Net Neutrality State Bills Could Ride a Blue Wave Election
A potential blue wave in state legislative and gubernatorial elections (see 1810110031) could strengthen efforts to counter the FCC December order rescinding some net neutrality rules, said a state lawmaker and observers. But there’s no guarantee bills will pass even in Democratic-controlled states, and lawsuits against states could give lawmakers pause, some said. Flipping the state Senate is key to passing net neutrality in New York, said state Sen. Brad Hoylman (D), whose 2018 bill failed to pass. Adding Democrats may make less difference in other states that failed to pass bills last year, some said.
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“The usual midterm presidential penalty extends to state legislative seats, where the presidential party loses an average of more than 400 state legislative seats each midterm,” said National Conference of State Legislatures elections analyst Tim Storey and Elections Director Wendy Underhill in an Oct. 11 article for the University of Virginia Center for Politics. Democrats likely will flip chambers but may fall short of the average dozen that flip each cycle, they said.
Democrats are expected to gain governor seats. More Republican than Democratic states have gubernatorial races where a change in parties is possible, said Cook Political Report race ratings dated Oct. 16. In 26 Republican-held seats, three races are rated likely or lean Democrat and nine others are toss-ups. In nine states with Democratic governors, one leans red and two others are toss-ups.
“We will likely see new net neutrality bills introduced at the start of legislative sessions next year,” emailed Danielle Dean, National Conference of State Legislatures policy director-communications and technology. “States will pay close attention to what happens with the DOJ lawsuit against California’s recently enacted net neutrality law.” ISPs also challenged California and Thursday sued Vermont (see 1810180045).
Having more Democrats in state legislatures “will help but I don’t think it’s determinative” in passing net neutrality bills, said Public Knowledge Vice President Chris Lewis. It was tough to pass a bill even in strongly blue California because the telecom industry has more lobbying resources than do public interest groups, he said. Democrats aren’t “a locked vote for net neutrality,” he said. Some state lawmakers may want to wait for resolution of various suits, Lewis said.
States should first wait for litigation to be resolved, said American Legislative Exchange Council Communications and Technology Task Force Director Jonathon Hauenschild. “Some states that might be on the fence will probably wait, while states that are determined to do something will probably affect the drafting as they hope to avoid the pitfalls identified through the lawsuits,” he emailed. “While I am sure if a large number of state chambers change hands during the midterms we will see an increase in net neutrality proposals, I am not sure that would substantially increase the likelihood of success.”
New York
A divided state Senate stymied 2018's efforts to pass a net neutrality bill, said Hoylman, the New York state senator who said he wants to pass a bill like California’s law. “Net neutrality has become a partisan issue thanks to [President Donald] Trump and I know that Republicans in the state Senate aren’t going to move the bill, so we’re going to have to win on Nov. 6.” Hoylman voiced optimism about his party’s chances, noting polls look good and voter enthusiasm is high, with many volunteering to help campaigns.
Net neutrality is a “more granular” issue in New York politics than hot topics like gun control and abortion rights, Hoylman said. “That said, it’s an example of Trump’s America that I’m hearing voters want Albany to take a stand against.” A message that resonates with a wide range of voters is the internet should be free with equal access, the Democrat said.
Democrats winning the New York Senate is key to moving a bill there in 2019, said Public Utility Law Project Executive Director Richard Berkley. Expect forceful lobbying by telecom companies and progressive groups, he emailed. “The hardest thing will probably be arriving upon language that satisfies the legislators and the Governor, and good government/progressive groups.” The ongoing net neutrality litigation probably won’t stop New York from acting but could affect how a bill is written, Berkley said. Restricting state procurement may be the more likely path, he said.
Elsewhere
Passing a net neutrality bill in some other states may remain tough even if Democrats pick up seats.
Connecticut couldn’t pass a net neutrality bill this year even though Democrats had a power trifecta. “We couldn’t generate much enthusiasm … so unless there are new legislators with a really strong interest, I doubt that it will get far,” said Connecticut Consumer Counsel Elin Katz. Retiring Gov. Dannel Malloy (D) didn’t like the issue, but Democratic candidate Ned Lamont “might be more inclined to support” such a bill, she said. Republican candidate Bob Stefanowski probably wouldn’t, Katz said. Lamont worked early in his career for Cablevision and later founded Lamont Digital Systems, which provided cable TV to colleges as Campus Televideo before that division was sold in 2015 to Apogee. The Cook Political Report rates the race a toss-up.
Democrats look likely to pick up seats in Illinois, where despite majorities in both chambers last year they couldn’t pass a net neutrality bill, noted Illinois PIRG State Director Abe Scarr. Lawmakers didn’t call the bill up for vote because they knew there wasn’t enough support, he said. “Powerful interests like the telecom giants have powerful friends on both sides, so I wouldn’t be surprised if they continue to struggle to move the bill.” Suits may give some Illinois lawmakers pause, he said.
Cook rates the Illinois gubernatorial race as likely Democrat. Venture capitalist J.B. Pritzker (D) plans to restrict state procurement to ISPs that honor net-neutrality principles. Six governors took that approach in 2018 executive orders.
“Net neutrality cannot and should not be solved by the states,” a USTelecom spokesperson said. “Congress should pass a national framework to protect the open internet and settle this issue once and for all.” NCTA and the gubernatorial candidates didn't comment.