Senator Edward Markey (D-MA) has introduced a resolution in the US Senate that if passed by the Senate and the House of Representatives, and signed by the President, would overturn the actions of the Federal Communications Commission when it voted to reclassify the internet under Title II of the Communications Act.
The internet had been classified briefly during President Barack Obama’s administration under Title I as a telecommunications service. Before that it was classified under Title II, as an information service.
Senate Democratic Leader Chuck Shumer (D-NY) plans to file a Discharge Petition that would force a floor vote on the resolution, potentially as early as next week. Shumer is filing the petition under the Congressional Review Act, which gives Congress the power to review the decisions of federal agencies. If the resolution passes the Senate it will then go to the House for consideration.
The chances of such a resolution actually passing the Senate are reasonably good. If the Senate democrats get at least one Republican vote it will pass, because one Republican, John McCain, is away because of poor health. This would prevent a tie vote that would then be decided by the Vice President. It would appear that that one vote exists because Senator Susan Collins (R-ME) has said that she would support the resolution.
However, the chances of the CRA resolution moving beyond the Senate are slim. First of all, House leadership would have to move it forward in the legislative process by holding hearings and then moving it to a floor vote if it was endorsed by the relevant committee, which would be the House Commerce Committee. But there is no indication that the Republican-dominated house would approve the resolution.
But if it did receive a majority vote in the House of Representatives, it would have to be signed by the President Donald Trump. Considering that the president has already praised the action by the FCC, this seems remote.
Since the resolution is almost certainly going to fail, what’s going on here? In fact the Democrats, despite their rhetoric, know perfectly well that it’s going to fail. What’s really going on here has been described by Senator John Thune (R-SD) as "political theater.” And that’s exactly what it is.
The reason has nothing to do with the internet, but everything to do with politics. As the CRA garners attention during the summer, the Democrats are sensing the sweet aroma of victory in the mid-term elections this fall.
The Senate Democrats, with the full knowledge and assistance of some reputedly pro-internet organizations, has hijacked an issue of critical importance to the internet and digital commerce to give them a wedge issue to help cement hoped-for victories in the November election.
There are several reasons that this is happening. Ironically, well-crafted bipartisan legislation is rarely a vote-getter. Because it’s bipartisan, such legislation doesn’t play well as a polarizing issue that decides votes in an election campaign. But in fact, legislation with broad bipartisan support means it is more likely to be good for the country.
Congress was actually working on its own net neutrality legislation in 2015 when it was short-circuited by then FCC Chairman Tom Wheeler who forced a party-line vote in favor of regulating the internet under Title I as a telecommunications service.
The proposed legislation was exactly that sort of non-controversial, well-crafted, bipartisan bill that had a good chance of passage. But the FCC at that time wanted to make political points at the expense of the long-term health of the internet.
Then, two years later after a change in presidential administrations, a new FCC voted to undo what the previous commission had done. That’s where we are now.
All of this is complicated by the hyper-partisan atmosphere in Washington right now. There are a number of Democrats for whom anything done by the Trump administration is by definition bad. There are a number of Republicans that believe the Trump administration can do no wrong.
On both sides there are members of Congress for whom bipartisanship is a dirty word and any bill with bipartisan backing must be stopped at any cost. Such views are held by small but vocal minorities in each party.
Sounds grim, doesn’t it?
Fortunately, there is a way to solve this problem. Senator John Thune (R-SD) is proposing a new bipartisan effort at crafting legislation that would define and protect net neutrality. He made a speech on the Senate floor May 9 asking Senators from both parties to focus on the future of the internet rather than on political considerations, and get behind his proposal, contribute their ideas to it with the goal of saving net neutrality from the varying views that go with each change of administration.
“I support net neutrality. I support rules that prevent blocking, throttling, and paid prioritization of internet traffic,” Thune said in an op-ed published on MSNBC. “I believe these principles should guide us on Capitol Hill as we work to expand broadband access to even the most remote and rural areas of the country.”
Thune asserts that “the internet is too important for partisan politics. Congress must codify widely accepted net neutrality protections through bipartisan legislation.”
Senator Thune is right. But he’s going against the “ever-shifting political winds” he decries by proposing a bipartisan approach that once passed will be above politics and that will give some certainty to the internet and the commerce that depends on it.
But sadly, bipartisanship doesn’t have much chance of success in an election year.
Maybe it’s time for people who actually care about the future of the internet and about to tell their senators and representatives in Washington to stop playing politics and get to work on legislation that has a chance of passing–perhaps after the election.