Grassley Hold May Be Only Start of Problems for FCC Nominees

Some observers said Rosenworcel and Pai’s problems extend beyond Grassley, with Senate Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., at odds on a host of nominations. Some Republicans remain unhappy that President Barack Obama made controversial recess appointments at the start of the year, including that of Richard Cordray as head of the new Consumer Financial Protection Bureau (CD Jan 6 p1). One upset Republican is Sen. Mike Lee of Utah who has pledged that he will force a floor vote on every nomination rather than allow unanimous consent votes, Lee spokesman Brian Phillips said. Lee plans to vote against every nominee on the floor, though only a simple majority is required there, Phillips said.

A top communications lawyer predicted leaders in the Senate will make a run at trying to move the nominations before the Easter break. “They still have the Grassley problem and I think they still have a problem with McConnell and Reid. … It’s still pretty iffy.” Odds are less than 50/50 the Senate will move before the Easter recess, the official said. “I think eventually it will happen.” The recent movement on judicial nominations was a “good sign” but no guarantee that the Pai and Rosenworcel confirmations will be successful this year, a broadcast industry lobbyist said.

Industry officials noted that under the worst case scenario, the FCC could be left with only two commissioners and no quorum to take action on anything if Pai and Rosenworcel aren’t confirmed this year and a Republican wins the White House. “Obviously, I think that we would be a lot better off if these guys were advanced,” an industry official said. A Republican president could immediately designate Commissioner Robert McDowell as chairman, but if current Chairman Julius Genachowski leaves, the FCC would be left with only two members, the source noted: “If Julius Genachowski were to step down, it would drop below the quorum.” A former FCC official said “that'll never happen. Julius can’t leave until this thing is fixed.” A two-person commission would increase the chances of a recess appointment, noted Andrew Schwartzman, Media Access Project senior vice president.

The FCC’s LightSquared documents given to House Commerce should be shared with Grassley and anyone else who wants to see them, said House Communications Subcommittee Ranking Member Anna Eshoo, D-Calif. “There aren’t any secrets in this,” Eshoo said in an interview. “It’s public [and] people should know.” While she didn’t sign the committee’s letter requesting documents, Eshoo doesn’t object to it and will analyze the results, she said. “I don’t have any reason to think that anyone would purposely bias something, but I think that it is important … to get in the weeds on this to understand exactly how they did make the decision.” Subcommittee Chairman Greg Walden, R-Ore., reportedly said last week that he would share the documents with Grassley.

While the FCC has said it will cooperate with House Commerce, the FCC could still seek to prevent Grassley and other offices from gaining access to the documents as part of informal negotiations with the Commerce committee, though that may be difficult, said a Senate aide. The FCC has a couple other ways to slow or prevent the release of potentially damaging documents, the aide said. For instance, the FCC may claim a request to be too broad or could treat it as a Freedom of Information Act request, allowing it to avoid giving up pre-decisional materials, he said. The Justice Department likely won’t play a direct role deciding the FCC’s response because the commission is independent, but the FCC may consult with the administration on how to respond, the Senate aide said.

The House Commerce request was significant for many reasons, the largest of which is the committee’s subpoena power if the agency were to stonewall the committee on something, said the Senate aide. “It would be very very odd [for the FCC] to say no” to Committee Chairman Fred Upton, R-Mich., he said. “It would just elevate the clash,” he said. The aide likened the process to “two parties in litigation but with no judge."

The release of LightSquared documents to the House “does give Grassley an out if he wants to take it, which is a big out,” said a former FCC and Senate staffer. “I could definitely see a path to this getting done awfully quickly or by the summer. If it goes beyond that you have to wonder if some group of Republicans has decided nothing happens until after the election."

"The longer the confirmation stalemate persists, the closer we get to the election, it seems less likely Senate Republicans will agree to allow across-the-board votes on agency nominees,” said Randolph May, president of the Free State Foundation. “President Obama’s recess appointments exacerbated the situation. But in cases like the FCC, where two nominees from different parties are paired, perhaps those can be shaken loose in an act of comity to show some bipartisanship.”

"When the dust settles,” Rosenworcel and Pai are likely to be confirmed, said Jeff Silva, analyst at Medley Global Advisors. “I suspect in light of recent regulatory action on LightSquared and apparent diplomatic efforts on Capitol Hill that Sen. Grassley’s hold on the two FCC nominees could become somewhat less of a risk than was the case previously,” Silva said. “While the Grassley hold remains a roadblock to Senate confirmation, my sense is the fate of the two very qualified and highly regarded nominees could ultimately turn on whether Republican leadership can be persuaded to walk back a little over Obama recess-appointment anger to enable the FCC nominees and perhaps a few other choice nominations to break through while holding the line on others.”