Hill Telecom Policy Uncertain as Congressional Control in Limbo; Warnock Faces Runoff

All but one of the members of the Senate Commerce and Judiciary committees considered in competitive races this year (see 2211070059) won reelection in the Tuesday midterm election, but a handful of veterans on the House Commerce and Judiciary panels went down to defeat. Democrats performed better than election forecasters predicted in many battleground races, with enough contests still uncalled Wednesday afternoon that all major news organizations remained unable to declare which party would control either the House or Senate in the 118th Congress. That uncertainty means the outlook for tech and telecom policymaking remains unclear, officials and observers said in interviews.

Sen. Raphael Warnock, D-Ga., was the only Commerce Committee member whose reelection bid remained undecided Wednesday. He was leading Republican Herschel Walker 49.2%-48.7%. The Georgia secretary of state’s office confirmed Walker and Warnock will move on to a Dec. 6 runoff election since neither got more than 50% of the Tuesday vote. Warnock spearheaded a push last year to allocate $5 billion for device vouchers as part of the Build Back Better Act budget reconciliation package (see 2109170053). “Whether we need to work all night, through tomorrow, or for four more weeks, we will do what we need to and bring this home,” Warnock tweeted Wednesday morning. “I didn’t come here to lose,” Walker said at a Tuesday night election party.

Two Senate Commerce members -- Ron Johnson, R-Wis., and Mike Lee, R-Utah -- won reelection after relatively close contests. Six others easily won, as expected: Consumer Protection Subcommittee Chairman Richard Blumenthal, D-Conn.; Communications Subcommittee ranking member John Thune, R-S.D.; Tammy Duckworth, D-Ill.; Jerry Moran, R-Kan.; Brian Schatz, D-Hawaii; and Todd Young, R-Ind.

Johnson prevailed over Wisconsin Democratic Lt. Gov. Mandela Barnes by just over 27,000 votes, 50.4%-49.4%. Johnson was one of four Commerce members who asked to be recorded as no votes on FCC Chairwoman Jessica Rosenworcel when the panel advanced her reconfirmation in December (see 2112010043). News organizations called the Utah race for Lee, who is also Senate Antitrust Subcommittee ranking member, though only 64% of the vote was counted by Wednesday. Lee led independent candidate Evan McMullin 55%-41%. Lee often opposed the tech agenda espoused by Senate Antitrust Chairwoman Amy Klobuchar, D-Minn., but the two also found compromise on less controversial items (see 2206150066).

Mixed Results

Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, defended his seat against Democrat Michael Franken, a retired Navy vice admiral, 56%-44%. Grassley is a key Republican on tech and antitrust issues and has partnered with Klobuchar on legislation to rein in Big Tech (see 2208010063 and 2209220077). Judiciary members John Kennedy, R-La., and Alex Padilla, D-Calif., also easily won reelection.

Senate Intelligence Committee Vice Chairman Marco Rubio, R-Fla., defeated Democratic challenger Rep. Val Demings 58%-41%. Rubio has been active on cybersecurity and national security, most notably as a vocal opponent of Chinese social media app TikTok (see 2207060003). Demings, a House Judiciary Committee member, has been a vocal proponent for Democrats’ tech legislation efforts in the House.

Vote tallies continued Wednesday for two Democratic Senate incumbents who have been undecided on FCC nominee Gigi Sohn (see 2205050050). Sen. Mark Kelly of Arizona led Republican Blake Masters by more than 90,000 votes, 51.4%-46.4%, with 72% of votes counted. Former Nevada Republican Attorney General Adam Laxalt led Sen. Catherine Cortez Masto by more than 22,000 votes, 49.9%-47.2%, with 80% of votes tabulated. Laxalt during the campaign repeatedly cited concerns about Sohn and Cortez Masto’s potential support for the nominee (see 2209160057). Sohn’s supporters hope both incumbents will back Sohn when the Senate returns next week so the chamber can confirm her during the lame-duck session (see 2209130065).

