Long Senate Road Ahead for Sohn, Bedoya After Tied Commerce Votes

Democratic FCC nominee Gigi Sohn and FTC nominee Alvaro Bedoya cleared an initial confirmation hurdle Thursday after the Senate Commerce Committee voted 14-14 on both picks, but they still face a long road to floor approval, said lawmakers and other officials in interviews. Panel Democrats uniformly backed Sohn and Bedoya, but all Republicans opposed them. Six of the 14 Republicans attended the executive session, fulfilling expectations they wouldn’t boycott the meeting (see 2203020076). The committee also tied 14-14 on Consumer Product Safety Commission nominee Mary Boyle. It advanced National Institute of Standards and Technology director nominee Laurie Locascio and International Trade Administration nominee Grant Harris on voice votes.

“We’ll see what happens” in the full Senate, Commerce Chair Maria Cantwell, D-Wash., told reporters after the vote. “We need functioning” operations at the FCC and FTC, something not possible while both entities remain in 2-2 deadlocks. The Thursday votes mean neither Sohn nor Bedoya is automatically advanced out of Commerce, but they give Senate Majority Leader Chuck Schumer, D-N.Y., an opportunity to have floor votes to discharge the committee from further consideration of the nominees and bring them to the floor. The Senate could then hold votes on invoking cloture and final confirmation.

“We moved them” now in hopes the Senate will be able to prioritize votes on both nominees “soon,” perhaps before the Judiciary Committee acts on Supreme Court nominee Ketanji Brown Jackson, Cantwell said. “We’ll have to see” whether that’s possible. “Obviously you can see, just like [Senate Commerce] today, you’ve got to get everybody in the Senate, at least on our side,” and “that’s not always as easy when people have illnesses and deaths in the family,” so it will require coordination, Cantwell said. Judiciary hearings on Jackson are expected to begin March 21 and committee Chairman Dick Durbin, D-Ill., is hoping a final confirmation vote can happen by April 8.

Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M, helped secure the ties on Sohn and Bedoya by showing up to the meeting in person. It was his first official Hill appearance since he began his recovery from a January stroke that partially led to the committee’s delayed consideration of the nominees (see 2202010070). “I’m ready to work,” he told reporters after the vote. Lujan “was eager” to make his Senate return last week, but some within his team suggested he take more time to get back to full strength. “The compromise was let’s get back this week,” he said. It’s no “surprise” the return came in time for votes with Sohn and Bedoya since “I have been talking about the FCC and the FTC for some time, and also on the consumer protection side.”

Cantwell defended Sohn Thursday amid criticism from Commerce ranking member Roger Wicker of Mississippi, Sen. Ted Cruz of Texas and other Republicans. Sohn is unlikely to “actively participate in partisanship or even censorship” if confirmed to the FCC, Cantwell said before the vote: The nominee "certainly knows the rules at the FCC” given her past role as an aide to FCC Chairman Tom Wheeler. Cantwell called Bedoya the “right person” to carry out the FTC’s mission. She told reporters she’s pleased Sen. Kyrsten Sinema of Arizona, the only committee Democrat who hadn’t publicly backed Sohn before Thursday, ultimately voted for the nominee but wouldn’t assign any motives for the move. Sinema’s office didn’t comment.

“I do appreciate [Sohn’s] willingness to be responsive and to engage with the members of this committee," including a second confirmation hearing last month (see 2202090070), "but unfortunately, this committee's vetting process has clarified that she is not the right choice to fill this vacancy at the FCC,” Wicker said. Republicans cited several concerns as reasons to oppose Sohn, including the nominee’s candor over her role as a board member for Locast operator Sports Fans Coalition in a shift in the settlement of broadcasters’ lawsuit against the shuttered rebroadcaster, and her social media comments about conservative media outlets.

Republicans similarly criticized Bedoya for his Twitter activity linking the Trump administration to white supremacy, which caused them to oppose the nominee during a December markup (see 2112010043). Wicker said he remains concerned by the “frequency” of Bedoya’s public, “divisive views” on policy matters, rather than “using a more measured, unified tone.” There’s been a “troubling trend of politicization” at the FTC unseen in the past, casting doubt Bedoya will bring the “cooperative spirit” needed at the agency, Wicker said.

Partisan Path Forward

The Biden administration “has ways of getting their troops” within the Senate Democratic caucus “in line,” but there’s still no guarantee either Sohn or Bedoya will clear the divided 50-50 chamber, Wicker told us. Support for Sohn in particular has become a “blood oath test … for loyalty” among Senate Democrats, said Communications ranking member John Thune, R-S.D. “I think they really worked hard to whip everybody” on the Democratic side “into line. If they could vote their state’s interest, I think you could argue a very different conclusion” might have happened Thursday.

“I would think if you’re a rural Democrat, if you’re” someone like Sen. Joe Manchin, D-W.Va., Wednesday comments from former Sen. Heidi Heitkamp, D-N.D., on “Sohn’s actions and attitudes toward rural broadband could be very problematic,” Thune told us. “If they discharge” Sohn and Bedoya from Commerce’s jurisdiction “and the Democrats can hold their caucus together” and ensure all 50 of their senators are present “they could get confirmed, but if any one of those Democrats is persuaded” by some of the arguments against the nominees, it could pose problems. Sohn's supporters and opponents will likely focus the most attention on lobbying Manchin in the weeks ahead since he has been a perennial Democratic swing vote, lobbyists told us. Manchin's office didn't comment.

