Senate Faces Shortened Timeline, Outside Pressure on Lame-Duck Sohn Confirmation

FCC nominee Gigi Sohn’s Senate supporters face what’s likely to be an even more compressed timeline to confirm her during the busy lame-duck session because the chamber will probably need to delay any push until after the Dec. 6 Georgia runoff election between Commerce Committee Democrat Raphael Warnock and Republican challenger Herschel Walker, said panel Chair Maria Cantwell, D-Wash., and others in interviews. Cantwell and other Sohn supporters believe the nominee’s confirmation prospects improved significantly because Democrats at least cemented a 50-50 tie in the chamber following the midterm election, but opponents continue to insist confirmation isn't a certainty. Some Sohn supporters also acknowledge continued Democratic Senate control means there’s no longer the same urgency to press for approving her this year (see 2209130065).

“We’re hoping to have 51” Senate Democrats in January if Warnock prevails in the Georgia runoff, so “my hope” is that Sohn’s chances have improved, Cantwell said. Warnock and all 49 other Democrats would need to be available to vote in person for Sohn to stand a chance of confirmation in the current Congress due to expectations that all 50 Republicans will vote against her. Sohn’s confirmation process has been stalled more than eight months since Senate Commerce tied 14-14 on advancing her to the floor (see 2203030070). During a Thursday webinar (see 2211170089), Incompas CEO Chip Pickering cited the Georgia runoff as being important to Sohn’s prospects.

Warnock was absent from the Senate for much of last week but appeared Wednesday to cast an initial procedural vote to proceed to the Respect for Marriage Act (HR-8404). He isn’t expected to be on Capitol Hill much before the Dec. 6 runoff, which “makes it hard, but not impossible” for the Senate to take up Sohn’s confirmation before that happens, Cantwell said: The Senate is expected to be in session for only eight more days before the runoff election’s completion, including Dec. 6, and “there are a lot of things we’re doing” during that time, she said.

“We’re going to see what we can do” before January with the existing 50-50 split, Cantwell said: “What we want is to get [Sohn] confirmed” regardless of timing, but “this has been a long process punctuated by lots of extraordinary events.” Cantwell cited the frequent Democratic absences due to COVID-19 infection and other incidents that she has previously raised as the reason the Senate hasn’t already confirmed the nominee. Lobbyists believe Senate Democratic leaders have been reluctant to begin the process to bring Sohn to the floor while a handful of senators in the caucus remain publicly uncommitted on the nominee.

Undecideds Mum

Sohn’s supporters expect at least two of the undecided Democrats -- Sens. Catherine Cortez Masto of Nevada and Mark Kelly of Arizona -- to shift to supporting Sohn because they won reelection and no longer face it becoming a campaign issue. Supporters believe it will be tougher to convince another Democratic holdout, Sen. Joe Manchin of West Virginia, due to his reputation for bucking the caucus and what could prove to be a tough 2024 reelection fight.

All three Democrats for now are remaining tight-lipped. “I’m involved in so many things right now, I’ve got to be honest with you, I haven’t looked into any of that” lately, Manchin told us. Cortez Masto deflected, telling us she didn’t anticipate Sohn’s nomination coming up “any time soon.” Kelly’s office didn’t comment.

“We’ve already seen significant pressure” on Cortez Masto and other Democratic undecideds to now back Sohn, including the letter the Communications Workers of America and other unions wrote to Cantwell and Senate Majority Leader Chuck Schumer, D-N.Y., earlier in the week seeking the nominee’s swift confirmation (see 2211150067), said New Street’s Blair Levin. “Presumably” Cortez Masto and Kelly will quickly move to back the nominee “because their electoral problems are now behind them,” but it’s less clear whether the positive outcome for Democrats will motivate Manchin and some other potential undecideds.

Manchin has “obviously already made the calculation that it’s better for him” to continue to hold back on Sohn due to the politics of his potential 2024 reelection bid “and I don’t see anything in the election results that would have changed that” calculus, said West Virginia University political science professor Jason MacDonald. “There’s no upside for him to support her and the relevant stakeholders” in the communications sector and the Fraternal Order of Police “have signaled to him that there may be a downside." Manchin continues to face a potential Democratic primary challenge from the liberal wing of the party, but “I don’t think what he does on” Sohn “will affect their” opposition to him, MacDonald said.

'Basic Math'

“I hope” Sohn’s prospects have improved because Democrats have maintained control of the Senate, said Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “We should have already had a vote” on the nominee “and I’m hopeful that we’ll have a vote” during the lame duck. “We need a fully functioning FCC, especially with all the work that’s going on right now” to improve broadband connectivity, he told us: “We already have a majority” in the Senate with 50 seats, so there’s no need to wait for it to potentially increase to 51 during the next Congress.

