Pai, Rosenworcel Face Another Roadblock on Way to Confirmation

Sen. Chuck Grassley, R-Iowa, has already put a hold on the FCC nominations because Chairman Julius Genachowski hasn’t offered up documents Grassley asked for on the FCC waiver allowing LightSquared to offer terrestrial service using mobile satellite service spectrum.

Senate Republicans are especially irked about the recent appointments because they say the Senate had never officially recessed and continues to hold pro forma meetings, government and industry officials said. Similar scenarios have played out before. In the early days of the George W. Bush presidency the fight over judges -- especially Charles Pickering, Sr., a nominee for the 5th U.S. Circuit Court of Appeals -- contributed to a nearly year-long delay in the Senate’s confirmation of Jonathan Adelstein as an FCC commissioner.

"Having a recess appointment rammed through while the Senate has been in pro forma session, and there’s a legal question … could start a nasty confirmation war,” predicted a government official.

"In the short term, the Senate Republicans will probably block all confirmations to protest the recess appointments,” said Andrew Schwartzman, senior vice president of the Media Access Project. “It is hard to predict how long the logjam will last; there could always be a deal. If I were forced to guess, I'd say that it may be six or seven months before the new commissioners get on board."

Presidents frequently make recess appointments, sometimes on similarly controversial nominations, a presidential prerogative under Article II, Section 2 of the Constitution. Bush used a recess appointment to install John Bolton as ambassador to the United Nations in 2005. In 2010, Obama used a recess appointment to make James Cole deputy attorney general, despite Senate questions about his performance as independent monitor of AIG. Much less common are appointments made when the Senate isn’t in a traditional recess. Recess appointments expire at the end of the next session of Congress, in this case January of 2013.

Senate Minority Leader Mitch McConnell said that, in nominating Cordray, Obama “arrogantly circumvented the American people” by appointing someone to head an agency despite deep reservations by Senate Republicans. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” he said. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.” Obama also appointed three members to the National Labor Relations Board, which brought similar criticism from Republicans.

Obama’s recess appointments could be used as an “excuse” to block other pending nominations, former Democratic Sen. Byron Dorgan said in an interview. That 2012 is an election year makes confirming nominees even more difficult, he said. Confirming FCC nominees is “very important,” Dorgan said. “You have an FCC with only three people at this point.” It’s “been hard to move any nominations for a number of years” due to increased partisanship in the Congress, Dorgan said. “There are holds put on all kinds of nominations these days. Even if there are no holds, they want to extract a limb and a tooth to allow one to proceed.” Dorgan said he believes the “nominations process is just another example of what’s happened to the Senate in a larger sense: dramatically increased partisanship, gridlock, obstruction. And the result is it’s very hard to get anything done."

The outrage over Obama’s recess appointments “makes all [the nominations] more difficult, probably including FCC,” a Senate GOP aide said. It would be “extremely” surprising if Senate Republicans let any nominations through until they work out an understanding with the president reining in his ability to make recess appointments, a former Senate Republican leadership aide said. Hijacking the nominations process is the GOP’s best leverage against the president, the former aide said. To save their public image, the Republicans may not completely block nominations, but they will at least slow confirmations to a “dribble,” the former aide said.

"I suspect the Republican backlash over the Cordray recess appointment may indeed make it more difficult for Obama’s two FCC nominees to win Senate confirmation -- at least in the near term -- if the GOP retaliates by blocking all presidential appointments going forward,” said Jeff Silva, analyst at Medley Global Advisors. “If partisan warfare breaks out in a serious way over the Cordray appointment, there is bound to be even greater risk and uncertainty for the two FCC nominees than there already was with respect to the Grassley LightSquared situation. There appeared to be possible work-around solutions to the latter matter, whereas the Cordray recess appointment represents a much bigger and more complicated political fight that doesn’t appear to lend itself to an amicable resolution anytime soon."

Public Knowledge Legal Director Harold Feld said “there is a small chance” that if Senate Democrats and Republicans work out a deal on Corday it could help move the FCC nominations forward. “This is, indeed, exactly the sort of fight that can stall even relatively uncontroversial appointments,” Feld said. “On the other hand, it is unclear whether it makes much practical difference. There does not appear to be any sign of progress in the effort to get Grassley to lift his hold. More importantly, with an election in November, Republicans are more and more likely to block all confirmations on general principle."

But a top Washington lawyer said Thursday that Pai and Rosenworcel have the advantage of being considered as paired nominees. “Republicans like Pai,” the lawyer said. “They may not want to confirm anyone for a while, but on the other hand [by delaying] they're not confirming a guy that Mitch McConnell personally likes."

"It seems likely this will have a ripple effect on Ajit’s and Jessica’s confirmations,” a telecom industry lobbyist said. “And if so, Julius [Genachowski] is the clear winner.” That’s because “he gets to continue running the FCC with a much more manageable 2-1 majority,” and “he doesn’t have to fork over his LightSquared documents to Sen. Grassley any time soon."

Pai and Rosenworcel already seemed to be caught in a protracted confirmation process even before the recess appointment blow up, a telecom industry lobbyist said. The White House, FCC and Senate do not appear to be pushing for quick confirmation, the lobbyist said. So far, only Grassley, has stood in the way of FCC nominations. Genachowski could resolve the hold by sending Grassley documents about communications among the FCC, White House and LightSquared investor Harbinger. But the FCC chairman has so far declined. The White House, which frequently communicates with Genachowski, could resolve the Grassley hold by asking Genachowski to give Grassley the documents. And, since Genachowski’s stated objection to Grassley was that he answered only to committees of jurisdiction, Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., could resolve the Grassley hold by himself asking the FCC chairman for the documents. Rockefeller met with Grassley in November, and on multiple occasions last month assured reporters the matter would be resolved (CD Dec 7 p1). But Grassley’s hold still stood when most senators left town for the year.

Some longtime FCC watchers could think of no other recent appointments besides Adelstein’s to the commission that were held up for many months by the Senate. One former Democratic commissioner doubted the GOP ill will engendered by the recess appointments will affect much when Pai and Rosenworcel are approved by the Senate. But unless Grassley and Rockefeller can work out a deal over the LightSquared documents, it may still be a while before the two FCC nominees are approved, said former FCC commissioner Henry Rivera, now a communications lawyer at Wiley Rein. “While the commission is very important to you and me and to the entities it regulates, its importance is relegated to a rather small universe of people and institutions. Therefore, I doubt that the current nominees will find themselves caught up in -- or be the subject of -- the political sturm and drang attending the CFPB appointment. These are not Supreme Court justice nominees, and I see little political benefit to being confrontational with the Senate about them.”