Election Split Yields Hill Leadership Flips, Raises Telecom Legislative Questions

Democrats gained at least a net 27 House seats to give them a minimum margin of 223-197, with media outlets waiting to call others. Republicans are leading in nine of the uncalled House seats, Democrats in six. Republicans appeared on track to expand their Senate majority, having won three seats from incumbent Democrats. Three Senate races remained uncalled.

At least four leaders of telecom and tech-focused congressional committees lost, including Senate Homeland Security Committee ranking member Claire McCaskill, D-Mo., and House Communications Subcommittee Vice Chairman Leonard Lance, R-N.J. Two other top Republicans on House telecom-related subcommittees lost: House Homeland Security Emergency Communications Subcommittee Chairman Dan Donovan of New York and House Appropriations Commerce, Science and Justice Subcommittee Chairman John Culberson of Texas.

Democrat Tom Malinowski triumphed 51-48 percent over Lance, who was viewed as a potential successor to House Communications Chairman Marsha Blackburn, R-Tenn., in the lead GOP role (see 1811020048). GOP Missouri Attorney General Josh Hawley unseated McCaskill 52-46 percent. McCaskill this year pressed FCC officials for answers about abuses of the Lifeline USF program (see 1805030033). Hawley has been a hawk on tech antitrust and privacy issues (see 1811070053). Democrat Lizzie Fletcher won 52-48 percent against Culberson. Democrat Max Rose defeated Donovan 53-47 percent.

Commerce Committees

Nelson vowed Wednesday he's “proceeding to a recount” against Scott, who led by about 30,000 votes. There's no clear favorite to replace Nelson as Senate Commerce ranking member. Next in seniority would be Maria Cantwell of Washington, Amy Klobuchar of Minnesota and Richard Blumenthal of Connecticut.

Nelson “has shown himself to be very bipartisan” on Senate Commerce, often “very willing to work with” committee Chairman John Thune, R-S.D., on telecom issues, said Internet Innovation Alliance honorary Chairman and ex-Rep. Rick Boucher, D-Va., a former House Communications chairman.

A Nelson loss would be unlikely to create a leadership vacuum on Senate Commerce on telecom, because Democrats have a “pretty deep bench” of committee members active on those issues, said Free Press Policy Director Matt Wood. He cited Senate Communications ranking member Brian Schatz, D-Hawaii.

Lance’s loss likely strengthens a potential bid by House Digital Commerce Committee Chairman Bob Latta, R-Ohio, to lead Republicans on House Communications, said American Action Forum Director-Technology and Innovation Policy Will Rinehart and others. It may not become clear whether Latta has a lock on the role until after House Republicans hold leadership elections Nov. 14, lobbyists said. At least two other House Communications Republicans are considered possible contenders for the top subcommittee seat -- Kentucky’s Brett Guthrie and Illinois’ John Shimkus. Guthrie's "priorities remain the same as before the election, and he intends to continue advancing [President Donald Trump's] agenda in whatever role in which he can be the most effective on" House Commerce, a spokesperson said. Latta and Shimkus didn't comment.

House Commerce ranking member Frank Pallone, D-N.J., confirmed Wednesday he plans to seek the committee chairmanship. “I will have discussions with my colleagues about moving forward with our priorities,” Pallone said. He plans to explore proposals that would “protect net neutrality, provide meaningful privacy and data security protections” and investments in broadband infrastructure. House Communications ranking member Mike Doyle, D-Pa., plans to seek the subcommittee chairmanship, an aide confirmed.

All but one of the other Senate Commerce members up for re-election will stay -- Rep. Jacky Rosen, D-Nev., unseated Sen. Dean Heller (R) 50-45 percent. Re-elected committee members included Senate Communications Chairman Roger Wicker, R-Miss., Cantwell, Klobuchar, Ted Cruz, R-Texas, and Jon Tester, D-Mont. Two other telecom-focused Republicans also won Senate seats. Blackburn won an open Tennessee Senate seat over Democratic former Gov. Phil Bredesen. Sen. Heidi Heitkamp, D-N.D., lost to Rep. Kevin Cramer (R). Cramer has been active on rural broadband issues as a member of House Communications.

Legislative Prospects

The Democrats’ House majority win is unlikely to result in much major legislation on telecom issues, though the party strengthened its hand in negotiating on a broadband title in an expected infrastructure legislative package (see 1810100049), Rinehart and others told us.

Trump said Wednesday he believes infrastructure legislation is an area of potential agreement with the incoming House Democratic majority. “Democrats will come to us with a plan” on infrastructure and other issues “and we'll negotiate,” he said. House Minority Leader Nancy Pelosi, D-Calif., separately cited infrastructure as an area of potential cooperation, saying it's "not been a partisan issue" in Congress.

Compromise on net neutrality legislation between a Democratic House and GOP Senate is likely to be far more difficult, Wood and others said. There are questions about Democrats’ chances for success in their expected push for a House floor vote during the lame-duck session on a Congressional Review Act resolution of disapproval aimed at undoing the FCC’s 2017 order rescinding 2015 net neutrality rules (see 1809210048), Boucher and some lobbyists said. A discharge petition aimed at forcing a floor vote on the measure on Wednesday had 177 of the needed 218 signers, as it’s had since Rep. Mike Coffman, R-Colo., signed on in July (see 1807170048).

Coffman’s 53-44 percent loss to Democrat Jason Crow shouldn’t necessarily be an indicator for other House Republicans as they evaluate whether to sign onto the CRA discharge petition, Boucher and Wood said. Coffman’s CRA support “obviously didn’t do him any good” but also didn’t appear to be a major factor in the campaign, Boucher said. Coffman was in a district that 2016 Democratic presidential nominee Hillary Clinton carried over Trump, so Coffman’s support for the CRA “really couldn’t have saved him” in this election, Wood said. “Net neutrality is a campaign issue” but not one that “anybody could or should claim would swing” a contest.

“There’s going to be an effort” to push forward on the CRA measure, but “I can’t imagine it’s going to be successful this late in the Congress,” Boucher said. House Republicans “are not likely to allow any floor time for it” absent the discharge petition getting the 218-member minimum, especially if the lame duck is “relatively short.” Boucher said there will be opportunities in the next Congress for compromise legislation that codifies net neutrality protections with a legal basis in Communications Act Title I, an outcome IIA supports. Congress needs to end the “incredibly long period of debate,” he said.

“If the goal is to make net neutrality rules, the only way to do it is in Congress,” emailed American Enterprise Institute scholar Roslyn Layton. “I am optimistic that a net neutrality bill can be passed, particularly with coming decisions” from the U.S. Court of Appeals for the D.C. Circuit reviewing a challenge to the FCC rescission order. “Many states have used symbolic politics to create state level internet regulation just in time for the election, but these efforts will likely come to naught” (see 1811070043), she said, citing the stayed DOJ and ISP challenges against California's net neutrality law (see 1810300055). “It was never the goal to make lasting policy; the point was to create political theatre.”