Path Narrows for Rosenworcel Reconfirmation, Prompting Likely FCC Departure by Early January

“I just don’t see it happening between now and the end of the year,” Senate Commerce Committee Chairman John Thune, R-S.D., said in an interview Thursday. “The clock’s running out.”

Reid and Senate Majority Leader Mitch McConnell, R-Ky., were negotiating last week into this one on a possible nominations deal that would have likely addressed Rosenworcel. Thune confirmed last week and earlier this week that Republicans would have wanted to wrap in FCC Commissioner Ajit Pai’s reconfirmation and secure a Wheeler commitment to step down. A Federal Energy Regulatory Commission nominee was involved in what some believed would be a cloture petition. The White House hadn't formally renominated Pai but that process could have been “expedited,” Thune said Monday. Senators could leave Washington as early as Friday if they find a way forward on a continuing resolution to fund the government. If not Friday, observers expect the chamber wouldn't remain for more than an additional legislative day.

Thune told us Thursday such a nominations package “probably” would require a cloture vote. “That’s one of the problems, that yeah, we just don’t have time to do all this now,” he said. “In terms of the requirements that would have to be met in order for that to move forward, it’s probably something you want to talk to the leader’s office about. … Wheeler’s indications are important and helpful, obviously. We want to make sure that as soon as we can next year, that the commission can hit the ground running and that the new administration is in a position to name the fifth commissioner.”

Senate Majority Whip John Cornyn, R-Texas, was “not aware” of any pending cloture filing on nominations. “I think we’re running out of time,” said Cornyn, second-ranking Republican in the chamber and in control of its floor time, in an interview Thursday about filing for cloture.

A McConnell spokesman told us he had no nominations announcements. He also pointed out Sen. Sherrod Brown, D-Ohio, was blocking all unanimous consent requests at the time.

Some Democrats continued to show frustration at new negotiations. They said Rosenworcel’s confirmation should be guaranteed as part of an earlier deal between Reid and McConnell that reconfirmed Commissioner Mike O’Rielly last Congress. Incoming Senate Minority Leader Chuck Schumer, D-N.Y., called that a complicating factor, speaking earlier this week (see 1612060055).

“We’re no longer negotiating -- we already cut the deal,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, in an interview Thursday, expressing familiarity with talk of Pai and a FERC nominee involved in a possible deal. “My position’s the same that it’s always been: There was a deal a long time ago, and they should stick with the deal. There should be no new deal, because the commitment was made to get her confirmed. And they just have to live up to their end of the bargain.”

Some Republicans also object to a new deal. A mix of conservative groups slammed the possibility recently (see 1612050056). Sen. Ron Johnson, R-Wis., “supports efforts to ensure a 2-1 Republican majority at the FCC so that we can begin to roll back the burdensome regulations it recently issued,” a spokesman told us. “He looks forward to working with the Republicans at the FCC and his colleagues in the Senate to reverse President [Barack] Obama’s harmful regulations on broadband service providers that treat the Internet as a public utility.”

House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., said at an event Wednesday she objects to the reconfirmation (see 1612070040). She was recently named transition executive committee vice chair for President-elect Donald Trump, and Thune recently indicated the White House and Trump transition team may be part of deal discussions. “I’ve done what a lot of people do -- I weigh in and make my opinion known,” Blackburn told us Thursday when asked if she is part of the Rosenworcel discussions.

GOP Senate staffers doubt Rosenworcel will make it. One told us anything’s possible but doubted a path forward. A different Republican Senate staffer agreed and focused on the lack of commitment from Wheeler for most of the year as a big factor. That lack of a pledge was long believed to be a factor in the GOP holds preventing Rosenworcel’s advance. That staffer was unaware of any formal floor vote ever being held on an FCC commissioner, and while dubious given the timing, said deals are made at the end of the year and conceded a slim chance at work.

The matter of Wheeler's agency departure also came up in the questions for the record after the September Senate Commerce oversight hearing, an exchange made public this week. "Chairman Wheeler, in March of this year, I publicly asked you whether you would resign from the FCC at the end of President Obama’s term, but you did not provide a clear response at that time," Thune told Wheeler. "Since then, however, you have privately assured me you would indeed resign after the election. Will you now publicly commit to resigning from the FCC at the end of President Obama’s term, unless explicitly asked to stay on by the next president?" Wheeler's response didn't provide details on any public statement of resignation: "As I said during our private conversation and at the September Senate Commerce Committee Oversight Hearing, I will cooperate fully with the new administration to assure a smooth transition at the FCC."

Rosenworcel wouldn't have to leave the FCC immediately, observers said. One former senior FCC official said the Senate is expected to officially adjourn sine die on Jan. 3 and gavel back in 30 seconds later to prevent any Obama administration recess appointments. This would mean Rosenworcel can stay in office until Jan. 3, the former official said. That interpretation matched what Georgetown University Institute for Public Representation Senior Counselor Andrew Schwartzman understood from the statute. “The bottom line is that if I understand it correctly, Jessica would serve until just before the new Congress convenes on Jan. 3,” he told us.

Thune affirmed that if the possible leadership deal falls apart, he would want the Commerce Committee to receive and process a Pai renomination promptly in 2017 to help get the agency up and running. “That would help,” he told us. Pai’s term expired this summer and he could sit on the commission until Congress adjourns sine die next year without congressional action.