The Senate today confirmed the appointment of Nathan Simington to the FCC, which with the imminent departure of Chairman Ajit Pai sets up the agency for years of deadlock unless Democrats take the Senate. The last-minute appointment breaks with political norms, and the vote was entirely on party lines after Democrats objected to the nomination.
Simington has been a senior adviser at the Commerce Department’s National Telecommunications and Information Administration, where recently he helped craft the public-relations effort there around Trump’s attacks on Section 230, the law that prevents companies like Twitter and Amazon from being liable for things posted on them by users. (The outgoing president primarily objects to the frequent labeling of his tweets as misleading or outright false.)
The rush to confirm a new Commissioner follows the unceremonious dumping of Mike O’Rielly, a Republican Commissioner who has generally fallen in line with this administration’s policies but made the fatal error of speaking out against the effort to change Section 230. Due to be nominated for another term, he was instead dropped in favor of Simington, who has demonstrated no scruple about using the FCC as a muzzle for social media.
Numerous Democratic senators objected to Simington, questioning his qualifications for the job. Senator Blumenthal (D-CT) noted that “during his confirmation hearing even the most basic questions about FCC issues seemed to trip [him] up,” while Sen. Mazie Hirono (D-HI) said his “only qualification is his eagerness to defend the president’s attacks on the First Amendment and Sec. 230.”
Indeed, considering his lack of experience, it seems to be purely for political purposes that Simington has been nominated and confirmed for a five-year term in such short order.
Traditionally what would happen at this point would be that O’Rielly would continue on until the new administration nominated and confirmed him along with its pick for a new chair and Democratic Commissioner (the FCC is balanced 3-2 in favor of the administration’s party, but is technically independent).
However, with Republicans as likely as not to control the Senate come January — depending entirely on the outcome of the run-off in Georgia — there is an opportunity here for the party to obstruct the FCC’s work by rushing a single nomination and confirmation, establishing a 2-2 tie that could be maintained by declining to confirm any nomination by the Biden administration.
In such a situation, the FCC would essentially be frozen. Without a majority, neither side would be able to pass rules and regulations, since it’s nearly certain that the opposing two Commissioners would vote against them. While some work could occur at the bureau level, and ordinary business like collecting fees and so on could happen, there would be no big moves like reestablishing net neutrality or establishing consumer protections from broadband companies. If desired, this deadlock could potentially last for years.
That’s not the only possible outcome, of course. Should the Democrats win the day in Georgia, the 50-50 split in the Senate, with ties broken by Vice President-elect Harris, would allow for them to confirm a full slate at this and other agencies. It’s also conceivable that even with control of the Senate, the Republicans could allow a nomination through in return for various concessions, like sympathetic appointees at other independent agencies.