There is a great deal of excitement, but also a great deal of misunderstanding, about the effort to “repeal the repeal” of net neutrality using the Congressional Review Act (CRA). On the one hand, we have folks who are confused by the enormous progress made so far and think that we are just one vote shy of repealing the repeal. On the other extreme, we have the folks declaring the effort totally doomed and impossible from the start.
You can read the relevant statutory provisions here at 5 U.S.C. 801-08. Briefly, a “Resolution of Disapproval” (which we refer to as a “CRA” rather than a “CRD” just to confuse people) must pass both the Senate and the House (in either order) and then be signed by the President like any other piece of legislation. If the President vetoes Congress may override the veto with a 2/3 vote as it can with any other vetoed legislation. You might think that this makes it impossible for the minority party to get legislation passed. But the CRA was designed to allow a majority of members to pass a Resolution of Disapproval over the objections of the leadership and on a bare majority (so it circumvents the filibuster). And while yes, it must still get past the President, there are reasons to think that is not as impossible as some folks think.
Right now, the action has been in the Senate, where Minority Leader Chuck Schumer has announced that all 47 Democrats (and the 2 independents who caucus with them) will vote for the CRA. With Republican Susan Collins (R-ME) joining her fellow Senator from Maine Angus King (I-ME), that makes the total number of yes votes 50. So if Dems find one more “yes” vote in the Senate, they can clear that hurdle. But while this is extraordinary news in a very short period of time (technically, it is still too early to even introduce a CRA on the FCC’s net neutrality vote, since the item has not been published in the federal register) — we still have a long way to go to get this over the finish line.
But, just to provide some historic perspective. Back in 2003, the nascent (and totally unanticipated by anybody — especially anybody with any experience in media policy) media reform movement rose up against the roll back of all media ownership rules by then-FCC chair Michael Powell. Republican FCC, Republican Congress, Republican President — all supportive of the roll back and big deregulators. Nevertheless, against all odds, we managed to push through a partial roll back by freezing the national ownership limit at 39% (which, not by coincidence, was the ownership level of the largest holding companies — News Corp. and Viacom — as seen in this West Wing episode). So yeah, sometimes the universe give us some long-shot unexpected surprises.
I discuss the details of a CRA, and why I think we can win this (and even if we don’t, why it still works in our favor overall), below. In the meantime, you can go to this Public Knowledge resource page to contact your Senators and Representative directly and push them to vote for the Net Neutrality CRA.
UPDATE: Matt Schettenhelm pointed out to me that while 30 Senators bypases the Committee and gets on the calendar, you still need to win a motion to proceed before debate and final up down vote. See this article here. I’ve corrected this below.
How Does The CRA Work?
When an agency has a rulemaking and creates a rule (even if it is repeal of rules), it must send a report to Congress and it must publish the rule in the Federal Register. Congress then has 60 legislative days (meaning days they are in session) after whichever event is later to pass a “resolution of disapproval.” If the resolution passes, and the President signs it, then the rulemaking is made null and void. Additionally, the agency cannot adopt a “substantially similar” rule unless Congress explicitly authorizes the FCC to adopt a substantially similar rule in a subsequent statute.
What Does It Mean For the Net Neutrality Repeal Rulemaking To Be Null And Void?
The FCC addressed that last year after Congress used the CRA to eliminate the broadband privacy rules. As explained in the Order implementing the CRA, it means the FCC will treat it as if the Order nullified by the CRA never happened and will return the rules to their status quo. So if Congress passes the CRA, it means that the FCC’s December 15, 2017 Order never happened. Broadband would go back to being a Title II service, the 2015 net neutrality rules would be back in place, and the FCC would be prohibited from reclassifying broadband as Title II and prohibited from repealing the entirety of the net neutrality rules. How much the FCC could alter them until it got to be “substantially similar” is an open question. Whether the FCC could use the Notice of Proposed Rulemaking and the existing “Internet Freedom Docket” to try again on some new repeal, or whether the FCC needs to start all over again, is an open question.
But the Republicans Run The House and the Senate and Control The Presidency. How Can Democrats Even Get A Vote on a CRA?
As it happens, the Congressional Review Act is designed to allow a sufficiently large number of members to force a vote, even over the objections of the leadership. In the Senate, if sponsors get 30 or more members on a Petition to hold the vote, then the Senate is required to put the resolution on the calendar. It then takes a simple majority for a “motion to proceed” to require debate (no more than 10 hours), and then give it a straight up or down vote. If it passes, it goes to the House and the House must vote on the Senate version (so no conference). (If the House passes first, the Senate votes on the House version.)