Sohn has “certainly got a better chance” at confirmation because of the Democrats’ Senate win, said House Communications Subcommittee Chairman Mike Doyle, D-Pa. “We’ve got one more race to win” in Georgia “and if we can get that 51st seat, that might really put things over the top for” Sohn.

Top Senate Commerce Republicans remain dubious that Sohn’s prospects have improved because of the election’s outcome. “I don’t think” there’s been a shift in the nominee’s favor, said panel ranking member Roger Wicker of Mississippi. “It is up to those Democrats who’ve had serious doubts” about Sohn in the past, “but I think there’s still a majority in the Senate, including some few Democrats and all the Republicans, who do not believe she’s a good” nominee.

“It’s the same basic math” on Sohn as before the election no matter how Warnock fares in the runoff, said Senate Communications ranking member John Thune, R-S.D. “We’ll see” if some of the undecided Democrats shift in the weeks ahead.

'Why Wait?'

“We’ve been working relentlessly with Congress to get a confirmation vote” on Sohn, White House Principal Deputy Press Secretary Olivia Dalton emailed us: “The majority of the FCC hangs in the balance, and we want Sohn’s talents, expertise and experience at the Commission.” Schumer’s office didn’t comment.

Sohn’s prospects have undoubtedly improved, “but I don’t think the election outcome matters as much as it might have if the Democrats hadn’t” won, Levin said. Schumer knows the Democrats will keep the Senate majority in January, "so his strategy is to do those things now that he can’t do without a Democratic House,” which favors an agenda heavy on passing HR-8404 and other legislation, “and to do things to clean up business for the year” like FY 2023 appropriations. Major news organizations called House control Wednesday for the Republicans, forecasting the party will hold a slim majority in the chamber.

Schumer is “going to have time next year to do judges” and other Biden administration appointments, but Sohn’s confirmation could be a “higher priority because we’ve already had almost two years” of 2-2 “stalemate at the FCC,” Levin said. "If Warnock wins, Schumer has even more flexibility” to confirm Sohn or other Democratic FCC nominees next year “on an expedited basis.” Senate Commerce and other committees would have clear Democratic majorities in a 51-49 chamber, so there would be a lower chance of tied votes on nominees and leaders wouldn’t have to go through the extra steps needed to discharge a panel’s jurisdiction over a nominee to move them to the floor, Levin said.

Sohn’s “chances now are as good as they’ve ever been,” especially since those Democratic undecideds who were in tough reelection fights “pulled through,” said Free Press Vice President-Policy Matt Wood. “We don’t think” Sohn’s nomination “was controversial” and “we certainly don’t think there was any reason it should have been something that” Democratic senators “should have drawn heat for” during the campaign, “but now we’re beyond that.” The situation is going to remain “fluid” through the end of this Congress due to the 50-50 split, he said.

“There’s a downside” to waiting until the new Congress convenes to move on Sohn because she would have to go through the entire confirmation process again, Wood said: If Sohn “were to be renominated” in 2023 anyway, “then why wait and not do it now? There’s nothing wrong with doing business now” since Senate Republicans fast-tracked FCC Commissioner Nathan Simington’s confirmation after the 2020 election, in the weeks immediately before they lost their majority (see 2012080067).

Sohn’s confirmation “is a key priority for CWA members during” the lame duck, said Senior Director-Government Affairs and Policy Shane Larson: “The FCC needs a fully seated commission to make critical decisions," so "stalling until the next Congress is not an option. The time for a vote is now.” The Leadership Conference on Civil and Human Rights also urged Schumer Thursday to prioritize the “long-overdue confirmations” of Sohn and some other Biden nominees.

Taxpayers Protection Alliance Vice President-Policy Patrick Hedger echoed Senate Republicans’ skepticism. “She would have moved already if there were zero Senate Democrats who had concerns about her,” Hedger told us: “It’s pretty clear that there are some Democrats who behind the scenes do have concerns with her” and while some of them were only undecided for 2022 election-related reasons, “looking ahead to the next cycle the Senate map is pretty bad for Democrats” and those incumbents “gearing up for their own reelection” may now reevaluate their support for her confirmation.

The 2022 results were a loss “for both parties,” with the GOP on track to gain a slender majority in the House “and that’s not exactly a mandate for any controversial nominee’s confirmation,” Hedger said. “There’s a lot of things in the lame duck that Democrats want to get done that are significantly more important priorities than confirming” Sohn. A “more moderate” FCC nominee would be more likely to gain at least some Republican support “and there’s no reason to take a risk, especially with what’s still going to be a close Senate,” he said.