O'Rielly May Land Full Commissioner Term in Broader Package

“We’re all still hopeful” that O’Rielly’s renomination will move before the 113th Congress ends, Thune told us at the Capitol Monday night, “as part of a package that gets cleared.” Thune affirmed that the discussions concerned advancing O’Rielly, a Republican, this week, potentially by Wednesday, but couldn't specify a time frame: “It’s all kind of fluid.”

The Democratic-controlled Senate is in its final days before the new Republican-controlled Congress begins in January. Congress was initially expected to adjourn last Thursday, but battles over a $1.1-trillion omnibus funding package derailed that expectation. The House recessed last week, but the Senate is staying in session this week, with Senate Majority Leader Harry Reid, D-Nev., aggressively holding votes on high-profile Obama administration nominees, including some who are controversial and lack GOP backing. O’Rielly’s name hasn't been publicly mentioned as senators move forward with a schedule continuing into Wednesday and possibly even Thursday.

“Negotiations on an end-of-year nominations package are ongoing,” a Senate Democratic aide said Tuesday, declining to say whether O’Rielly may be included. A different Democratic Commerce Committee aide said the O’Rielly nomination hasn't been reported out of committee, and leadership determines who will be included in the nominations package. Thune is the No. 3 Republican in GOP Senate leadership.

Thune “continues to push to get O’Rielly’s renomination approved by the full Senate before it adjourns for the year,” his spokeswoman said Tuesday. “Discussions continue about what the end game would look like to achieve that goal. If his nomination is not approved this Congress, his nomination will need to be resubmitted next year and the Committee would report his nomination without delay.”

The Senate Commerce Committee first held a nomination hearing for O’Rielly, an ex-Hill staffer who has worked in both the Senate and House, in September 2013 and he was sworn in as commissioner that November. O’Rielly’s original nomination had been paired with that of FCC Chairman Tom Wheeler, a Democrat, and advanced by unanimous consent. He was filling out the term of ex-Commissioner Robert McDowell, now with Wiley Rein. That McDowell term expired June 30 (see 1407070078), and in October the White House nominated O’Rielly for his own five-year term as commissioner. He's empowered as a commissioner through the end of next year.

“It tends to be bipartisan at this point,” said McDowell, saying Senate Democrats want to advance their own nominees and through this “good-faith negotiation,” create a package including Republican ones as well. “Republican senators can wield some leverage here.” McDowell, when confirmed as a Republican commissioner in 2006, was grouped with several other officials rather than paired. He said he doubts O’Rielly would have an official pairing with a Democratic nominee given the “opportunity” now would be to include him in a “chunk” of nominees.

In early December, a Republican committee aide said Senate Republicans don't believe O’Rielly requires consideration in another Commerce hearing to advance out of committee and receive Senate approval (see 1412050032). Immediately after O’Rielly’s nomination for a full five-year term, the GOP aide hammered home Republicans’ desire to advance O’Rielly before the end of the lame-duck session, cautioning that the White House would need to renominate the commissioner again in the next Congress if not (see 1410100087).

“I haven’t been on that for a couple days,” Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., told us Monday. “There has to be a Democrat and a Republican, that’s always been our agreement.” He thinks the advancement is possible, he said.

Rockefeller said earlier this month he was working with his Republican counterparts to advance O’Rielly and said there were discussions about possible pairings of the O’Rielly renomination with a Democrat. He said O’Rielly was potentially going to be considered at a Dec. 9 Commerce executive session, but O’Rielly's name never made it onto that agenda.

A telecom industry lobbyist said it’s no sure deal there will even be a broader package of Democratic and Republican nominees advanced together but has heard about and tracked such a possibility. Plenty of questions are floating about it, he said. He mentioned the Senate rules that now require only a simple majority to advance nominees, creating less incentive for the majority to do such big packages. Democrats seem to be particularly interested in getting their more controversial nominees approved, the lobbyist said.

Commissioner Jessica Rosenworcel, a Democrat, faces the next term expiration, June 30. Commissioner Ajit Pai’s term won't expire for a year after that, Mignon Clyburn’s not until 2017, and Wheeler’s not until 2018. Commissioners sometimes leave before the end of their terms. Even if he is not reconfirmed by the Senate during the 113th Congress, O'Rielly can continue to serve until the adjournment of the 2015 session of Congress.

The initial confirmation process is time-consuming but reconfirmation less so, McDowell said, confident that O’Rielly will be reconfirmed next Congress if these negotiations fall through. “The nominee’s fate is in the hands of Senate leadership,” McDowell said. “I’m sure he would like to have it in his rearview mirror.”