Forcing a vote in the House is more difficult. There is no special provision of the CRA that lets a minority of members force a vote. But the House of Representatives has something called a discharge petition which allows a majority of members (218) to force a vote. So while a minority of Senators can force a vote on the record (and thereby require members to vote in favor of or against the regulation), it takes a majority of Representatives to force a vote.
How Likely Are Either of Those Things?
In the Senate, the resolution of disapproval now has 50 supporters, so they can definitely force a vote. Getting the resolution through the Senate seems plausible — especially if pro-net neutrality groups can keep up the pressure. We are going into a fairly tough election cycle for both parties, and net neutrality is popular among both Democrats and Republicans. More importantly, net neutrality advocates are generally a lot more passionate and enthusiastic about preserving net neutrality than opponents are about getting rid of it. So from a pure members/votes perspective, supporting net neutrality is the much safer move politically.
OTOH, members of the majority party are generally reluctant to vote against their own Administration, even if they are not wild about the rules. Still, it is unclear how much members of the Senate care about that. Unlike repealing Obamacare/the ACA, which has been a major plank of the Republican Party since the ACA passed, opposition to the FCC’s 2015 rules was never a huge political commitment/investment for Republicans off the relevant Committees. Sure, Republicans opposed it — mostly ’cause Obama was for it. But the rank and file members who are not on the Commerce Committee never campaigned on repealing net neutrality the way they campaigned on repealing the ACA or environmental laws. It’s just general “big government” stuff. Since the majority of Republicans see the 2015 rules as “good regulation” rather than “bad regulation,” the political up side of voting for the CRA is potentially high, and the downside is comparatively low.
Additionally, Republicans in the Senate who have so far taken no position on Pai’s actions (rather than on net neutrality generally — that was then, this is now, and opinions can “evolve”) can always say that while they think Wheeler went too far and Congress should come up with a solution, Pai went too far in eliminating all the rules and eliminating FCC oversight over broadband entirely. So from a consistency standpoint, it is not hard for most Senate Republicans to decide to vote with Ds on the CRA.
There are exceptions, of course, such as Ted Cruz (R-TX), who has made opposition to any net neutrality rules one of his signature issues. But you don’t need more than two Republicans to get the CRA past, and Democrats already have one R vote from Susan Collins. Heck, if they manage to schedule the vote for a day when one Republican is out of town (for example, if McCain is out for medical treatment), they have a majority now.
On the flip side, we need to see how strongly the leadership plans to whip this. So far, while McConnell has issued statements in support of Pai’s actions, the primary pushback on the CRA has come from Commerce Committee Chair John Thune (R-SD). That may change when it comes time to actually have a vote, but McConnell may not want to spend political chips on a measure where Dems already have 50 votes and where vulnerable colleagues running for re-election may feel they need to vote for the CRA rather than get trashed as being allies of the cable industry. (At this point, the cable industry is one of the few things with an even lower approval rating than President Trump.) And, of course, the broadband industry is going full out to lobby hard against the CRA, and they are no slouches in the lobbying and campaign contribution department.
So I actually give the Dems reasonable odds of getting the resolution through the Senate.
When Is That Likely To Happen?
Under 5 U.S.C. 802(c), Senators who wish to bypass the Committee must wait 20 legislative days for the Committee of jurisdiction (here, the Commerce Committee) before submitting a petition signed by 30 or more Senators to force a vote. Additionally, the clock doesn’t even start until publication in the federal register and delivery of the required report to Congress by the agency.
Keep in mind that “legislative days” is kind of like the way the Superbowl takes two hours to get to the 30 minute Half Time break. Legislative days means the Senate has to be in session (and not just pro forma session). Here is the tentative 2018 Senate Calendar. Depending on when publication in the Federal Register takes place, we could be looking at March before we get past the “20 legislative days” for Schumer to be able to bypass the Commerce Committee. (I advise folks I’m not a Senate parliamentarian and am just going off my best reading of the statute. But here is a helpful FAQ published by the Congressional Research Service.
OK, But What About The House?
As mentioned above, it requires a Petition for Discharge to force the House to take up the legislation unless the leadership schedules a vote. That means it will take 218 members to force a vote in the House. Since there are 193 Democrats in the House at the moment, it would require all the Democrats and at least 25 Republicans to force a vote. On the plus side, if you have 218 on a Petition for Discharge, you will almost certainly get a majority to pass the bill (but you never know for sure until the actual vote goes down).
Holding all Democrats is a tall order, given that some Democrats have, to put it delicately, longstanding relationships with broadband providers. At the moment, we have Representative Mike Doyle (D-PA) sponsoring and 80 Democrats co-sponsoring. But leadership has been good about whipping this on the D side, and if the vote clears the House Ds are going to find themselves under a lot of pressure to literally toe the party line. So lets say we get all 193 Ds. That still means finding 25 Republicans.
