White House Race Casts Shadow Over Net Neutrality Negotiations

The changeover in White House administration “provides an incentive, yeah, because the idea that this [FCC ruling] could be changed, it’s not permanent when the administration leaves office, or you get a new FCC, I think just adds to the cloud of uncertainty that surrounds this issue,” Thune said of legislative negotiating with Democrats, “and makes it more problematic for investment and all the good things that have come out of the Internet and the light-touch approach that we’ve had now for the past two decades.”

Thune wants Democrats to join him in legislation. No Democrats have backed the draft bill he released in January, which would codify net neutrality rules while limiting FCC authority. But discussions continue.

Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, fears what a GOP White House would do. The FCC is an independent agency but presidents appoint FCC chairmen of their party. The agency issued its two net neutrality orders under the administration of outgoing President Barack Obama, in February and earlier, in 2010.

“It’s fair to say that there’s not a Republican running who’s in favor of net neutrality, either as a legislative proposal or in terms of an FCC action,” Schatz said in an interview. “The voters are going to see, especially young voters, that one party is on the right side of history when it comes to the Internet and one party is looking backward.” Schatz said he believes the presidential race won’t affect Hill negotiation on Thune’s legislation but that it will affect how voters see both parties. “It’s in everybody’s interest to have this settled before 2016,” Schatz added.

Contenders Emerging

Three GOP senators announced White House bids -- Sens. Marco Rubio of Florida and Ted Cruz of Texas, both members of the Commerce Committee, and Rand Paul of Kentucky. Hillary Clinton, a former secretary of state, senator from New York and first lady, is running for the Democratic nomination. The contenders are split on net neutrality along partisan lines, with Republicans particularly incensed at the Communications Act Title II reclassification of broadband in the FCC’s latest order.

Clinton backs net neutrality protections and would have voted for the FCC’s February order, she affirmed in February. The FCC commissioners “have to have a hook” to justify the agency’s rules, and Title II is “the only hook they’ve got,” she said. “If there were another hook, it would come out of a modern 21st-century telecom technology act, and we don’t have that and we’re not likely to get it.”

The administration’s net neutrality position is “not going to shift under Hillary,” Senate Commerce Committee ranking member Bill Nelson, D-Fla., told us. Nelson announced his backing for Clinton’s presidential bid early this week. “I’m sure that there are people who oppose [net neutrality protections] but they look at it like it’s either this or that,” said Nelson, who has discussed the possibility of net neutrality legislation with Thune for months and joined him for a symbolic budget resolution on the topic last month. “I’m going to see if we can get a bipartisan agreement going forward. There’s already been a lot of agreement that three months ago you didn’t think was possible. Stay tuned.”

Rubio blasted “several significant problems” with the FCC order in a March 17 op-ed. Cruz and Rubio both attacked FCC Chairman Tom Wheeler at a March oversight hearing. Cruz suggested the order is lawless, worrying about regulation of broadband rates, and now touts opposition to Title II on his campaign website. Paul has slammed the order, as has Jeb Bush, a former Florida governor widely seen as interested in the Republican nomination. None has outlined strategies for any alternative or specific means of undoing the FCC order. Cruz will make a statement once he weighs all legislative options, a Cruz spokesman said. A Rubio spokeswoman declined to comment, pointing to the op-ed.

“The FCC under a Republican administration would take a much lighter touch and I think frankly there would be great relief across the board if that were to happen,” said Senate Communications Subcommittee Chairman Roger Wicker, R-Miss. “It’s hard to say what will happen but voters will decide on other issues, broader, higher priority issues, but I do think a Republican president would return to a less heavy-handed approach.” He doubted this race affects current negotiating on legislation.

2016 Challenges

The 2016 election “casts a shadow, unfortunately, on probably everything that we do around here in the foreseeable future,” Thune said of the political climate. “There’s a lot of things that we can do in the bucket of things that we can pass to put on the president’s desk to get signed into law, good government type of things that we can get done. But these big-ticket issues that are very controversial are obviously going to get litigated a lot on the presidential campaign trail. And that certainly, I suppose, doesn’t make it any easier to get things passed around here. But I hope people will look at the big picture and realize that all this legal uncertainty that will happen now, with all the litigation that’s coming inevitably, is not a good place to be, and we’re in a position to do something about that if we can just get our heads together and legislate in a way that makes sense and helps solve the problem.”

“The FCC has spoken” and “that result should not depend on the presidential race,” said Sen. Richard Blumenthal, D-Conn., a defender of the agency’s order. “I’m assuming that net neutrality moves forward, will survive the court challenge and the next president will keep it.”

Sen. Roy Blunt, R-Mo., said it's “highly likely that any new FCC will take a different view of this than the current net neutrality rule,” emphasizing what he considered influence from the current White House at the root of the FCC’s order. He said Wheeler and Obama initially had different positions, which Wheeler has disputed. Blunt doubts any legislation can move currently due to Obama’s veto pen -- whether that would be a veto of a Congressional Review Act resolution of disapproval or broader open Internet legislation that Thune wants: “While that’s all a good idea, I would assume the president will stop any of that from happening,” Blunt told us. “And that all of those things probably make it not the biggest issue in 2016 but it could create a reason for presidential candidates to be discussing in 2016 and then I would expect a new look at this after the election.”

Thune, entering the same Senate subway car as Commerce members Maria Cantwell, D-Wash., and Claire McCaskill, D-Mo., said the two Democrats should join him in legislation. “We’re right behind you, John!” McCaskill said with a laugh, prompting a sardonic thanks from Thune. “You just get right up there on net neutrality,” McCaskill continued. “You’ll be fine. There’s no crosswinds there.” Cantwell joked Thune should stand out there and pick a target, and Thune remarked about taking "those bullets” associated with net neutrality.

“There’s not really ongoing discussions,” McCaskill told us later of bipartisan negotiation throughout Commerce. “I think everybody is waiting to plow through all of the material. And now that all the lawsuits have been filed, we want to plow through the lawsuits. I don’t sense that there’s a lot of cross discussion right now going on.” She “hasn’t heard from the White House at all,” she said.