Sohn Supporters, Opponents Eye Lame-Duck Confirmation Push Amid Busy September

The Senate is highly unlikely to act on FCC nominee Gigi Sohn before the November election amid a busy legislative calendar and a campaign-centric atmosphere on Capitol Hill that’s made confirmation next to impossible for any Biden administration picks who lack GOP support, lawmakers and lobbyists said in interviews. Top Senate Commerce Committee Republicans all but shot down speculation that circulated during the August recess that pairing Sohn with an eventual replacement for retiring GOP FTC Commissioner Noah Phillips (see 2208170039) could ease GOP opposition to the FCC nominee’s confirmation.

Sohn’s confirmation process remains stuck in the same place it’s been since early March, when Senate Commerce tied 14-14 on advancing her appointment to the full chamber (see 2203030070), lobbyists told us. Three undecided Democratic senators -- Catherine Cortez Masto of Nevada, Mark Kelly of Arizona and Joe Manchin of West Virginia -- are likely to not declare their final position on the nominee until after the midterm election results are clear, lobbyists said. Senate Majority Leader Chuck Schumer, D-N.Y., is hesitant to put Sohn up for even an initial vote to discharge her from Commerce’s jurisdiction without assurance that the trio will back her given all 50 of the party’s members would need to back the nominee to overcome expected unanimous GOP opposition, lobbyists said. The senators’ offices didn’t comment.

The ongoing stall has fueled chatter about whether the White House will be committed to keeping Sohn’s nomination alive through the end of this Congress. Sohn’s opponents on and off Capitol Hill cite rumors the Biden administration recently asked the nominee for a second time to withdraw herself from consideration. A White House official insisted there’s been “no change” in the Biden administration’s position on Sohn and said she remains “our nominee.” Sohn’s supporters insist she will remain the nominee at least until the end of this Congress but acknowledge her chances of renomination in 2023 are murky.

Sohn’s backers and detractors believe it wouldn’t serve the Biden administration’s interests to withdraw her nomination now because there’s no longer enough time in this Congress to take a replacement nominee through the Commerce Committee confirmation process and to the floor for a final vote. The White House would likely have needed to ensure Sohn’s withdrawal during the summer to give a replacement a reasonable chance at confirmation this cycle, lobbyists said.

Pre-Election Priorities

Senate Commerce Chair Maria Cantwell, D-Wash., swatted down rumors, saying she’s heard nothing from the Biden administration to indicate a plan to reverse course on Sohn at this point in the cycle. Cantwell left open the possibility that the Senate could still turn to Sohn this month but acknowledged “judges right now are taking priority” for floor time. The chamber is, in part, grappling with structuring a continuing resolution to fund the federal government past Sept. 30 that could include language to temporarily renew the FCC’s spectrum auction authority while talks continue on a more comprehensive measure (see 2209090053).

There have also been “quite a few absences” among Democratic caucus members since the Senate returned from recess last week, meaning there’s been no guarantee of 50-50 parity with Republicans needed to advance nominees like Sohn, who are unlikely to get bipartisan backing, Cantwell said. Three Senate Democrats were absent the entirety of last week while they recovered from COVID-19. Two Democrats -- Tammy Duckworth of Illinois and Maggie Hassan of New Hampshire -- were absent from Tuesday votes, but it wasn’t immediately clear whether either of them would be out the entire week.

“With as much as we have to do” before the Senate leaves in late September for the pre-election recess, “I wouldn’t think” a fight on Sohn’s confirmation would be a top priority for Schumer and other leaders, said Commerce ranking member Roger Wicker, R-Miss. President Joe Biden “should withdraw” her instead. “I think there’ll be very little appetite to try and process her confirmation between now and the end of the year,” said Senate Communications Subcommittee ranking member John Thune, R-S.D.

Sohn’s confirmation prospects were “hard before” given strong GOP opposition, but “now we’re in a more politicized environment” ahead of the election, so “that’s just gotten even harder,” said Thune, who’s also Senate minority whip. “Politically, she would be a hard vote for a number of Senate Democrats” and holds “radical views” on “issues that would come before the FCC,” said Sen. Dan Sullivan, R-Alaska: Her withdrawal “would be great news.”

'Holding Pattern'

Senate votes on Sohn “should have already taken place” given “it appears to me” she “has broad support” within the Democratic caucus, said Communications Chairman Ben Ray Lujan, D-N.M. Senate Republicans have generally been “opposing many of” Biden’s nominees this year “not because of the person but because of other issues,” including growing partisanship ahead of the midterm election. “We’re in a holding pattern” on Sohn, largely because her opponents “have viciously and falsely attacked her,” said Sen. Brian Schatz, D-Hawaii. “Her reputation has been unfairly tarnished” given “she’s a person of sterling integrity” and “conducted herself well” throughout the confirmation process.

