President Donald Trump's decision to withdraw his nomination of Michael O'Rielly, a Republican member of the U.S. Federal Communications Commission, for a new term has thrown into question the coming political balance-of-power and policy agenda at the agency.
Republicans on the commission currently hold a 3-2 majority, but that could change depending on the outcome of the November presidential election and whether someone is appointed to O'Rielly's seat by the end of the year. Without a 2020 appointment, which policy experts think is unlikely unless Trump reverses course on O'Rielly, the FCC would potentially be left with a 2-2 political split that would only be broken by whichever party wins the White House after the election.
No other commissioners have terms due to expire before 2022, though some speculate that Republican Chairman Ajit Pai may choose to leave the FCC if Democratic candidate Joe Biden wins the White House. If Biden won, he would choose a new chairman to lead the FCC, though Pai could remain on the commission until his term expires in July 2021.
Prior to the White House's announcement about withdrawing his nomination, O'Rielly — whose current term expires in January 2021 — had recently been confirmed by the U.S. Senate Commerce Committee for a term that would end in 2024. It was unclear whether the full Senate would have confirmed O'Rielly before the end of the year.
In response to the White House's withdrawal of O'Rielly's nomination, some U.S. Senate Republicans, including Senate Majority Leader Mitch McConnell, R-Ky., urged Trump to reverse course and reinstate it, according to a report by Communications Daily.
Two former FCC staffers who spoke to S&P Global Market Intelligence cast doubt on the ability of the Republican-controlled Senate to confirm a new candidate by the end of the year.
Blair Levin, a former FCC chief of staff who now works as policy advisor at New Street Research, does not believe there is enough time to confirm a new candidate. He also does not believe President Trump will change his mind.
"I don't know of any situation where senators expressing concerns ... has caused him [Trump] to reverse himself," said Levin, who previously worked for FCC Chairman Reed Hundt, a Democrat, during the Clinton administration.
Gigi Sohn, a former staffer for former Democratic FCC Chairman Tom Wheeler, agreed that the timing of a new nomination would be precarious, saying in an interview that getting a new nominee confirmed before the end of the year would be "impossible."
In a recent note to investors, New Street's Levin wrote that the move to withdraw O'Rielly's nomination could ultimately weaken Republicans' hand — both now and early next year.
"First, it may cause O'Rielly to either leave early or recuse himself, depriving [FCC] Chairman [Ajit] Pai of a guaranteed Commission majority," Levin wrote. "Second, it means that if Biden wins and Pai, as expected, leaves in January, the Democrats will immediately have a majority," he added. Levin believes that Pai will leave his term at the FCC early if Democrats win the White House.
Such a scenario, Levin wrote, would enable Democrats at the commission to start acting on their agenda "immediately."
Trump did not give a reason for withdrawing O'Rielly's nomination, though some political observers believe it may have had to do with the commissioner's recent comments relating to First Amendment protections and the FCC's authority to define certain legal protections under Section 230 of the Communications Decency Act, a landmark piece of legislation that protects internet platforms from civil and criminal liability for content created and posted by users. Trump in May signed a social media executive order that, in part, directed the U.S. Secretary of Commerce to petition the FCC to review and clarify certain legal protections provided under Section 230.
In a recent speech that O'Rielly said was not directed at Trump or the White House, O'Rielly said he was "very troubled by certain opportunists elsewhere who claim to be the First Amendment's biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives."
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The FCC and Pai have said little to date regarding plans to respond to the Commerce's Department's petition for the commission to review Section 230 protections, other than to say that the agency will carefully review it.
Levin wrote in his note to investors that he believes that the point of the petition was to give leverage to Republicans who criticize content moderation decisions of social media platforms at the FCC. Some congressional Republicans have also suggested social media platforms' policies show bias against Republicans.
The executive order itself is likely to face a court challenge that "the FCC and the Administration would likely lose," Levin wrote.
Communications law experts previously told S&P Global Market Intelligence that the executive order is likely to face implementation hurdles as well as legal scrutiny. A tech policy nonprofit that has financial support from major online platforms such as Facebook Inc. and Alphabet Inc.'s Google LLC filed a legal challenge to the order in June.
"I don't think Pai ever wants to vote on this one," Levin said.