Sohn “has made numerous public statements that call into question whether she will work to bring broadband to all rural Americans expeditiously,” Heitkamp said in a Medium post. She in part cited Sohn’s 2020 House Communications Subcommittee testimony that “policymakers have focused disproportionately on broadband deployment in rural areas of” the U.S. (see 2001290052). “Sohn has also been a longtime advocate of ‘overbuilding,’ spending taxpayer dollars to build government-run networks in areas that already have service. This drains resources that should otherwise be going toward those Americans, overwhelmingly in rural areas, that have no service options.”

Lujan is hopeful Sohn and Bedoya will get 67 or 68 votes on the Senate floor, which would be in line with the chamber’s level of support last year for the Infrastructure Investment and Jobs Act (see 2108100062). “When we’re building out broadband in America, if we don’t get the FCC and the FTC ready to roll ... it’s not going to get done,” he said.

Sen. Amy Klobuchar of Minnesota and other Commerce Democrats we spoke with believe the committee’s tied votes on Sohn and Bedoya provide a clear if prolonged opening for their confirmation. “It’s going to take additional time” given the need for three floor votes instead of the two usually needed for nominees who can’t move via unanimous consent, said Sen. Jon Tester of Montana. “But there is a pathway to get that done, unlike” for a group of Federal Reserve nominees the Banking Committee Republicans have temporarily held up by boycotting committee meetings.

Getting floor time for Sohn and Bedoya is “going to be a challenge,” but Thursday’s results are a step forward, said Sen. Brian Schatz, D-Hawaii: “We’ll have a full complement eventually" at both the FCC and FTC, "but we’re going to have to wedge in these nominations as soon as possible. Republicans aren’t going to make it easy for us, but now that [Lujan] is back, we have the votes.”

Holds Ahead

Commerce Republicans during and after the Thursday meeting confirmed they plan to place holds on Sohn and Bedoya. A hold prevents the Senate from moving a nominee via unanimous consent, so placing them on Sohn and Bedoya won’t hurt their prospects, Hill aides and lobbyists told us. The level of GOP opposition to both nominees has always made it likely that floor votes would be necessary to confirm them, the aides and lobbyists said.

Senate IP Subcommittee ranking member Thom Tillis, R-N.C., confirmed to us he still plans to place a hold on Sohn, as he has long threatened (see 2112010043). If anything, “I’ve doubled down” in opposition to Sohn, Tillis said. “We’re talking about someone who’s wanting to rob intellectual property" via Sohn's Locast role, so "I’m working hard to make sure we have opposition” sufficient to sink her confirmation.

“There’s certainly widespread concern about the direction” of the FTC under Chair Lina Khan, but Sohn and Bedoya “are both extreme nominees, so there’s particular concern about both of them,” Cruz said. “It will take presumably every single Democrat to force” Sohn’s confirmation “and I hope at least one Democrat is concerned about protecting freedom of speech … about not allowing government power to be used for censorship.” Cruz hopes “at least one Democrat cares about rural America and listens” to Heitkamp’s concerns and “cares about ethics and transparency. All of those are disqualifying issues. We’ll see if the Democrats choose to vote party line and put partisan politics above principle.”

Cantwell told Cruz she expects much more discussion with him about speech, privacy and content moderation-related issues. She said she would “like to do something” on a bipartisan bill from Schatz and Thune (see 2103170058), the Communications Decency Act Section 230-related Platform Accountability and Consumer Transparency Act (S-797). Cantwell believes it will take a lot of work to “dissect” the issue correctly.

Sen. Roy Blunt, R-Mo., said during the meeting he plans to place a hold on Bedoya. Blunt told us his concerns stem from the current FTC’s “incredibly limited understanding” of how to apply marketplace standards in merger cases. Blunt during the meeting noted his frustration about the FTC’s review of a potential purchase of a Missouri pet food company by a “slightly bigger” company. The family-owned company could have sold to a private equity group but chose not to, he said. Blunt said he will place a hold on the nomination until the FTC is “more responsive and more reasonable about looking at this and other acquisitions.” The agency didn’t comment.

Blunt noted Bedoya hasn’t shared a particular philosophy about mergers, but FTC staff has been unresponsive on the issue. There are numerous examples in Missouri and elsewhere showing the FTC is “totally unrealistic in recognizing what today’s marketplace looks like,” he told us. “Part of approving a merger is whether that merger significantly impacts competition. To truly evaluate that, you have to be realistic about what the competition is, and they are not.”

“I still have issues with” Bedoya, Sen. Dan Sullivan, R-Alaska, told us. The process for advancing the nominees will mean additional votes and time that Schumer “doesn’t normally want to give up,” he said. Depending on how Schumer prioritizes floor time, the nominees aren’t going to be “seeing the light of day any time soon,” Sullivan said. He and Cruz previously raised concerns about Bedoya’s Twitter activity (see 2111170059). Sullivan on Thursday noted the Fraternal Order of Police’s continued opposition to Sohn.