One of the strange features of American government is that an 82-year-old’s broken hip can cause a sea change in telecom policy. The 82-year-old in question is Sen. Patrick Leahy (D-VT), who had surgery after a fall on Thursday and is said to be resting comfortably. But, while Leahy recuperates, he won’t be able to cast votes, and Democrats won’t be able to flex their razor-thin Senate majority — which could cost the administration its last chance to institute net neutrality rules.
The temporary stalemate caused by Leahy’s recovery has lots of downstream effects. The Washington Post has a good piece running down the panic over federal judicial appointments, which require confirmation from the Senate. But the same also applies to Gigi Sohn, Biden’s nominee for the fifth seat on the Federal Communications Commission.
The FCC has been deadlocked at 2–2 since President Joe Biden’s inauguration, and once Sohn is confirmed, the FCC would be in a position to restore net neutrality rules with a majority vote — but it’s been slow going. As long as the fifth seat is empty, net neutrality will remain in limbo — and it now looks like it could be empty for a very long time.
First, some background on how we got here. Throughout the ‘90s and ‘00s, progressives campaigned for net neutrality rules to protect against telecom interference in the internet. At the end of Obama’s second term, it finally happened: in 2015, then-FCC chair Tom Wheeler issued the Open Internet Order and explicitly put information services under Title II authority, giving the FCC stronger regulatory powers over how internet access is delivered. After Trump was elected in 2016, one of the first things Republicans did was roll back that order, not just winding back the clock to 2014 but also stripping away telecom privacy rules and a number of other regulations in the bargain.
There’s a whole argument about whether this was good or bad, and a lot of conservatives will tell you that basically nothing changed. We did a whole podcast about it if you want more detail, but the core point is just that the rollback makes it impossible to address a lot of the most pressing issues with telecom companies. When Santa Clara firefighters saw their data throttled during a statewide emergency, they had no one to appeal to in government. Now that the rollback of Roe v. Wade has drawn new attention to location tracking, there’s no agency with authority to limit carriers’ data collection.
In theory, Biden was set to solve this. When he took office with a Congressional majority (thanks to two long-shot wins in Georgia), a lot of observers thought it would be straightforward to get a fifth Democratic commissioner confirmed and reinstate everything Wheeler did. I was one of those observers! I wrote a whole article in January 2021 with the headline “Georgia’s runoff may have saved net neutrality,” which looks a bit embarrassing now.
Instead, basically nothing has happened. Biden nominated Sohn in January 2022 (almost a year later) and despite an ongoing push from progressive groups, her nomination simply hasn’t gotten a Senate vote.
There are different stories about why this is. Some folks point to pushback from Republicans, which could have made some Democratic senators gun-shy — but, as recently as June, Politico reported that the votes were there for Sohn’s confirmation. On the other side, the White House has been in no hurry to speed the process along, taking a year to nominate Sohn and leaving many of the Republican attacks unanswered.
In fairness, the White House has a lot on its plate. We’re still in a pandemic, the economy is melting down, and the last month has been spent shepherding a heartbreakingly modest gun control package through Congress. But, with an election coming in November, Democrats may not have their Senate majority for much longer. Every week that passes — either because of priorities like gun control or injuries like Leahy’s broken hip — is another missed chance.
To state the obvious: it should never have gotten this far. We shouldn’t be flip-flopping between Title II and Telecom Purge Night every time a new party takes the White House. Presidents shouldn’t face a party-line blockade just to appoint regulators sympathetic to their views. And, most alarmingly, we shouldn’t be resting the entire standoff on the physical health of an octogenarian such that he feels pressure to rush back to work instead of taking time to fully recover.
But this is how American government works, so there is nothing to do but hope the nomination comes through under the wire and pray for Sen. Leahy’s speedy recovery.