GOP Eyes Simington Confirmation Next Week After Senate Commerce OK

Senate Republican leaders are eyeing a floor vote as soon as next week to confirm FCC nominee Nathan Simington, setting up what’s likely to be a partisan showdown over the prospect of a 2-2 commission deadlock at the start of President-elect Joe Biden's incoming administration. The Commerce Committee advanced Simington Wednesday, as expected (see 2012010064), on a 14-12 party-line vote. Senate Democrats are already watching the potential implications for Biden’s pick for the party’s third FCC seat, when Chairman Ajit Pai leaves Jan. 20 (see 2011300032).

Simington’s confirmation is very much “on our to-do list,” so a floor vote is likely “soon,” given the limited time left on Congress’ legislative calendar, Senate Majority Whip John Thune, R-S.D., told us. That could happen “next week, if, the good Lord willing, we’re not here the following week. But it could happen" the week of Dec. 13 if the Senate is still in session then. “Whenever” Majority Leader Mitch McConnell, R-Ky., feels there’s a good “opening to" hold votes on Simington, "I think we’ll plan on getting it done,” said Thune, who also chairs the Communications Subcommittee.

“I expect we’ll have the votes on the floor” to confirm Simington, given expectations that most or all of the 52 Republican senators will back him, Thune said. “We’ll find out soon” if that’s enough to overcome one or more Democrats placing holds, which would prevent the Senate from confirming Simington via unanimous consent. The chamber could overcome it by a simple majority vote. The main stumbling block was Commerce members “who had questions” about Simington’s positions, but those concerns are now “resolved,” Thune said.

Sen. Dan Sullivan of Alaska, Commerce Republicans’ earlier holdout (see 2011180064), ultimately voted for Simington. Sullivan's office didn’t comment. Lobbyists we spoke with indicated that Simington’s responses to Sullivan’s concerns about the FCC approach to Alaska high-cost USF matters helped sway the senator. Sullivan in 2018 temporarily blocked Senate confirmation of Commissioner Brendan Carr over the matter (see 1809120056).

“I have no idea” yet whether expected unified Democratic opposition and any crossover Republicans will be enough to block Simington, Senate Commerce ranking member Maria Cantwell, D-Wash., told us after the committee vote. At least three Republicans would have to join Democrats in voting against Simington.

“There have been some rumblings” about some Senate Republicans who might “potentially” oppose Simington on the floor but “nothing definite as yet,” said Sen. Richard Blumenthal, D-Conn., in an interview. Spokespeople for Senate Republicans who have recently been wild cards against President Donald Trump -- Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah -- didn’t comment on whether they would back Simington.

There remain “real questions about why” Trump chose Simington to displace sitting Commissioner Mike O’Rielly (see 2009150074), particularly given “his lack of experience with the FCC, its statutory responsibilities and many of the key issues at the agency,” Cantwell said during the Commerce meeting. Democrats have concerns about Simington’s “candor with the committee during his confirmation process” because of perceptions he downplayed his role as an NTIA senior adviser in shaping the agency’s petition for an FCC rulemaking on its Communications Decency Act Section 230 interpretation (see 2011240061), Cantwell said.

Blumenthal told Commerce he will “do everything I can to hold this nomination,” as he earlier threatened (see 2011100070), "and to oppose it because I think” Simington “lacks the qualifications and independence that are required of an FCC commissioner.” Trump appeared to name Simington “for one purpose, to support the president’s indefensible assault on the First Amendment” via the Section 230 rulemaking push, Blumenthal said. He criticized Republicans for “rushing” to confirm Simington in a bid to ensure a 2-2 FCC. “Perhaps the telecommunications and media companies want that type of deadlock,” Blumenthal said. “They may want” an FCC “that is absent and neutralized.”

Deadlock Concerns

Cantwell and Blumenthal told us they believe the prospect of FCC deadlock puts pressure on Biden to name his nominee for the Pai seat. “I hope they’re thinking very quickly about who they’re going to nominate,” Cantwell said. She doesn’t think Senate Republicans will indefinitely stall consideration of Biden’s nominee for the third Democratic slot. “I’m sure we’ll go through the confirmations process on whoever the next person is,” given long-standing Senate Commerce cooperation on nominees, Cantwell said.

“I’m concerned Simington is going forward without” being paired with any Democratic nominee, “which is traditionally the way these nominations have worked,” Blumenthal said. “There will be obstacles to confirming” Biden’s FCC nominee “without a pairing.” He cited the issue during the Commerce meeting, noting that Republicans held up Democratic Commissioner Jessica Rosenworcel’s reconfirmation in 2016 so she could be paired with a Trump nominee for a third Republican to succeed Democratic Chairman Tom Wheeler (see 1612120058).

Commerce Chairman Roger Wicker, R-Miss., and Thune told us they don’t intend to indefinitely hold up Biden's nominee to fill the Pai vacancy, though how they proceed will depend on who he picks. “I’m taking a wait-and-see approach,” Wicker said. “Those vacancies at some point will have to get filled,” but “it would have a lot to do with the nominee,” Thune said. “Our members recognize that when you have a change in administration, that presidents deserve to get their people confirmed, assuming they’re qualified and in the mainstream.” Senate Republicans “know that the full complement on the commission is five commissioners,” he said.

Blumenthal told us he wants Biden to name Rosenworcel as permanent FCC chair once he takes office, partly because she wouldn’t face an immediate Senate confirmation. Biden is widely expected to name Rosenworcel in January as acting chair. She faces several contenders to permanently lead the commission (see 2011160048).

“It would be easier” to make Rosenworcel permanent chair, given that she can remain at the FCC for another year without being reconfirmed, Blumenthal said. Rosenworcel’s term ended June 30, but she can remain through Jan. 3, 2022, unless the Senate confirms a replacement. She’s “an ideal choice” because she’s “super smart, experienced, insightful and courageous,” Blumenthal said. The Communications Workers of America backed Rosenworcel.

Rosenworcel “is very talented, and I would be very happy if she was chair,” Cantwell said. “But it’s up to” Biden to decide.