Hill Democrats Eye More Critical FCC Oversight If They Win 2018 Midterms

FCC Chairman Ajit Pai will likely face a shift in Capitol Hill oversight scrutiny in 2019 if one or both chambers shift to a Democratic majority in November elections, lawmakers and communications sector officials told us. That appears unlikely to endanger Pai's ability to lead the FCC any more than it has for other chairmen who faced lawmakers amid changing electoral fortunes, former commission officials predicted. Capitol Hill Democrats have had a sometimes-tense relationship with Pai since his chairmanship began in early 2017 (see 1807250043). Democratic leaders are generally eyeing more rigorous oversight of President Donald Trump's administration if they win control of a chamber.

House Commerce Committee ranking member Frank Pallone, D-N.J., and House Communications Subcommittee ranking member Mike Doyle, D-Pa., envision a tougher approach to overseeing the FCC next Congress. Election analysts believe Democrats have a far better chance of winning control of the House than the Senate. Generic congressional ballot polls since Oct. 1 give Democrats a one-to-13-point lead. A blue wave may also occur in state-level elections (see 1810190003).

“We don't know what November will bring us,” Doyle said: If his party wins, observers can expect House Commerce and the Communications Subcommittee to “have the FCC [commissioners] in front of us a lot more than has been the previous practice” during the last four Congresses. Doyle and Pallone criticized House Commerce Republicans for going easy on Pai, bringing him before the committee less frequently than expected (see 1706210059). The FCC didn’t comment.

“There's been no oversight of the FCC” during this Congress, Pallone told reporters. Republicans “don't have an interest in oversight” of the majority-GOP commission because “they support what [Pai] is doing.” House Communications has had three FCC oversight hearings since the beginning of 2017, including a nine-month gap between two of the panels (see 1807180043). The subcommittee held five FCC oversight-related hearings during the 114th Congress, including four in 2015.

“We haven't made any decisions yet” on details of Democrats' FCC oversight vision, including how much they would lean on documents requests of Pai or if they will escalate to investigations of his involvement in shaping media ownership rules changes, Doyle said: “We need to run the election first.” Pallone wants to make restoration of 2015 net neutrality rules and the 2016 ISP privacy order a focus. FCC oversight hearings would become “part of determining what [the commission] has done on these issues” and then determining how to shape legislation, Pallone said.

GOP Satisfied, Wary

Hill Republicans are satisfied with what congressional committees have accomplished on FCC oversight since the beginning of 2017. If Republicans retain control of the House, Commerce intends to continue bringing the FCC to the Hill “on a fairly regular basis,” committee Chairman Greg Walden, R-Ore., told us. He’s satisfied with what House Commerce has done on FCC oversight in this Congress but acknowledged the past delays in holding hearings. “There’s always a bit of a delay” in setting those panels, he said.

House Commerce has supplemented its three FCC oversight hearings this Congress by passing the Repack Airwaves Yielding Better Access for Users of Modern Services (Ray Baum's) Act FCC reauthorization and spectrum statute in the FY 2018 federal spending law (see 1803230038), a spokeswoman said. The Ray Baum’s Act “includes FCC oversight reforms to ensure the commission continues to improve its efficiency and transparency,” including codifying the independence of the commission’s Office of Inspector General, she said.

Pai’s FCC “made huge strides forward” on “transparency, openness and everything else” in terms of interactions with Congress and the public, said Senate Commerce Chairman John Thune, R-S.D. “We’re going to have some differences from time to time,” as evidenced during an early October hearing on rural broadband issues (see 1810040055), but “by and large we’re very happy with what [the FCC] is doing.” Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., thinks the current Congress has been “so far, so good” on oversight of the commission.

Thune told us he's concerned about what Pai and other Trump appointees will face on congressional oversight if the Democrats win control of even just the House. “They’re going to make these appointees’ lives miserable,” Thune said. Pai “has done some things that are very forward looking and the right thing to do for the country, but when you do that obviously you don’t make everybody happy.” Thune advised Hill Democrats to “come to their senses and not try to overreact or overreach” on oversight “if they have an opportunity where they’re in charge” again because “the policies of the current FCC are going to be the right ones for the future.”

Senate Communications ranking member Brian Schatz, D-Hawaii, views the onus for deficiencies in Hill oversight of the FCC as being entirely on Pai. “This is mostly about [Pai’s] relationship with the Hill,” Schatz said. “There are areas where I’ve been able to work with him but [Democrats] have by and large been disappointed at the extent to which he has behaved like a partisan warrior in the arena as opposed to the chairman of a quasi-judicial, semi-independent regulatory agency.” Pai’s “behavior -- not just his decisions but also his tone -- are more like a Republican politician than they are like a regulator appointed by a Republican president,” Schatz said.

Ex-Officials’ View

Former FCC Chairman Reed Hundt and other ex-officials told us they believe Pai is likelier to face a tougher post-election political environment if the Democrats win the House, but for now that’s unlikely to hinder his ability to lead the commission. Hundt forecasts Pai will find a “night and day” change in demeanor of House Commerce hearings under Democrats, just as Hundt encountered serving as FCC chairman under President Bill Clinton after Republicans won control of Congress in the 1994 election.

Pai “has probably had it the easiest” out of any of the FCC’s recent chairmen because Trump appointed him to lead within days of the inauguration and his term has coincided with friendly GOP majorities in Congress, said Brookings Institution Senior Fellow Blair Levin, who was Hundt’s chief of staff. Even divided control of Congress will mean “a very different climate,” he said. Ex-Chairman Kevin Martin, who served under President George W. Bush, faced a similar climate when the Democrats won control of Congress in the 2006 election “but he was pretty good at working with the Democrats,” Levin said: Pai “hasn’t reached out to the other side at all” and shows up at conferences with “friendly audiences” such as the February Conservative Political Action Conference (see 1802230037).

Pai and his agency will “get its job done” even under Democratic scrutiny, if the Martin FCC’s experience after the 2006 election is any guide, said ex-Commissioner Robert McDowell, who was on the commission then. After Democrats took control in 2007, the FCC “immediately started receiving missives” from then-House Commerce Chairman John Dingell, D-Mich., “and there were a lot more hearings and paperwork” than during the previous Congress. “That can be cumbersome for the chairman, his Office of Legislative Affairs and his legal advisors,” but isn't debilitating, McDowell said.

Hundt sees reasons to believe Pai is “probably among the safest of all presidential appointees,” partly because Democrats are more likely to train the bulk of their ire on higher-profile appointees like Secretary of Education Betsy DeVos and other cabinet-level officials. Pai mostly “immunized himself against Democratic criticism” on media ownership rules actions and other controversies, including by initiating the hearing designation order on Sinclair’s failed bid for Tribune that led to that deal’s demise (see 1808100026), Hundt said.

The current Congress has generally “been acting like the Maytag repairman [on oversight], sitting around and acting like there’s nothing to do,” said Project on Government Oversight Director-Congressional Oversight Initiative Justin Rood. But House Commerce “has really been a shining light in the darkness” in comparison with other committees, with Walden and Pallone “pushing forward together to get answers on serious public policy issues. So we know that even in this dark time, cooperation is possible and good oversight can be done.”