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Wicker: Recess Appointment 'Escalation'

Sohn Supporters Hope No Withdrawal Amid Senate Stall, Eye End-Runs

The Senate’s continued stall in considering FCC nominee Gigi Sohn is prompting some of her supporters to eye ways to break the logjam, including pressing chamber leaders to seek an initial discharge vote to bring her to the floor even if Democratic senators who remain publicly undecided on her candidacy (see 2205050050) don’t commit to a position beforehand. Some supporters believe it’s worth the risk such a vote would fail given chatter about Sohn or the White House withdrawing her nomination, though top Senate Democratic backers believe it’s unlikely the White House would take such an action. Observers also see a White House recess appointment of Sohn as an increasingly feasible route to at least temporarily set up a Democratic FCC majority given the commission’s year-plus 2-2 deadlock.

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President Joe Biden “continues to strongly back” Sohn, and administration officials are continuing to actively engage senators on her behalf, a White House spokesperson said. The administration is aware Sohn still doesn’t have unanimous Democratic backing but is treading carefully in deciding next steps, lobbyists told us. Sen. Catherine Cortez Masto, D-Nev., told us Monday she’s “still looking at [Sohn’s] background and research” on her positions. She doesn’t believe a vote on Sohn is “coming up any time soon." Two other Democrats -- Mark Kelly of Arizona and Joe Manchin of West Virginia -- also remain undecided. Their offices didn't comment.

The White House is quietly vetting potential replacement nominees backed by Hispanic interest groups if Sohn withdraws, lobbyists told us. The contenders likely include Wiley’s Anna Gomez. The goal would be to pick a new nominee within a matter of days after Sohn’s exit to give the Senate as much time as possible for the confirmation process, lobbyists said. Gomez said she has no “knowledge” she’s under consideration for an FCC nomination. Sohn didn’t comment.

A spokesperson for Senate Majority Leader Chuck Schumer, D-N.Y., denied communications stakeholders’ chatter that Schumer told the administration there aren't enough votes to confirm Sohn and urged Biden to nominate a replacement who can be confirmed quickly. "That's absolutely not true," the spokesperson emailed. Whoever "is telling you that is either misinformed or just lying."

'Get Rolling'

Senate Commerce Committee Chair Maria Cantwell, D-Wash., told us she’s not aware of any White House plans to withdraw Sohn from consideration, and the goal continues to be for the chamber to begin voting on the nominee as soon as possible once all 50 Democrats are again available to appear on the floor. Sen. Jeff Merkley, D-Ore., was absent Tuesday because of COVID-19 symptoms.

You know better than most that I advocated for the White House” to make its FCC picks “sooner” than its October nominations of Sohn and now-confirmed Chairwoman Jessica Rosenworcel (see 2110260076), “so I don’t expect” the Biden administration to now “take an action that would go against” Sohn’s candidacy, Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., told us. “It’s important for” Senate Commerce and the full chamber “to get her confirmed” as soon as possible and return the commission to its full strength so it can act on matters “that I believe require a full FCC to administer.”

We continue to hear rumors” the White House will withdraw Sohn’s nomination, which would please Republicans due to their longstanding concerns about her and their likely uniform opposition to confirming the nominee if she came up for floor votes, said Senate Commerce ranking member Roger Wicker, R-Miss. He warned against a White House attempt to circumvent that opposition via a recess appointment. “That would be an escalation,” Wicker said. A recess appointment would require the Senate to be in recess for at least 10 consecutive business days without holding pro forma sessions, meaning they could conceivably happen only during the August or pre-election recesses, lobbyists said.

I think they’re going to need to” withdraw Sohn because “they’ve got some problems” solidifying support among Senate Democrats, said Senate Communications ranking member John Thune, R-S.D. “They’ve been making a hard last push to try and drum up support for her,” but “if they want to” eventually confirm a third Democratic commissioner “they’ve got to get rolling” on a replacement nominee.

I’m holding out hope” that Senate Democrats can still solidify the “votes that [Sohn] needs to get confirmed” and it has been “frustrating” to watch the Senate dither on moving forward on her nomination, House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us before the chamber began a two-week recess that was to end Tuesday night. “What’s most frustrating about it is that if she were to withdraw” now, “then the Senate would be starting from scratch” with limited time left on the legislative calendar before members of Congress focus on the midterm election campaign. It “does a disservice to the FCC not to have a full complement” for so long, he said.

Risky Options

It "wouldn’t be my expectation" that the White House would consider withdrawing Sohn or urging her to bow out, said Public Knowledge Government Affairs Director Greg Guice. “It needs to be made very clear that at the very next opportunity” when all 50 Senate Democrats are available, “they should call the vote” to discharge Sohn, regardless of whether leaders have guaranteed unanimous Democratic support for advancing her. “It’s not fair” to Sohn, the FCC or the White House “to have her nomination just sit out there” any longer, Guice said. “One way or the other, we all deserve an answer” to whether majority Senate support exists.

The August recess is coming, and instead of having pro forma sessions” throughout that period, “it would be great” if Schumer would fully recess the chamber for the required 10 business days needed for the Biden administration to recess appoint Sohn, Guice said. A recess appointment “would limit the amount of time” Sohn would be able to sit on the FCC sans confirmation to one year, but “I think what that could do is demonstrate that she is not the bogeyman that the ISPs and broadcasters have made her out to be. When she’s at the FCC, they will see from her decision-making” that she’s “a very smart, reasonable person. This fear of the unknown that these companies have whipped up” during Sohn’s confirmation process “will prove unfounded.”

Forcing a floor vote on Sohn to put undecided Democrats on record or making her a recess appointee carries significant risks due to Senate Democrats’ narrow control of that chamber before the midterm election, lobbyists said. A recess appointment in particular would be a long shot since such a move hasn’t happened “for years,” said one lobbyist familiar with congressional Democratic thinking. Senate Minority Leader Mitch McConnell, R-Ky., is also following the Sohn confirmation fight closely and will use his expertise on the chamber rules to prevent a recess appointment, lobbyists said. Schumer likewise can’t force a vote since it would put Cortez Masto and Kelly in a particularly difficult position so close to the election, the lobbyist said.

The longer this takes the worse it looks for” Sohn, said Digital Progress Institute President Joel Thayer: “That the FCC seems to be moving on key issues irrespective of being without a fifth commissioner also doesn’t help her chances. The FCC remaining productive may signal to” Biden “to not expend more political capital” to push for her confirmation.

Democrats likely don’t have the votes needed to adjourn the Senate, said Nathan Leamer, a former top aide to ex-FCC Chairman Ajit Pai. A discharge “seems equally unlikely especially because the undecideds are all in close elections,” he said: “Republicans have successfully made [Sohn’s] nomination an election issue. For Democrats to put vulnerable senators in such a position to vote on a controversial nominee would be a political gift to their opponents.”

There may not be a recess and thus no room to make a recess appointment, said Shane Tews, American Enterprise Institute nonresident senior fellow. “There are high stake votes on serious political issues going into the general election and [Sohn isn’t] a chit worth trading votes around in the current environment.” There “have also been a few backhanded compliments on” Rosenworcel “holding her own and so they don't think she needs the fifth vote as a priority right this minute,” Tews said.

My bet is on a recess appointment, if anything,” emailed Phoenix Center Chief Economist George Ford. “It’s too close to the election to get aggressive,” especially given "I suspect some moderate Democrats may be less inclined to support her nomination."