Sen McCain’s Poor Health May Help Senate Democrats Push Forward With Net Neutrality Maneuver

Eric Lieberman | Associate Editor

Democrats are jockeying to reverse a decision by the current Federal Communications Commission in order to save net neutrality rules through a legislative maneuver known as the Congressional Review Act (CRA). But some, especially those on the Republican side, are viewing the Democrats’ push as discourteous since Arizona Republican Sen. John McCain has been absent from government proceedings due to poor health, making Democrats’ pathway to success (at least in one chamber) more likely.

With Massachusetts Democratic Sen. Ed Markey leading the charge, the CRA resolution would provide congressional disapproval for a policy officially enacted by the FCC under Chairman Ajit Pai in December 2017. The federal agency at that time repealed internet regulations a differently composed FCC administration established in 2015. Senate Democrats now want to reverse the FCC’s undoing, reinstating the powers that place the federal government as a primary overseer of internet superintendence. Specifically, they want to ensure broadband providers and cable companies don’t block or throttle web traffic or create different, inordinate levels of payments for access.

“Keeping the internet free from corporate interference is vital to protecting free speech, consumer choice, and access to public information,” Ohio Democratic Sen. Sherrod Brown told The Daily Caller News Foundation.

Usually, to pass the CRA resolution, Democrats would need one more vote to tip the scale in their favor. Currently, 50 senators — 47 Democrats, two Independents and one Republican, Maine Sen. Susan Collins — support the measure. But because of McCain’s unavailability, the simple majority minimum goes from 51 to 50. If McCain, who appears unlikely to return to the oh-so familiar Congressional floor, isn’t ready to attend a now-imminent voting session, the pro-net neutrality coalition would satisfy the necessary threshold.

The proponents of the CRA resolution intend to bring it up soon — likely next week — but at least by the end of June 12. Satisfying the requirement of at least 30 members, Markey and 32 other Democrats submitted a discharge petition Wednesday to trigger an earlier vote — something a top official for Senate Majority Leader Mitch McConnell, who typically handles such procedural decisions, said is out of their control.

“Under the rules, that’s not something they need our permission to schedule,” Don Stewart, deputy chief of staff to McConnell, told TheDCNF. “The Leader strongly opposes the Democrats’ proposal to have Washington regulate the internet under laws intended for rotary phone technology.”

Regardless of the merits or pitfalls of the regulations, some see the Democrats’ push as unfair or at least unseemly.

“The Senate is going to work its will on the matter but if the circumstances play out that the resolution only passes because of the absence of Senator McCain, an American hero facing a life-threatening disease, I would find that troubling,” Republican FCC Commissioner Michael O’Rielly told TheDCNF. “That’s not the Senate I remember, as I vividly recall former Senator Fritz Hollings requesting a Senate Commerce Committee vote be re-opened, against his interests, after its conclusion to allow an absent member to then vote.”

Democratic Sen. Chris Coons recently committed a gracious act similar to Hollings’. The Senate Foreign Relations Committee was voting in April to come up with a recommendation in confirming then-CIA Director Mike Pompeo as Secretary of State following Rex Tillerson’s dismissal. Rarely has a secretary of state or any official been given an unfavorable recommendation, but Pompeo was set to receive one due to Georgia Republican Sen. Johnny Isakson’s absence and some defectors of the party-line. Isakson couldn’t vote by proxy (remotely) due to committee rules forbidding ties to be decided as such. Coons, realizing the situation, chose to vote “present” rather than “nay,” yielding the result of a favorable recommendation (rather than a “no recommendation”) — what it almost certainly would have been with Isakson present.

Isakson, a “good friend” of Coons, was reportedly fighting back tears when he heard of the gesture. He was unable to make the vote because he was in his home state, delivering the eulogy at a funeral for a longtime friend.

Such types of action, referred to as a “live pair,” were more popular in the 1980s and early 1990s, according to Rachel Bovard, senior policy director for the Conservative Partnership Institute. “Basically, if one of the senators in the delegation was indisposed, the other senator would vote present so it would be a wash,” she said. “Doesn’t happen much anymore.”

An FCC official, who asked to remain anonymous, told TheDCNF it certainly seems like a calculated move.

“While the Democrats in the Senate have until July to force a vote on the CRA, they have chosen this specific time frame for two reasons,” the official said. “First, it’s an attempt to distract the scrutiny big tech firms (close allies of Democrats) have been facing in recent weeks after the Facebook privacy scandals. Second, because Democrats are taking advantage of McCain’s cancer to push through a political agenda.”

But some, like Sen. Brown, are conducting themselves as if they still need another vote, potentially showing an indirect eschewal of McCain’s involvement in the situation.

“We have 50 of the 51 votes needed to turn this decision around, and I’d encourage my colleagues on the fence to do a little soul searching,” Brown said. “A vote against net neutrality is a vote in favor of allowing companies to take the reins and shake down consumers for every last penny.”

O’Rielly expressed a desire for an end to the bureaucratic back-and-forth — as several others have — by working out a bill that ostensibly meets half-way (placing some limits or oversight over the industry in question but not as thoroughly or aggressively).

“In the end, the CRA tactics are just another hurdle to enacting sustainable legislation in the area,” O’Rielly said.

If the CRA passes the Senate, which now seems more likely with the petition to discharge it from committee and McCain’s illness, it would still have to pass the House, where Republican’s majority is even greater. President Donald Trump would also have to sign it even after supporting the FCC’s repeal. If it managed to pass the House and Trump chose to veto it, two-thirds of both chambers would be needed to overturn that revocation.

“This is particularly galling because if you really care about net neutrality (like Collins claims to be concerned with) you wouldn’t go down the CRA path,” the FCC official said. “Rather, you would force both sides to come to a legislative agreement by working on a bill” that actually has a chance.

Is there anything McCain, an opponent of the 2015 net neutrality rules, could do to help his party’s cause? If he was to retire — a big move for such a tenured public servant — would that stymie Democrats’ chances?

McCain resigning, particularly within the year, would mean the governor of his state, Republican Doug Ducey, would decide who fills the vacancy with the stipulation they remain from the same party as the outgoing lawmaker. The legislator assuming that position would then stay on until the end of McCain’s term, which ends in 2022.

Bovard recalls a situation in which then-Sen. Ted Kennedy had brain cancer and was largely absent from the chamber for a number of months — much like McCain. He was ultimately able to show up for a key vote, much to his congressional colleagues’ admiration and shock.

“The Senate [in general] does not allow proxy voting, so members actually have to be in the chamber to cast their vote,” Bovard explained.

McCain has made no indication he plans on stepping down anytime soon, and if such a heated debate like the one over net neutrality would change his mind is a dubious prospect.

But Democrats may not be making the situation any easier, as many, like Bovard, O’Rielly and others, argue they could be more accommodating as Coons and past lawmakers have been in the past.

Net neutrality is a hot-button issue. As the 2018 elections approach, Democrats appear to want to go full steam ahead with one of their most powerful rallying cries. After all, Hawaii Democratic Sen. Brian Schatz said in December 2017 the issue is key for mobilizing voters for the fast-approaching midterms.

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