Election Likely to Decide Simington's Senate Fate

FCC nominee Nathan Simington’s Senate confirmation hinges on Tuesday's elections, lawmakers and other officials told us. Many of the hurdles for his confirmation would likely clear if President Donald Trump is reelected, but his prospects will likely be greatly diminished if Democratic nominee Joe Biden wins, lobbyists said.

Senate Commerce Committee GOP leaders hadn’t secured unanimous support among their members for moving forward on Simington. The committee plans to hold a hearing on him Nov. 10 (see 2010150069). Biden leads in polls, and Republicans and Democrats are in a tight contest for Senate control (see 2011020048).

“We still have a little bit of the background check” left to do on Simington before the confirmation hearing, Senate Commerce Chairman Roger Wicker, R-Miss., told us in late October. Simington “is originally from Canada," and when Trump nominated now-confirmed Justice Amy Coney Barrett to the Supreme Court in late September (see 2009280038), “all FBI hands were on deck there.” Wicker faced pressure from Trump and other conservatives to move forward on Simington, an NTIA senior adviser (see 2010090001).

If Simington’s confirmation “goes well,” Senate Commerce would be likely to advance him to the full Senate “irrespective of” the election results, said Communications Subcommittee Chairman John Thune, R-S.D. His October phone call with Simington “went well.” The nominee “had good responses to the questions, and he’s obviously very knowledgeable,” Thune said. Their conversation touched on 5G and Communications Decency Act Section 230.

“We don’t have the votes” yet among Commerce Republicans to advance Simington, said a Senate GOP official. “We’ve spent a good deal of time on a staff level trying to help” Simington and have been “meeting with him repeatedly to provide any assistance the committee can,” said a Commerce Republican aide. “There are still some senators who want to have further discussions.” There “hasn’t been much engagement between Simington and the members, given the timing right before the election” and other factors, the aide said. “They’re busy with other things, and this position touches a multitude of issues. Every senator has many particularly passionate home-state issues” to address before a confirmation vote.

GOP Concerns

Sen. Marsha Blackburn of Tennessee is among Republicans not yet backing Simington. “I had a brief phone call with him,” but hadn't “sat down with him” for a more in-depth conversation, she said in October. “I wished he had been more prepared” for that conversation, including on spectrum issues. “For those of us who have worked on this policy area for a period of time,” Simington remains an unknown quantity, she said. “I anticipate that when we come back in the lame-duck [session], I’ll sit down with” him for a longer talk.

Sen. Dan Sullivan, R-Alaska, is also considered a potential hurdle, as he was in September after Trump announced Simington to replace outgoing Commissioner Mike O’Rielly. The outcome of Sullivan’s reelection fight against Al Gross, an independent candidate running with Democrats’ backing, could determine his stance, lobbyists said. They believe Sullivan might feel less pressure to back Simington if he loses. Sullivan is narrowly favored to win reelection (see 2010140048).

Sullivan’s office didn’t comment. He temporarily blocked Senate confirmation of Brendan Carr in 2018 over concerns about how the FCC approach to the USF Rural Health Care Program affects Alaska (see 1809120056). The issue came up again during O’Rielly’s June reconfirmation hearing (see 2006160062).

Sen. Shelley Moore Capito, R-W.Va., appears to be a Simington supporter after their phone conversation last month. “I felt comfortable” with Simington as an FCC nominee after that, she told us. “I hope that he makes it” through the Senate before year's end. "It’s a little bit hard to imagine what’s going to be taken up” during the lame-duck session and whether there will be time to confirm Simington absent via unanimous consent, Capito said. “It’s really going to depend on what happens” in the election.

Democratic Hold?

Senate Commerce Democrats we spoke with were concerned about the plan to act on Simington after the election. They believe it would be inappropriate for the chamber to confirm him if Biden wins. Democratic leaders are actively eyeing placing a hold to block Simington if that happens, lobbyists said. Democrats want to prevent a 3-2 GOP majority or 2-2 deadlocked commission if Biden is sworn in on Jan. 20, lobbyists said.

“I’m not for fast processes” on any nominees during the remainder of this Congress, said Senate Commerce ranking member Maria Cantwell, D-Wash. “There are so many big issues related to” COVID-19 are occupying Congress’ attention, and that should remain the priority. “We should take our time, get the information and go through a thorough process,” she said.

Senate Communications ranking member Brian Schatz, D-Hawaii, and Sen. Richard Blumenthal, D-Conn., told us they also object to fast-tracking Simington during the lame duck. Neither has decided whether he will place a hold. A Senate GOP official said the chamber could still confirm Simington if the Democrats place a hold, but it would require a cloture motion and floor time that will be in short supply before the next Congress begins.

Republicans’ increased scrutiny of major tech companies and social media platforms, including during a Senate Commerce hearing last week (see 2010280063), is “helping” Simington’s cause within the caucus, said Internet Accountability Project Senior Adviser Rachel Bovard. His nomination “has become a proxy, in some ways, for the Big Tech fight,” so opposing him could be seen as “shilling for Google.” McConnell “is feeling pressure” to get Simington confirmed, but O’Rielly “has some fans” who would prefer a Biden administration renominate him instead next year, Bovard said. Thune and other senior Republicans urged Trump before the Simington nomination to reverse course and rename O’Rielly (see 2008060062).

Democrats should “absolutely” place a hold on Simington if Biden wins, “whether or not” the party wins Senate control, said Georgetown Law Institute for Technology Law & Policy's Gigi Sohn. She’s concerned FCC Chairman Ajit Pai could change his mind and decide to stay on if the Senate confirms Simington and “deny the Democrats a majority” even if Biden wins. The FCC chairman traditionally leaves at the start of the next presidential administration if there’s a switch in party control of the White House. Pai’s term ends June 30, but he could stay until the next Congress adjourns sine die if the Senate doesn’t confirm a new nominee. “The public interest community was talking to Democratic leadership to make sure” O’Rielly “didn’t get confirmed for that very reason,” before Trump decided to revoke his renomination (see 2008030074), Sohn said.

Senate Commerce leaders “wouldn’t have taken up” Simington’s nomination if they weren’t interested in confirming him, said Roslyn Layton, an American Enterprise Institute visiting scholar. Senate Majority Leader Mitch McConnell, R-Ky., “doesn’t waste time with [Trump’s] nominees,” especially “given the schedule now.” Senate Republicans want “someone in” O’Rielly’s seat before this Congress ends so the FCC has two GOP commissioners if Biden wins and Pai leaves the agency, she said. Simington remains “an unknown,” but “he’s intelligent" and “has a good resume,” Layton said. It’s “not clear where he stands” on “bread-and-butter telecom issues” like spectrum policy, but those are matters “that could be learned” during the hearing. Simington’s NTIA portfolio has included 5G security, supply chain security and the American Broadband Initiative.