Could FCC Commissioner Choose Nuclear Option And Resign To Protect Net Neutrality?

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Later this week, the three sitting members of the Federal Communications Commission are expected to vote 2-1 in favor of officially beginning the process of killing net neutrality. The lone neutrality defender on the FCC stands little chance of swaying her colleagues, leading some to speculate that she could slow down the repeal effort by removing herself from the equation altogether.

Lawmakers and media have been floating the notion that Commissioner Mignon Clyburn could resign since Ajit Pai was elevated from Commissioner to FCC Chair by the Trump administration.

Clyburn’s exit would almost certainly delay the effort to undo net neutrality rules, but the actual impact of this nuclear option depends on a number of factors involving the inner workings of the FCC.

The Rules

The law that gives the FCC authority to do stuff is Title 47 of the U.S. Code. And buried in there is a section of law that explains what the FCC is and how it needs to work.

Five Commissioners: The Commission “shall be composed of five commissioners appointed by the President, by and with the advice and consent of the Senate, one of whom the President shall designate as chairman.”

That means that the full membership of the FCC is five commissioners, which will be important in a minute.

The process is good old checks and balances at work: The White House selects Commissioners and the Senate confirms or blocks them.

Five Years: Once a majority of the Senate has agreed that a President’s nominee is acceptable, that person gets confirmed to serve a five-year term.

There’s an exception to that five-year thing, though: Someone whose term expires and who isn’t immediately re-confirmed can stay on to “the expiration of the next session of Congress subsequent to the expiration of said fixed term of office.”

Sessions of Congress typically run for one year, with two sessions per Congress. The 115th Congress convened its first session on Jan. 3, 2017, and will begin the second in 2018. The 116th Congress does not start until Jan. 2019.

Clyburn’s term expires on June 30, 2017. That means she could theoretically stay on without being re-confirmed not only through the 2017 session of Congress, but through its 2018 session as well. So although she’s got less than two months left officially, in reality it could run up to almost two more years.

Party Alignment: There’s a reason we’re used to seeing the Commission line up on a 3-2 majority/minority split.

The law says: “The maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.”

That is the most confusing possible way that this rule could be written.

In order for it to make sense, you have to remember that the full membership of the Commission is five Commissioners. The minimum number to be a majority of five is three. Therefore, no more than three members of the Commission may be members of the same political party.

Because the President gets to do the nominating, the majority party in charge of the FCC is traditionally the party in the White House. So from 2001-2008, the Commission had a Republican chairman and majority; from 2009-2016, a Democratic chairman and majority.

Now we’re back to a Republican majority… but we’re not at full membership.

Vacancies and Quorum: The Commission is supposed to have five members, but it can get by when it’s not at full strength. Two lines in the law guarantee that.

The first has to do with vacancies: “No vacancy in the Commission shall impair the right of the remaining commissioners to exercise all the powers of the Commission,” the law reads.

The other specifies a quorum: “Three members of the Commission shall constitute a quorum thereof.”

So you can legally act with a Commission made up of as few as three Commissioners. Since the seats held by former Chair Tom Wheeler and former Commissioner Jessica Rosenworcel still sit empty with no nominees for them, that’s where we are today.

Devil in the Details: It is particularly worth noting that the law does not say that a quorum has to be politically split. No more than three members can be from one party, and no fewer than three members are needed to continue operations — but those three can be the same people. That means as far as the law is concerned, a 2-1 majority split and a 3-0 majority are both equally valid.

So Why The Chatter About Resignation?

If any of the three current Commissioners were to leave office tomorrow for any reason, the Commission’s business would basically have to grind to a halt. Until a replacement could be nominated by the White House and confirmed by the Senate, the FCC would be below quorum and could not vote to adopt or consider anything.

So what are some of the ways that could play out?

Scenario 1: Clyburn continues as opposition.
This is the status quo: Clyburn stays right where she is, serving as opposition to Chairman Ajit Pai’s agenda within the FCC when she feels he’s doing something harmful.

The downside is, she will continue to get steamrolled as the lone minority member, in a series of 2-1 votes. The upside is, she gets to keep having a voice within the commission. Until or unless we hear news otherwise, this is probably the best thing to expect.

Scenario 2: Clyburn surprise resigns this week or no-shows the May 18 meeting.
None of the D.C. rumor mill expect Clyburn to resign this month, or to skip the Commission’s open meeting on May 18. If she were to do either, the FCC would face the quorum problem, and would have to delay the votes on all six of its agenda items for the meeting.

If she didn’t attend, any delay would be for the short term only. If she quit, a delay would be longer, while the Administration came up with someone to nominate for the seat and the Senate took its time confirming that person.

However, nobody really expects this to happen.

Scenario 3: Clyburn leaves when her term expires.
Her term draws to a close on June 30. While Clyburn has the option of remaining in her position for months or years waiting for the Senate to re-confirm her, she does not have to. She could simply choose to walk away.

That would once again present the Commission with the quorum problem, just a little bit later. The Senate would still have ample time to confirm someone — who could be a Republican — and Pai would be able to work through his agenda in 2018.

Scenario 4: Clyburn stays past June, but leaves right before a vote on an Order.
The proposed rule on which the FCC will vote May 18 is only the first step in a very long process. This month’s vote only says yes, the FCC will consider changing a rule maybe.

Nothing actually changes until the Chairman puts forth an Order — the last step of the process. The earliest that could happen, given the timetable Pai’s office has announced so far, would be September.

At this point, every choice becomes a high-stakes gamble with few certain outcomes. And whether or not it’s a good bet depends entirely on timing.

The next major election that could completely change everything isn’t the 2020 presidential race; it’s the 2018 midterms. Democrats around the country are considering the possibility that being tied to the unusually chaotic Trump White House could bog down Republican members of Congress in their bids for (re-) election, possibly causing one or both chambers to change hands.

That potentially sets up a situation where the best Clyburn can do is stall for time. Resignation is, basically, a nuclear option always available to her. But if she can push it into late fall 2017 or even early 2018, that increases the odds that Democrats currently in the Senate could delay or obstruct the confirmation of a replacement until the midterms.

If the Senate were to tip towards the Democrats after Nov. 2018, that would then dramatically change who could get confirmed for any empty seats on the Commission, and while there would still have to be a 3-2 split, lawmakers would likely push for candidates less hostile to policies like net neutrality.

That gamble, of course, is predicated on a lot of “ifs.” But the longer she stays on the Commission, the less she has to lose by leaving before she technically has to. Without re-confirmation, Clyburn is out of a job after the 2018 midterms regardless — so in an increasingly bitter fight, quitting at the right moment may yet turn out to be the best weapon the commissioner has available.

UPDATE: When reached for comment, Clyburn’s office pointed us to the Commissioner’s comments made this afternoon in an appearance at TechCrunch Disrupt. She doesn’t actually address the issue of the nuclear option, but Clyburn does repeatedly make it clear that as long as she remains with the FCC she will continue to champion an open internet.

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