Just one House Communications Subcommittee member, Tom O’Halleran, D-Ariz., lost reelection. Republican Eli Crane won 54%-46%. Fellow subpanel member Angie Craig, D-Minn., prevailed 51%-46% over Republican Tyler Kistner. Potentially vulnerable House Commerce Committee member Annie Kuster, D-N.H., held onto her seat. Another panel Democrat, Kim Schrier of Washington, was leading Republican Matt Larkin by more than 11,000 votes, 53%-47%, with 58% of the vote in.

House IP Subcommittee member Rep. Steve Chabot, R-Ohio, lost to Democratic challenger Greg Landsman 52.5%-47.5%. Chabot has often been at odds with House Judiciary Democrats’ tech agenda (see 2106230063 and 2105050065). House IP member Rep. Greg Stanton, D-Ariz., led Republican challenger Kelly Cooper 57%-43% with 65% of the vote in. Stanton was notable in 2021 for his opposition to House Judiciary Committee advancement of tech antitrust bills, aligning with California Democrats. Stanton is also a member of the New Democrat Coalition, which hasn’t always been on board with the tech agenda of House Antitrust Subcommittee Chairman David Cicilline, D-R.I.

South Dakota PSC Chairman Chris Nelson (R) and incumbents on several other states' utility commissions easily won reelection. Races in three other states remained uncalled. Nelson outpolled Democratic challenger Jeff Barth 69%-31%. North Dakota PSC Republican incumbent Julie Fedorchak won 71%-29% over Democrat Melanie Moniz. Fellow GOP incumbent Sheri Haugen-Hoffart prevailed by the same margin over Democrat Trygve Hammer. Republican Kim David easily beat Democrat Warigia Margaret Bowman 64%-31% for a seat on the Oklahoma Corporation Commission. Nebraska PSC Republicans Eric Kamler and Kevin Stocker didn’t face Democratic opponents. Alabama PSC Republican incumbents Jeremy Oden and Chris Beeker won by similar 84%-16% margins over Libertarian challengers Ron Bishop and Laura Lane.

Arizona Corporation Commission Democratic incumbent Sandra Kennedy was trailing in her reelection bid with 67% of votes counted. Republican candidates Nick Myers and Kevin Thompson were both leading in the race for two of the five ACC seats with 26% of the vote each. Kennedy had less than 25% of the vote, while fellow Democrat Lauren Kuby drew 23%. Louisiana PSC Democratic incumbent Lambert Boissiere will face Democrat Davante Lewis in a Dec. 10 runoff water failing to get more than 50% of the vote. Boissiere led Lewis 43%-18% Wednesday. Republican Ann Bukacek was leading Democrat John Repke 56%-43% to replace retiring GOP incumbent Brad Johnson on the Montana PSC. Democrat Randy Pinocci won unopposed for another commission seat.

FCC Oversight

Additional congressional scrutiny of the FCC is likely if the GOP gains even a slender majority in either the House or Senate, communications policy observers said. Some believe the FCC's ongoing 2-2 partisan split could blunt some GOP criticism of the agency.

“Voters rejected drama in this unusual midterm and Washington would be wise to heed the call,” said High Tech Forum founder Richard Bennett. “The FCC has largely been insulated from politics by the administration’s decisions to move big money and controversial issues to NTIA, along with refraining to push the Senate “to confirm” Sohn.

Much depends on whether President Joe Biden uses a recess appointment to put Sohn on the FCC, emailed TechFreedom General Counsel Jim Dunstan. “If that doesn't happen, then I think there won't be a whole lot of FCC oversight done in this next Congress because most of what the FCC will do will have to be on a consensus basis” due to the 2-2 split. If Sohn “gets the recess appointment, and the FCC immediately dives back into a [Communications Act] Title II net neutrality proceeding, then I could see some significant oversight hearings, especially if what the FCC proposes goes beyond” its rescinded 2015 rules “and especially if rate regulation for broadband … is proposed,” Dunstan said.

If control of Congress is split, “grand legislative deals on controversial issues, such as net neutrality, are even more unlikely than before,” said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Joe Kane. “The most significant change will be the potential for a heavier hand in House oversight of the FCC, but that largely depends on the level of interest and substantive engagement by the new majority.”