Schneiderman Quitting Quiets Voice for Net Neutrality, Not State AGs

The net neutrality fight lost a giant liberal voice with the resignation of Eric Schneiderman as New York attorney general (see the personals section of this publication's May 9 issue). Some observers said his exit last week shouldn’t affect New York’s lawsuit against the FCC with 22 other Democratic state AGs at the U.S. Court of Appeals for the D.C. Circuit. “What can get lost in the scandal,” said State and Local Legal Center Executive Director Lisa Soronen, “is the value that this guy added -- or from the other side’s perspective, the detriment that this guy added.” But NARUC General Counsel Brad Ramsay said it’s “hard to see how the departure of one attorney in a case with so many appellants could be crucial to either organization efforts or advocacy,” especially so early in the process.

Schneiderman resigned after facing sexual assault allegations he denies; New York Solicitor General Barbara Underwood (D) was named acting AG. In addition to challenging the federal government over net neutrality and other issues, Schneiderman sued big companies including Charter Communications, with his exit coming in the middle of a case disputing its advertised broadband speeds (see 1805080027). Schneiderman challenged FCC Chairman Ajit Pai in news conferences, cable news shows and YouTube videos.

“All of our work is continuing without interruption,” said a New York AG office spokeswoman, referring us to Underwood's statement last week on net neutrality (see 1805100005). “This office has proudly led the suit to block this illegal rollback of net neutrality -- and we certainly won’t stop now,” Underwood said. Democratic state AGs’ work will “continue uninterrupted,” said a Democratic Attorneys General Association spokeswoman.

Gone is a strong advocate for liberal issues, said Soronen, whose organization files amicus briefs supporting states and localities at the Supreme Court but has no official position on the net neutrality case. “Obviously, he needed to go,” but Schneiderman “really raised the profile of the AG office,” Soronen said in an interview. AG office staff may handle much of the work, but Schneiderman “set a tone that was unapologetic [and] frank,” she said. “That becomes the office, even though it’s a small part of it.” Underwood may have different priorities and a “less flamboyant” style than Schneiderman, Soronen said: But the acting AG doesn’t have to be as public a figure to be strong, and Underwood’s net neutrality statement in her first couple of days on the job signals she’s keen to fight. Consumer cases like New York’s lawsuit against Charter are “bread and butter” for AGs, she noted.

Schneiderman’s exit probably won’t diminish the state AG petitioners’ effort, said Ramsay, noting NARUC is an intervenor that’s not privy to the state AG petitioners’ discussions. In the courtroom, “whoever is the ‘public face’ cannot affect the persuasiveness of the briefs or … the competence of the attorney selected to do the oral argument,” Ramsay emailed. “It is far from clear that Mr. Schneiderman would have been selected for the oral argument and even less likely that he would be a core member of the scriveners charged with authoring the initial drafts of the Petitioners’ initial and reply briefs.”

Other Democratic state AGs could step up to fill Schneiderman’s shoes in the public spotlight, Soronen said. California’s Xavier Becerra and Washington state’s Bob Ferguson are among those who also raised their profiles fighting the Trump administration, but none has been as “out there” as Schneiderman, she said.

The net neutrality suit is “about politically ambitious and publicity hungry state AGs signaling political affinity with a popular cause, particularly with the progressive left,” emailed Wilkinson Barker’s Raymond Gifford, ex-chair of the Colorado Public Utilities Commission. “I cannot imagine there won’t be jostling and elbowing among the Democratic AG’s now that Schneiderman is down. Trying to grab the political spotlight on this is a no-brainer politically, even though your legal case is dubious at best.”

To conflate Schneiderman’s downfall with net neutrality is “cynical and sickening,” said Free Press Policy Director Matt Wood. Schneiderman's resigning doesn’t diminish the reason for the AGs’ complaint or work done by staff at the New York AG office, Wood said. “The most important aspect of the Schneiderman story is the abuse he quite evidently perpetrated.”

“We have no reason to believe this will have any effect on any of these efforts,” emailed Public Knowledge President Gene Kimmelman. “We don't expect NY to change course.”

Schneiderman was “one of the country’s strongest advocates of holding telecom companies to their agreements,” Stop the Cap Director Phillip Dampier blogged last week. Underwood, who doesn’t have a record of being a political advocate, is expected to be an office caretaker, he said. “Traditionally, caretaker heads of the Attorney General’s office continue existing cases and rely heavily on staff attorneys and their supervisors to continue litigation.”