This is hard, but not impossible. Back in December, when Republicans started to feel real constituency pressure and support for Pai started to slip, Walden and Blackburn whipped a letter of support for Pai going forward with the vote that had 107 Republican signatures. As Gizmodo pointed out, that leaves 137 Republicans who declined to sign on the letter giving Pai the thumbs up for his net neutrality vote. So while 25 is a lot of members to flip, there is a target pool of 137 Republicans who have not taken a recent position on this.
Mind you, that does not mean that there are 137 Republican votes for a CRA on net neutrality. Far from it. The vast majority of these members probably didn’t sign on the letter simply because it fell through the cracks in the end of year rush when Walden and Blackburn discovered at the last minute that Pai needed a public show of Republican support. Furthermore, even the ones who decided not to sign the Pai letter because they didn’t want to go on record supporting Pai’s decision are unlikely to want to public buck their own leadership and their own party FCC Chair (although Lord knows that hasn’t stopped folks before).
But it does mean that there are 137 potential targets who have not publicly approved Pai’s repeal of net neutrality, and therefore do not have to reverse themselves publicly to support the CRA. They can always say that blah blah hate Obama, hate over reach, Congress should act, but Pai went too far, can’t leave consumers totally unprotected, blah blah. Which is where we get back to the political calculations described above. There are a lot of Republicans who are unhappy with Pai and his decision to repeal net neutrality (these are the ones who like to point out that he was initially appointed to the FCC by Obama). You have a bunch of Republicans who are in districts similar to those of Rep. Mike Coffman (R-CO), who was the first Republican to ask Pai to delay the net neutrality vote. Tough re-election fight in a swing suburban district where a lot of people passionately oppose Pai’s net neutrality repeal — including Republicans — whereas there is not a lot of vocal constituent support in favor of repeal. It’s the same logic that used to produce pro-gun and/or anti-EPA Democrats.
(To be clear, I am in no way, shape or form saying that Rep. Coffman supports the CRA. He has not supported the CRA in any way shape or form, and there is a world of difference between asking Pai to delay the vote. I am simply pointing to the type of constituency/district that can prompt a Republican Representative who has not previously taken a public stance against net neutrality to vote against the leadership.)
Additionally, as I observed above, while net neutrality has been a major deal in our little pond — and a huge deal for Walden and Blackburn — it is not in the same boat as ACA repeal and tax reform. Ryan issued this rather perfunctory (and somewhat confusing, given that it is unclear what he means exactly by ‘open access’) statement supporting Pai’s actions after the vote. undoubtedly Ryan will vote against any CRA. But is Ryan really going to push Republicans who feel that this vote is important to winning reelection to immolate themselves on net neutrality? Maybe. But maybe not.
So yes, getting the CRA through the House is pretty tough and quite the long shot, but not impossible as some people are saying. Like coming back for a Super Bowl win after being down 28-3 in the Third Quarter, it is certainly not the way to bet if you follow the odds. But it’s not impossible either.
But What About Trump? Won’t He Veto It?
Ah yes, President Trump and the curious Tweet in December before the vote.
But President Trump Tweeted Nothing About Net Neutrality Before the Vote.
And that, to quote Sherlock Holmes, is the curious thing. Yes, Donald Trump tweeted back in 2014 that net neutrality was awful and the “fairness doctrine” of the internet. (Mind you, Trump himself has since grown nostalgic for the actual Fairness Doctrine, so this may no longer be a devastating insult). Donald Trump Jr. tweeted his outrage at the outrage (who still owes me “real money” for “explaining net neutrality in detail“), but since he also identified Pai as “Obama’s FCC Chair,” I think he was more outraged at the outrage at the Administration then he was making a policy commitment.
Further, when asked back in July 2017, White House Deputy Press Secretary gave a guarded answer that while the Obama Administration had gone too far, power grab, blah blah, the internet still needed “rules of the road.” Of course, this was in response to a poll by a Republican polling firm (albeit paid for by industry supporters of net neutrality) showing that Trump supporters favored net neutrality rules by a margin of 3-1. Finally, as I noted last year, while Trump went with a transition team heavy on conservative think tank types eager to roll back net neutrality (and every other regulation), there were also some factions around Trump that supported net neutrality. And, of course, Trump has no love for either Comcast or AT&T/TW.
So, as with Paul Ryan and the House, Trump has certainly supported Pai and we would, in the normal course of things, expect Trump to threaten a veto if the CRA looks close and to actually veto it if it passes. Additionally, there is absolutely no doubt that supporters of the net neutrality repeal will — increasingly frantically — push Trump to at a minimum Tweet out his support for Pai and opposition to a CRA. But Trump has also shown a willingness to avoid policy fights were he has not staked out a strong position — particularly if the policy in question is unpopular with his base. Heck, as we saw last week, Trump is quite capable of flopping back and forth even on major policy issues where he has taken strong positions.
