Kerry flip-flops on Congressional Review Act

Josh Peterson Tech Editor
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Massachusetts Democratic Sen. John Kerry was for the Congressional Review Act before he was against it. The senator called upon his colleagues Friday to resist the very same congressional measure he advocated use of in 2003 against the Federal Communications Commission.

The Congressional Review Act gives Congress the power to review and overturn an agency’s regulatory action. The House passed a resolution of disapproval — H.J. RES. 37 — in April to overturn the FCC’s “Open Internet” rules, otherwise known as net neutrality. The Senate is set to vote on its own version, S.J. RES. 6, this week. The vote could come as early as Tuesday.

In a letter last week to colleagues, Kerry wrote that approval of a Republican measure to overturn the FCC’s regulations would “set the precedent that this Congress is prepared to deny independent regulators their ability to execute the law.”

“That would put at risk health and safety rules, environmental protections, workers rights and every other public protection that our agencies enforce that some in Congress do not like,” said Kerry.

The senator said that the decision about whether the FCC acted outside of its authority should be left to the courts. “Some have argued that the FCC acted outside of its legal authority in protecting the free flow of information on the Internet. A court will make that decision,” he wrote.

By contrast, Kerry claimed the decision in 2003 to loosen media ownership rules by the Republican-led FCC — then under the leadership of Chairman Michael Powell — was “a complete dereliction of duty” by the agency. Kerry, then a member of a Republican controlled Congress, called for use of the CRA to reverse the FCC action.

“Today’s wrongheaded vote by the Republican members of the FCC to loosen media ownership rules shows a dangerous indifference to the consolidation of power in the hands of a few large entities rather than promoting diversity and independence at the local level,” said Kerry.

When asked by TheDC whether Kerry’s statements against the upcoming vote reflected a partisan bias, Kerry spokesperson Whitney Smith responded, “The issue is bad policy not partisanship. In 2003, Senator Kerry and the majority of Congress believed loosening media ownership was bad policy and should not be left up to the courts, and therefore he and his colleagues went to the floor and said so.”

“As a staunch supporter of an open internet, Kerry believes that the FCC has enacted good, legal policy here and therefore sees no justification to employ the CRA,” said Smith.

“Those that support discriminatory treatment of Internet content and oppose the preservation of an open Internet are free to go to the floor to say so,” Smith noted. “But Senator Kerry fundamentally disagrees with that argument, and therefore disagrees on the CRA.”

In contrast, Maine Republican Sen. Olympia Snowe –- a supporter of net neutrality principles — is behind the resolution. Snowe wrote in a letter to colleagues Monday that the “FCC’s rules, which appear to be a parceling together of fragmented provisions in the telecommunications statute and last year’s DC Court’s Comcast decision, bring into question the FCC’s ability to effectively and legally develop a solid foundation for establishing network neutrality protections.”

Snowe said that congressional action to update current telecommunications law was the answer, not “hastily” produced regulations.

“My interest in protecting the fundamental rights of Internet users and businesses does not diminish my understanding of the importance of establishing proper policy that protects and encourages innovation to occur in all segments of the Internet supply chain, which is essential to the Internet’s continued health and growth,” said Snowe.