Wheeler Seen as Likely to Stay on as FCC Chairman if Clinton is Elected
If Hillary Clinton wins the presidency, Tom Wheeler could remain FCC chairman into the summer of 2017, judging from the limited history of similar transitions, and on recent speculation about his plans. Former Chairman Reed Hundt is among those who said they see a prolonged Wheeler chairmanship as likely. Industry lawyers and former FCC officials, Democratic and Republican, said the outlook has evolved in recent weeks. Just a month ago, many said they expected Wheeler to leave in January, but they say it now looks likely he will keep his job well into 2017 should Clinton win to finish work left undone after she is sworn in Jan. 20. Clinton is ahead in most polls.
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The usual pattern when there is a change of parties is a quick transition between two administrations, with a commissioner in the new majority party serving in an acting capacity while the former chairman heads for the door. But since World War II, neither party has been able to hold onto the presidency for more than two terms, with the exception of the Republicans from 1981-93 when George H.W. Bush succeeded Ronald Reagan. In that example, Reagan’s second chairman, Dennis Patrick, stayed on after Bush was inaugurated until Aug. 7, 1989, when the Senate confirmed Al Sikes, Bush’s choice. The FCC wasn't always as political as it is today. For example, Richard Wiley, a Republican, stayed on chairman late into the first year of Democrat Jimmy Carter’s presidency.
Wheeler has faced pressure, particularly from Senate Commerce Committee Chairman John Thune, R-S.D., to say he will leave when a new president is sworn in (see 1608220045), which Republicans see as clearing a path for confirming Democrat Jessica Rosenworcel to a second term as commissioner. Wheeler repeatedly has refused to make that commitment.
“As he has said previously, Chairman Wheeler will work with the incoming administration to facilitate a logical transition,” a spokeswoman emailed. “The Chairman has repeatedly said that he wants Commissioner Rosenworcel to be confirmed as soon as possible. ” A Thune spokesman declined to comment.
The statement that Wheeler needs to resign is “ahistorical” and “an example of the fractured relationship” between the administration and Congress, Hundt told us. Wheeler should say “what he has said, that I serve at the pleasure of the president,” Hundt said. “If it is President Clinton, it would be wrong for [Wheeler], it would be inappropriate, atraditional, unusual for him to precipitously resign, and based on the record she might very well ask him to stay.”
A wireless industry official involved in past presidential transition teams said Clinton’s team is just being put together and if she is elected it won’t focus on the FCC chairman for a while, with many more high-profile, more “existential” choices to make first, starting with secretary of state and secretary of defense. A second official who has been on a transition team said the choice is ultimately up to the new president, who will weigh many variables in deciding whether to keep any administration official in place even if only temporarily.
“Clinton has put out a tech and telecom agenda that is a clear continuation of both the FCC’s and the Obama administration’s current policy agenda,” said Michael Calabrese, director of the Wireless Future Program at New America. “With so many other positions to fill and the desire to focus on bigger policy priorities during a first 100 days, the option to leave a successful FCC chairman such as Wheeler in place would be quite appealing, not only to her top staff but probably to leading Hill Democrats as well. It would also give the new administration time to formulate its own agenda before deciding who would be best suited to lead it for the remainder of her term.”
Berin Szoka, president of TechFreedom, countered Hundt’s arguments. “No one has said Wheeler needs to resign upon or before Clinton's inauguration -- only that he needs to promise to resign if Trump wins, the day before Trump takes office, or to tender his resignation to Hillary so she can decide whether to keep him on,” Szoka told us. If the Senate confirms Rosenworcel to another term and Trump wins, “Wheeler staying on would allow Democrats to control the agency even after losing the White House,” he said. “Obviously, Republicans just aren't going to do that.”
"As a matter of law, it's Wheeler's prerogative to stay on until his term expires,” said Randolph May, president of the Free State Foundation. “And, as a matter of law, it's the Senate's prerogative not to confirm Jessica Rosenworcel. So maybe that's the way it will play out and at least the result would not be inconsistent with the legal regime." If not reconfirmed, Rosenworcel must leave when the current Congress adjourns "sine die."
Ex-Commissioner Robert McDowell agreed the best analogy is 1989, when Patrick stayed on under Bush. “The chairman does serve at the pleasure of the president and Tom's term runs until June 30, 2018,” said McDowell, now at Wiley Rein. “So technically, he can stay on as long as the new president desires. But this will become more clear after Nov. 8. Other political cross-currents could come into play. Also, Congress constructed the statute so individual commissioners can't be fired altogether from the commission by the president, in theory, to preserve agency independence. What happens in practice is another matter."
The custom of chairmen resigning is a way to ensure that the incoming administration will not have a minority on the FCC after the election, said Harold Feld, senior vice president at Public Knowledge. “If there is a change in administration rather than a change in party, this doesn't happen so there is no reason for the chairman to step down until the administration can appoint a new chairman.”
Feld criticized congressional Republicans for seeking a Wheeler commitment before they would vote on Rosenworcel. “Bluntly, I am fairly certain that it is fear of Clinton winning, rather than Trump winning and Wheeler staying on anyway, that prompted Republicans to renege on their deal with the Democrats to confirm Rosenworcel after confirming [Mike] O'Rielly separately,” Feld said. “Republicans want a deadlocked commission for as long as Wheeler stays on as chair.”
Typically, an FCC chairman serves less than four years, with all recent presidents who served two terms naming two chairmen. It generally takes several months for an administration to pick a new chair, for security checks to run their course and for the Senate to hold a hearing and vote. Security checks take longer at the beginning of administration when there are more officials who need to be cleared by government investigators. President Barack Obama reportedly settled on his law school classmate Julius Genachowski as FCC chairman before Obama took office, but Genachowski wasn't confirmed by the Senate until June 25, 2009.