Democratic efforts to cling to power at FCC are doomed to fail

With Trump’s victory, control of the Federal Communications Commission will shift to Republicans. It’s not a matter of if, but when.

Historically, such transitions have been routine. When the White House changes hands, FCC chairmen — as with other independent agencies — resign on or before Inauguration Day. This allows the new president to fill that seat.

{mosads}Exactly what that fresh start looks like depends on the situation at the agency. Sometimes it means a 2-2 deadlock — until the Senate can confirm a third commissioner. But if another soon-to-be-minority commissioner is dropping off the commission anyway, the new administration will take control on day one.

That’s what will happen at the FCC — unless the Senate reconfirms outgoing Democratic Commissioner Jessica Rosenworcel before adjourning. A deal is brewing.

Democrats claim it’s a fair trade, because Republican Ajit Pai would also be reconfirmed. But his tenure at the commission lasts for another year, so Republicans have nothing to gain from reconfirming either now — and much to lose.

If Rosenworcel were reconfirmed now, and the famously stubborn Wheeler decided to stay on, Democrats would maintain a majority until Democrat Mignon Clyburn could be replaced on July 1. Trump would likely name Pai Acting Chairman but he’d be unable to command a majority for over five months — an unprecedented situation.

Even if Wheeler resigned this week, reconfirming Rosenworcel would mean essentially the same thing: FCC paralysis.

Wheeler has only himself to blame for this situation. Rosenworcel’s reconfirmation has languished in the Senate for a year and a half because Wheeler repeatedly, petulantly refused to promise to resign if a Republican won the White House — making it impossible for Republicans to reconfirm her. In spiting Rosenworcel, whose independence he clearly resents, Wheeler put himself, and Democrats, in a terrible bind.

Wheeler has only one card left to play: his terrible reputation among Republicans. He could insist that, if they don’t reconfirm Rosenworcel, he’ll stay on the commission. Wouldn’t they rather have her?

Staying on would mean eating his own words: in August, when defending his right to shove through his agenda before the election, he crowed (about the 2012 election), “elections do have consequences.” Might Wheeler be willing to go down as a flagrant hypocrite? Maybe he doesn’t mind. He’s already shoved through more 3-2 partisan votes than took place in the last quarter century.

But Wheeler has a weak hand — and knows it. Yes, he could break with convention and stay on — until June 2018 — but the fallout could be cataclysmic for Democrats.

Wheeler won’t want to stay on indefinitely. It would become ever more humiliating. But whenever he finally goes, Republicans could leave his seat empty indefinitely. So Wheeler would be trapped.

Outrageous? Hyper-partisan? Blame Harry Reid! Ending the filibuster for agency nominations means the minority party can no longer force action on their own nominations by insisting they be paired with a majority nominee. Senate Republicans have the votes to reconfirm Pai and confirm a third Republican whenever they get around to it.

It gets worse. Clyburn could be replaced at any time after July 1. Since a deal struck by Clinton and Dole after the 1994 election, the president has allowed the Senate opposition leader to pick minority commissioners. But without the Senate filibuster, it’s not clear the deal will survive. Trump could pick minority commissioners — who don’t even have to be Democrats. By law, they just can’t be Republicans.

Senate Republicans might hesitate to use their own “nuclear option”: they probably have more to lose by being denied a voice at Democratic-led commissions. But they can certainly make a credible threat to use it just at the FCC if Wheeler refuses to stand aside.

In short, Republicans hold all the cards. Wheeler will blink. Senate Republicans would be suckers to reconfirm Rosenworcel now.

A 2-2 deadlock is not bipartisanship. There are far better ways to start the new Congress: Republicans can make clear that they’ll happily pair Jessica with a third Republican and vote on both (and Pai) ASAP. So the FCC could go from 2-1 to 3-2 by March. Rosenworcel would take a brief hiatus from the commission. Her staff could stay on, though, so she’d have no trouble picking up where she left off.

More importantly, Republicans at the FCC and in Congress can do what they’ve been doing for years: offering to dialogue with Democrats to build consensus around much-needed reforms. None of that requires allowing Democrats to tie up the commission for five months — or sabotaging the long and sorely needed process of FCC reform before it even started.

Berin Szóka is president of TechFreedom, which led a coalition letter to Senate leaders on this issue on Monday.

Views expressed by contributors are their own and are not the views of The Hill.