It was, in other words, a wonderful political foil. Until 2017, when it wasn’t. Once Obama left office, so did the excuse for flailing hopelessly against repeal. Much of the year was spent trying to actually follow through on the promise of eliminating the law, and the year ended with a partial victory, at best.
Still, there was a lesson Democrats could take from that. Find an intractable issue that excites the base, and push forward on it, no matter what.
They may have found that issue — at least for the time being.
Last month, the FCC, under its new chairman, Ajit Pai, voted to repeal regulations established during the Obama administration that mandated that Internet service providers treat all Internet traffic equally: no charging more for one website or less for particular type of service.
The repeal was unpopular. A poll conducted in early December found that 83 percent of respondents opposed the repeal after hearing a lengthy description of it. That included 75 percent of Republicans and 86 percent of Democrats.
In short order, Democratic legislators jumped on the issue. In addition to being popular overall and with the party’s base, the issue is seen as a galvanizing one for younger Americans. First 30, then 40 and, on Tuesday, all 49 Senate Democrats signed on to an effort to reinstate the rules that Pai had undone. With the addition of Sen. Susan Collins (R-Maine), who agreed to join the effort earlier this month, Democrats now have 50 votes for their position.
We should be specific about what that position is, though. There’s a legislative tool called the Congressional Review Act, one of the changes to Congress instantiated after the Republican electoral sweep in 1994. In short, it gives Congress the right to overturn regulations put into effect by the executive branch within 60 working days of the rule being finalized. If Congress opposes the regulation, majorities in each chamber can approve its repeal, and the president can sign the legislation eliminating it.
Which is where the idea breaks down. So the Democrats have 50 votes to reject the FCC’s decision on net neutrality. In the Senate, the Democrats need 51 for a majority, since in the event of a 50-50 tie, Vice President Pence gets to cast the tie-breaking vote — and presumably Pence will side with his administration’s FCC. But let’s say he doesn’t. So it goes to the House where … the Democrats pick up the support of two-dozen Republicans?
Just for the sake of argument, let’s assume that this somehow happens. The legislation then goes to Trump for his signature. The idea, then, is that Trump actually signs it? If he doesn’t, Congress can override his veto, but to do so the Democrats need two-thirds of each chamber — meaning far more Republicans willing to buck their president and the long-standing position of their party.
There’s a reason that the CRA has only been used shortly after a new president is inaugurated: Presidents aren’t generally eager to sign legislation overturning their own team’s regulations. Many of the laws signed by Trump in early 2017 took advantage of that brief window the Republicans had to overturn Obama-era rules; once that window closed, the use of the CRA was, for all practical purposes, tabled until the Democrats retake the White House (and, presumably, Congress).
In other words, the effort by Senate Democrats to push back on the FCC’s move is, barring a political miracle, a nonstarter. So why try it?
Because of the Obamacare strategy. Democrats see that this is an issue that energizes their base, so they do everything they can to change the FCC decision. This isn’t much, mind you, but it’s all they’ve got. And by checking this box, they can argue on the campaign trail that they need more Democrats in the House and Senate — though, by the time November rolls around, it will be too late to use the CRA, and even if they could, there’s still the issue of Trump. In 2020, it can be used as a rationale for the election of a Democrat as president.
It energizes the base in part because it, too, plays to broader partisan fears: specifically for Democrats that a business-allied FCC chairman would do the bidding of corporate America. The FCC is letting Big Business wield power in Washington outside the input of voters, precisely the sort of pro-business move that Democrats regularly charge Republicans with facilitating. What’s more, it can be framed as threatening freedom of speech on the Internet, which, in the Trump era, has been a closely-watched concern.
There are two big differences between the Democrats leveraging net neutrality and the Republican effort on Obamacare, though.
The first is that the Republicans held power for most of the time Obama was in office, so they could both repeatedly push legislative efforts to undercut the law and not have to worry about them being enacted. (The Democrats’ ability to keep introducing bills that force a vote is much more limited.)
The second is that, given the chance to overturn net neutrality once Democrats took control of the White House, there wouldn’t be much to keep them from doing so. This is a far less complicated issue than health care. When Republicans finally got the unified power they’d been fighting for in Washington, it proved surprisingly difficult for them to actually enact the changes to Obamacare they’d pledged, thanks to splits within their party on what to do.
Once the Senate effort to kill the FCC’s regulatory change fails — assuming that some legislative miracle doesn’t happen — it will be interesting to see how the Democrats respond. Do they insist that they will keep up the fight despite there not being much to do? Or will the issue fade until they regain power?
The question, then, is how willing the Democrats are to follow the Republicans’ Obamacare playbook. Or, perhaps, how effectively they could do so.