Reducing nomination battles by restoring Congress

By Daniel Lyons

After 10 months of silence, the Joe Biden administration nominated long-time progressive telecom champion Gigi Sohn to fill the open seat on the Federal Communications Commission (FCC). Like that of Lina Khan to the Federal Trade Commission, the nomination has generated controversy. A prominent Wall Street Journal editorial criticized the choice, while Senator Lindsey Graham (R-SC) — who has a track record of supporting Democratic picks even in the face of profound policy disagreements — vowed to “do everything in [his] power” to defeat Sohn’s nomination.

Agency nomination battles such as this are increasingly grabbing headlines. In a sense, this heat and light is unsurprising. Sohn’s confirmation would create a three-member Democratic majority at the FCC , which would allow the commission to accomplish a wish list of progressive policy initiatives — a task that sounds suspiciously like “legislating.” One way to decrease the importance of these nomination fights is to reduce the power of agencies by shifting the locus of legislative decision-making back where it belongs — in Congress.

The FCC headquarters in Washington, DC, via Reuters

What’s at stake

Sohn’s supporters and opponents alike have highlighted the stakes of filling the open FCC seat. Andrew Schwartzman of the Benton Institute explains that “Chair Jessica Rosenworcel and commissioners Geoffrey Starks and Gigi Sohn will create an FCC ‘dream team’ that can implement a progressive telecommunications policy agenda for the coming decades.” Most significantly, this includes determining how the nation’s broadband networks should be regulated. A Democratic majority is likely to repeal the 2017 Restoring Internet Freedom order and re-impose net neutrality rules on broadband providers. This would continue a decades-long ping pong match within the FCC that stems from the fact that Congress has not meaningfully spoken on this issue since 1996, when broadband was in its infancy — creating a power vacuum that multiple FCC commissioners have filled in wildly disparate ways.

Legislation, not administration

It’s not supposed to be this way. Article I, Section 1 of the Constitution — the document’s very first substantive provision — establishes that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The people, through their respective elected officials, deliberate together to decide when and how law should limit individual liberty to promote the common good. This is an awesome power. In Federalist 51, James Madison recognized that the legislature “necessarily predominates” over the other branches, and explained that for this reason, the Constitution puts additional safeguards on the legislative process, such as requiring bills to pass both the Senate and the House of Representatives and survive the veto process before they can be enacted into laws that legally alter the people’s rights and responsibilities.

Today, most policy decisions are made not on Capitol Hill, but in agency bureaucracies that sidestep the carefully controlled checks and balances that the founders placed on legislative power. When President Barack Obama famously responded to congressional intransigence by announcing he would govern by pen and phone, he was nodding to a decades-long transfer of decision-making power from the legislative branch to the administrative state — a transfer that arguably makes such intransigence more likely by reducing the need for bipartisan compromise.

Benefits of legislation

There are significant benefits to congressional decision-making. At a basic level, it increases political accountability by placing key decisions in the hands of members directly elected by the public. But more significantly, congressional action can increase legitimacy. The legislative process makes more room for bipartisan compromise, creating a broader consensus in favor of more gradual legal change that has buy-in from a broader swath of the political spectrum.

This is the story of the 1996 Telecommunications Act, Congress’s last significant foray into the telecom space. It was the result of a multi-year conversation among stakeholders across the political spectrum that helped set the stage for increased competition, and passed by a vote of 414–16. This is also how most experts agree the net neutrality debate should be resolved — and how it very nearly was resolved in late 2014 when Republicans offered to join Democrats on a compromise bill that would have established binding net neutrality requirements in exchange for clarifying that broadband networks are not Title II common carriers. But Democrats balked, preferring to use the FCC to adopt a more aggressive net neutrality regime that was repealed a few years later when Republicans came into power.

Restoring Congress to its proper role would help reduce the political temperature in Washington. Clear legislation would give agencies better guidance, which would minimize the wild policy swings from administration to administration and reduce the stakes of each nomination — and each presidential election. Congress’s abdication of power to the administrative state is a significant driver of our hyperpoliticized environment. A rejuvenated legislative process would make law more stable and predictable, making space for more evolutionary, rather than revolutionary, policy change.

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