Democrats returned to power in Washington with big promises to rework the laws that govern tech giants — priorities President Biden emphasized at his first State of the Union address, with a call to boost protections for children online and expand Internet access. But implementing this ambitious tech agenda hinges on breaking partisan deadlocks at two key agencies, the Federal Communications Commission and the Federal Trade Commission, where tiebreaking nominations have been delayed.
Democrats came one step closer to gaining control Thursday morning. The Senate Commerce Committee voted 14 to 14 along party lines to advance FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya to the Senate floor. Committee Chair Maria Cantwell (D-Wash.) said she would report the ties to the Senate floor, where Democrats hold a narrow majority secured only by the tie-breaking vote of Vice President Harris.
Both agencies with broad oversight over Silicon Valley companies, the FCC and FTC have lacked a Democratic majority for months, preventing them from moving forward with widely anticipated initiatives, such as restoring open-Internet regulations and crafting new competition rules.
While the agencies are split, FCC Chair Jessica Rosenworcel and FTC Chair Lina Khan have had to negotiate compromises with Republican commissioners, who disagree with some of their key positions.
“It’s difficult to do the major things that the White House wants and the leadership of the agencies want without a majority,” said Blair Levin, who served as the executive director of the National Broadband Plan during the Obama administration.
Sohn, an open-Internet advocate, and Bedoya, a critic of surveillance software, are among a slate of Biden nominees who have signaled the dawn of more aggressive tech and telecom regulation. But the clock is ticking on that agenda — especially as it appears increasingly likely that Republicans could regain control of Congress in the midterms and subject the agencies to tougher oversight.
For the entirety of Biden’s term, the FCC’s 2-to-2 split has prevented the agency from following through on a key Biden campaign promise to restore Obama-era net neutrality rules, which require Internet providers to treat all Web traffic equally. The FTC has been in a political tie since September, when former Democratic commissioner Rohit Chopra was confirmed to lead the Consumer Financial Protection Bureau.
“All of this has put the Biden agenda on both tech and telecom significantly behind,” said Harold Feld, the senior vice president of Public Knowledge, a consumer advocacy group launched by Sohn.
The delays have been partially driven by a 50-50 Senate, where Democrats hold a fragile majority. The Senate Commerce Committee had been expected to vote on Sohn’s and Bedoya’s nominations a month ago, but the Senate Commerce Committee pulled them from consideration after Sen. Ben Ray Luján (D-N.M.) suffered a stroke. Both nominees faced fierce opposition from some Republicans, and it was unclear if they would have the necessary votes to make it to the Senate floor without Luján, who returned to work on Thursday.
In confirmation hearings last year, Republican senators tore into both nominees’ old tweets and grilled them on past political positions. Sohn’s nomination became so contentious that after the committee’s top Republican raised concerns about her impartiality, the committee held a second hearing. Sohn previously sent a letter to the acting FCC general counsel, saying she said she would recuse herself from some broadcast regulatory issues following scrutiny of her previous work because of positions she took when she was president of Public Knowledge, a consumer advocacy group focusing on Internet and other communication tools.
Industry groups have also ratcheted up the pressure. The U.S. Chamber of Commerce on Tuesday sent a letter to all members of the Commerce Committee, opposing Sohn’s nomination.
“At a time when the Biden administration is launching an unwarranted and unjustified campaign against the business community through federal regulators, Ms. Sohn’s track record and her views on competition would create unnecessary obstacles to crafting effective, durable policies to ensure all Americans are connected,” Neil Bradley, the executive vice president and chief policy officer of the U.S. Chamber of Commerce, wrote in the letter.
Allies of Sohn have accused the industry of trying to slow down the nomination process. “The longer they can stall the FCC at 2-2, the longer it takes to move forward on things the industry is unhappy about,” said Andrew Jay Schwartzman, who hired Sohn at the Media Access Project in the 1990s.
The vote comes at a critical moment for both agencies. In addition to restoring net neutrality, the FCC is under pressure to expand competition among broadband providers, improve maps that are used to allocate broadband funding and expand programs to address Internet affordability. At the FTC, Khan has signaled she wants to create new competition and privacy rules, and bring innovative antitrust cases against tech companies. But that agenda can’t be accomplished without votes.
Consumer advocates say for the brief period that the FTC had a full slate of commissioners last summer, it was active. The agency refiled an antitrust case against Facebook and revoked rules governing mergers.
“And then when they went down to 2-2, things sort of quieted down,” Feld said.
Continued paralysis could pose new political threats for the Democrats, especially after entering office with such an ambitious tech agenda. Republicans at the agency are already criticizing Khan for not doing enough to address mergers, after long criticizing the FTC for being too inactive.
“Criticizing the work of others is easy, but governing is hard,” Christine Wilson, a Republican FTC commissioner, said in a recent speech. “I believe this is a lesson that the agency’s current leadership is coming to understand.”
Cristiano Lima contributed to this report.