1808230040).
“It gets harder in the near term” post-Labor Day to get Carr, Starks and others through the Senate “because of the election,” Thune told us: “It’s probably going to be tough” because of the campaign “around the corner and partisan tensions running high.” There’s bipartisan support for moving the two FCC nominees together but packaging their confirmations has remained difficult because of negotiations to balance a broader package, he said. “There’s always historically a pretty significant opportunity” to move noncontroversial executive branch nominees during the lame duck, so Carr and Starks would be much easier to advance then, Thune said.
“Many of these nominations issues are being negotiated directly between” Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., “over what will be subject to floor time” and what can be moved under UC, said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii. Schumer is interested in getting Starks through but there have been stumbling blocks on including nominees to the Consumer Product Safety Commission, National Labor Relations Board and other agencies in a package, Thune said.
Bargaining Chips
Democrats remain confident the Senate will confirm Starks and Carr as a pair despite the repeated delays in that process, Schatz told us. “I don’t think there’s any reason for anyone to die on that particular hill.”
“We understand that we’re not going to have a majority” at the FCC even with Starks’ confirmation, but Democrats don’t want the commission’s 3-1 GOP edge to continue in the long term, Schatz said. Senate Democrats pushed last year to hold over a confirmation vote on Carr’s second term to ensure there would be a Republican to pair with a Democratic successor to Clyburn amid chatter about her then-potential retirement (see 1708030060).
“With such a contentious and significant midterm election coming up, everyone is hoarding bargaining chips on the Hill,” said communications lawyer Frank Montero of Fletcher Heald. “It is unlikely to impact [FCC Chairman Ajit] Pai’s agenda. He has his majority and he’s on a roll.” The bigger impact could be for Rosenworcel, Montero said. “Without Starks, it gives her the opportunity to stand out as the sole defender and dissenter-in-chief at the FCC. Played the right way, that could give her the opportunity to shine. Commissioner Clyburn played that role very well in the early months of the Pai administration.”
Scheduling confirmation votes often comes down to discussions between Senate majority and minority leaders, said Public Knowledge Vice President Chris Lewis. “The implication of not having a full commission is that we are missing a unique and different perspective at the FCC,” Lewis said. “All votes are not strictly partisan and commissioners of the same party can have different views on issues small and large, from spectrum policy to mergers. Although the lowest in seniority, you never know when that fifth commissioner might take an important stand or introduce a nuanced opinion that moves the group.”
When Starks is eventually confirmed makes no difference, said TechFreedom President Berin Szoka: “The chorus of opposition to Pai in the media and among activist groups by foundations is already far louder than any second commissioner would be.” The absence of Starks is unlikely to “materially affect the outcome of any significant decisions,” agreed Free State Foundation President Randolph May. “To the extent there is a partisan divide on major issues, Commissioner Rosenworcel has shown herself to be a pretty forceful advocate for the views and positions that most likely would coincide with those of Starks.”
Second Democrat
Clyburn said having another viewpoint on the FCC is always beneficial.
“Regardless of how the vote falls on a particular docket, issue or decision one voice can make and has made a difference,” Clyburn said. “I never considered it arbitrary that the commission is made up of five individuals. That number encourages collaboration but allows for differentiation. Any number short of five over an extended period of time is less than ideal.”
Former Commissioner Michael Copps and others said it’s important to have a second Democrat even if it doesn’t change the outcome of party-line votes where the three Republican members guarantee majority passage. Rosenworcel is seen as a forceful advocate on a range of issues since her reconfirmation last year, particularly since Clyburn left in June (see 1806070024).
“With today's imperious FCC majority, policy outcomes won't change much," said Copps, now at Common Cause. "But it's always better to have a full commission and another voice.”
“The nominations process for virtually all sub-cabinet posts is severely impaired due to today’s epic dysfunction in Washington,” said former Commissioner Robert McDowell, now at Cooley. “Senate leaders of both parties plus the White House have to prioritize which nominees are the most important to them. Nominees to agencies that have a quorum, and can therefore function, start to look less vital and can become orphaned.”
The FCC is supposed to have five members “and needs to be at full strength given the many important issues it’s working on,” said Georgetown Center for Business and Public Policy Project Director Larry Downes. “Even commissioners not in a given majority play an important role in the regulatory process.”
“In general, we’d prefer to see a full commission” no matter the partisan composition but “it’s no secret that our views tend to line up” with those expressed by Democratic commissioners, said Free Press Policy Director Matt Wood: “We’d like to see Starks confirmed since we would expect him to be a better defender of consumers” than Republican commissioners have been. Starks would “add to the conversation” much as Pai and Commissioner Mike O’Rielly did when they were the minority dissenters during ex-Chairman Tom Wheeler’s term, Wood said: “It’s always good to have a fuller opposition” even if it doesn’t change the outcome.