“It’s frustrating to see the Senate not take action” to advance Sohn, said House Communications Subcommittee Chairman Mike Doyle, D-Pa. “I fear the Republicans are just trying to run the election clock out.” He hopes the Biden administration and Schumer “are starting to push hard on this,” but at “a certain point, [Sohn] or the administration needs to make a decision on how this moves forward. I would hope that would move forward with her getting on the FCC, but at some point we have to have” a five-member commission. “I don’t think it benefits anyone to have this 2-2 tie go on indefinitely,” Doyle said.

Work on the CR, among other matters, “could take up the bandwidth of the September work period” and there’s likely “to be a lot of incentive to try to get out” early as the midterm campaign “heats up,” said Public Knowledge Government Affairs Director Greg Guice: “We would love” for Schumer to “call the vote” before the end of September, “but it’s likely that this work period’s not going to be ideal. The post-election” lame-duck session “might be better.”

If the Democrats retain control of the Senate in the election, “I don’t know that [Sohn] will be confirmed in the lame-duck session because there will still be a lot of different things” on the chamber’s agenda, but “I think it’s likely that she or another Democrat would be confirmed during the first part of next year,” said New Street’s Blair Levin: If the Republicans win control of the chamber, “I don’t know whether they will confirm any Democrat” to the commission, so there will likely “be an effort to confirm her during the lame-duck” if possible.

FTC Pairing?

Cantwell, Wicker and Lujan told us they weren’t aware of speculation about pairing Sohn with a new FTC GOP nominee. “This is the first I’ve heard of it,” Wicker said. Pro-Sohn officials told us they believe the White House can leverage Republicans’ desire for a strong GOP opposition at the FTC against Chairwoman Lina Khan’s ongoing privacy rulemaking and other controversial Democratic actions. Such a pairing would depend on Biden naming his pick to replace Phillips in time for Senate Commerce to begin the confirmation process immediately after the election. One official suggested the nomination of a popular Senate GOP staffer to the FTC seat could expedite Sohn's confirmation process.

Thune was dubious that a new pairing would help Sohn with Republicans. “There’s a pairing to be had there, but I don’t think it’s with Sohn,” he said. “It seems to me the votes are there” to confirm Sohn regardless of whether there’s a Republican nominee to pair with her, Lujan said. Schatz believes that pairing could be “a possibility” for easing Sohn’s confirmation process but cautioned he didn’t “want to make an assumption” that the chamber “can’t get her through in the meantime” on her own.

Wicker touted two of his Senate Commerce GOP aides -- Olivia Trusty and Crystal Tully -- as strong contenders to replace Phillips. “They surely would be good,” he told us: “Either one of them would be a credit to the country.” Sen. Josh Hawley, R-Mo., believes his chief counsel, Josh Divine, “would be great. I don’t have any idea who the nominee will be, though.” Divine, Trusty and Tully are all viewed as among the leading candidates to take over the FTC vacancy, as are Senate Judiciary Committee Senior Counsel Rachel Bissex and Gibson Dunn’s Svetlana Gans, who was previously chief of staff to Republican former acting FTC Chairman Maureen Ohlhausen (see 2208170039).

Sohn “has been waiting around for a long time,” so if Phillips’ replacement “gets named, gets through the Senate Commerce process, then in a lame-duck session they should absolutely be paired together,” PK's Guice said: “The FTC nominee should not be allowed to move without” also confirming Sohn. She “should move on her own” given she’s already moved through an arduous confirmation process, “but if it’s necessary, then a pairing should absolutely be on the table,” Guice said.

Pairing Sohn with a GOP nominee to another post that Republicans “really want” to fill is “certainly a possibility” for improving the FCC pick’s prospects, but “what they get with a second Republican FTC commissioner is a dissenting voice” on a 3-2 Democratic majority commission, Levin said: “Are you going to give a majority to the Democrats” at the FCC “in order to get another dissenting voice at the FTC? That doesn’t sound like” something Senate Minority Leader Mitch McConnell, R-Ky., would back. “On the other hand, I am certain that there are very powerful folks within the Republican Party who care a lot more about the FTC than the FCC these days for whom a dissenting voice is really important because it increases their odds of defeating” FTC actions in federal court, Levin said.