Which means that it is unclear that Trump and his current inner circle will want to spend political points to bail out Pai just because Pai is Trump’s FCC appointee. And even if he does, Trump could well reverse himself if the momentum for a CRA and opposition to Pai’s total net neutrality repeal continues to build. And I am not counting the possibility of some random event like the Comcast/Netflix fight which inflames public opinion.
Once again, I don’t want to oversell. The conservative wing of the Republican Party which has supported the repeal (e.g. the Heritage Foundation folks) and the ISP industry are going to be lobbying hard to stave off a CRA. But I wouldn’t classify it as impossible. Long shot, with a huge potential reward and no downside for net neutrality supporters to pursue. By contrast, there is significant political downside for Republicans in opposing the CRA and being tagged as the “party of Big Cable — who just raised your rates again.” Indeed, given that Republicans used the CRA to repeal the FCC Privacy rules last year, it is trivially easy for any Democrat to run against an incumbent Republican as a tool of the cable industry if they vote against the CRA.
Here the big takeaways. First, while the momentum on the CRA has been incredibly strong, we still have a considerable way to go in terms of time and process. Markey and Doyle cannot even introduce the actual resolution of disapproval until the FCC repeal order is published in the Federal Register (which could happen any day now, but could also take awhile depending on the vagaries of OMB and OIRA (to get sign off on the transparency rules and the notice of proposed rulemaking). After that, it will still be 20 legislative days before CRA supporters can force a vote in the Senate. Even assuming net neutrality supporters find another Republican vote in the Senate, we still need to move past the House and then generate enough political pressure that Trump feels compelled to sign it. Meanwhile, the clock for this particular maneuver will run out 60 legislative days after Federal Register publication — which probably means April and almost certainly no later than Memorial Day.
That is, indeed, a fairly tall order. But we live in strange times, and Republicans starting to panic after losing another special election in a safe Republican district in the heart of Trump country are likely to be very responsive to highly motivated voters pressuring them. Since polls keep showing net neutrality is popular even with a majority of Republicans (despite massive efforts to sell repeal through a conservative media blitz) — let alone Democrats and Independents — Republicans need to take this pressure seriously.
Needless to say, that places a high premium on maintaining pressure and pressing your member of Congress at every opportunity to work for their constituents and not the cable companies (who, you may note, have made themselves even more popular by raising fees again). As a friendly reminder, if you now feel moved to action, you can use the tool embedded in this Public Knowledge blog post to look up your Senators and Representative and either thank them for standing up for the people against special interests by supporting the CRA, or tell them you’ll remember in November if they don’t.
Additionally, supporting the efforts in the states — particularly states with vulnerable Republicans like Dean Heller (R-NV) — puts further pressure on Republicans. I will also point out that even if we ultimately fall short on the CRA, this massive push helps prevent Republicans from pushing their their own “member written, industry approved ‘compromise'” legislation that would — like every industry supported bill since 2006 — effectively deregulate the broadband industry in exchange for an unacceptable ‘net neutrality lite.’
I’ll close with an inspiring reminiscence from a somewhat similar situation back in 2003-04. The Powell FCC repealed most of the media ownership rules at a time when Americans on the right and the left felt strongly that media consolidation was destroying our access to news necessary for self-governance and generally undermining society. (On the left, many felt the media had cooperated with the Bush Administration to sell the Iraq War. On the right, conservatives believed that media consolidation created the wave of indecent conduct that so incensed them — and their general concern about “liberal media bias”). Combined with industry allies from the remaining independent broadcast affiliate owners, we successfully pushed through a partial legislative repeal of the FCC’s Order despite the Republican’s controlling both Houses of Congress and the White House.
(If you will ask why we didn’t push a CRA back in 2003, I will tell you — as someone who was in the thick of things back then — that in all honesty absolutely no one even thought of it. CRA was still a fairly obscure tool then, and in all our conversations back in 2003 around possible strategies I cannot remember anyone even mentioning the CRA.)
Times have certainly changed. It is perhaps ironic that Pai’s repeal of the media ownership rules, and issuing a Notice of Proposed Rulemaking proposing to relax the national broadcast audience reach cap that Congress adopted in 2003 in response to he popular backlash described above, simultaneously with repeal of net neutrality has generated so little popular protest. But it is also a sign of the times. Net neutrality has become for 2018 what media consolidation was 15 years ago, but even more so. The entire history of net neutrality has been one of non-stop set backs followed by public pushback to move the ball forward. It would be completely consistent with the last 15 years of history for Ajit Pai’s unprecedented and unpopular repeal to generate the kind of massive pushback that can make passage of a CRA possible even in a Republican controlled Congress under a Republican President.
Stay tuned . . .