Yes, Elections Matter

This week, Republicans took control of the Senate, expanded their hold on the House, and defended some of the most closely contested governors’ races, in a repudiation of President Barack Obama that will reorder the political map in his final years in office. Although all races have not been decided, Republicans in the House are likely to enjoy their biggest majority since the Truman administration. Democratic midterm losses during the Obama presidency now rival those of both Richard M. Nixon in 1974 and Bill Clinton in 1994 as the most destructive to his party’s political standing in Congress in the post-World War II era. It was a stunning reversal for the President, who was the first Democrat since Franklin Roosevelt to twice win a majority of the national vote.

Although the full impact of the election will not be known for some time, we can take a look at who’s in and who’s out for the 114th Congress. Of note, when the new Congress convenes in January, it will be the first to have at least 100 female members. While this is a historic high for women in Congress, it's also far from representative of America's demographics. Women now make up 19 percent of federal legislators -- and 50.8 percent of the entire population. It's still true that women are better represented in Afghanistan's legislature than they are in the United States Congress.

At Headlines, we keep a close eye on two key Congressional committees because of their jurisdiction over many telecommunications issues and oversight of the Federal Communications Commission: the Senate and House Commerce committees. For the past few years, the Senate Commerce Committee has been chaired by Sen. John Rockefeller IV (D-WV). He is retiring in 2015 so did not seek reelection. With Republicans taking over control of the Senate, current committee Ranking Member John Thune (R-SD) is expected to rise to chairman.

Politico’s Tony Romm believes Sen. Thune will facilitate work on a host of Republican priorities like rewriting telecommunications laws and scrutinizing government agencies like the FCC. The Senator used a June speech to outline his hope that the chamber in 2015 would follow the House Commerce Committee and its leader, Chairman Fred Upton (R-MI), and consider “what a Communications Act update might look like.” This fall, Sen. Thune toured Silicon Valley and held meetings with companies like Google, Facebook and Twitter -- tech giants he will soon oversee -- in part to discuss tax reform. A Thune spokesman indicated his priorities will include: 1) monitoring the FCC's spectrum auctions; 2) rethinking cable transmission rules; and 3) addressing patent court battles.

In his new leadership post, Sen. Thune may actually take a more middle-of-the-road approach to telecommunications issues than his House counterparts, including as he looks to update the Communications Act, according to Public Knowledge Senior Vice President Harold Feld. Feld pointed to a statement Sen. Thune issued in June that applauded the FCC for bringing penalties against telephone companies that failed to abide by rural call completion rules. Sen. Thune also called for more intervention on the issue. Messaging like that indicates that Sen. Thune has a more moderate tone on some telecom topics, especially those that affect his rural constituents, Feld said.

Sen. Bill Nelson (D-FL) is likely to be the new Ranking Member of the committee. Although Sen. Nelson may be better known for space policy, he has a great deal of experience with communications policy, too. He long has championed an expansion of the FCC's rules requiring greater disclosure of political advertising -- a major flash point with the GOP. He's backed data security legislation that Democrats long have tried and failed to move to the full Senate, and he's supported high-skilled immigration reforms. He's been vocal recently about network neutrality, writing, "I believe the Commission can, and should, draw a brighter line on paid-prioritization agreements. ... I also urge the Commission to carefully consider whether Section 706 provides the best pathway for these rules or whether Title II ... provides a more sound approach."

The committee’s Communications, Technology, and the Internet Subcommittee has been chaired by Sen. Mark Pryor (D-AR), but he lost his reelection bid to Rep. Tom Cotton (R-AR). (The newly-elected Cotton may be a voice in the surveillance debate -- he gave a speech last year defending the NSA's controversial collection of phone metadata.) Sen. Roger Wicker (R-MS) has served as the Ranking Member of the Communications, Technology, and the Internet Subcommittee since 2013, so may become the chairman. When he became the Ranking Member he said, “I look forward to examining the current state of the communications and technology sectors to ensure quality broadband access to all corners of America, particularly in rural areas like my home state of Mississippi. I will continue to work with my colleagues to achieve a level playing field for all broadband providers. Now is a good time to seriously examine our nation’s telecommunications laws to create a framework that enhances marketplace flexibility, promoting the best services at the most competitive rates to consumers. As our economy recovers, the telecommunications, media, and technology industries offer lessons for job creation and growth. Broadband access is necessary for economic development for the 21st-century workforce. We need the continued growth and innovation that increased broadband access provides.”

On network neutrality, Sen. Wicker has been in lockstep with Sen. Thune. When the U.S. Court of Appeals for the D.C. Circuit overturned some of the FCC’s net neutrality rules earlier this year, the senators released a joint statement expressing concern that the ruling granted the agency “virtually unlimited power to regulate the Internet under Section 706 of the Telecommunications Act.” They urged FCC Chairman Tom Wheeler to abide by a promise he made during his confirmation process to “come to Congress for direction before pursuing any new net neutrality rules.”

With Pryor’s loss coupled and Rockefeller’s retirement, some observers see a gap in leadership on telecommunications and technology issues for Senate Democrats on the committee. In the 113th Congress, Democrats held 13 Commerce Committee seats while Republicans held 11. If the total make-up of the Senate essentially flips and Republicans claim a total 53 seats in the 114th Congress as Democrats (plus Independents) do in the 113th, Democrats will likely have just 11 seats on the next Commerce Committee while Republicans will have 13. So Sens. Rockefeller and Pryor are unlikely to be replaced by new Democrats. Some are looking at current Committee members Sens. Claire McCaskill (D-MO) and Amy Klobuchar (D-MN) to fill that vacuum. Both have handled telecom issues as chairwomen of the subcommittee on consumer protection (McCaskill) and the Judiciary subcommittee on antitrust (Klobuchar).

Another contender to take a leading role is Sen. Ed Markey (D-MA), who joined the upper chamber from the House in 2014 and just won reelection for a full term beginning in 2015. Public Knowledge Senior Vice President Harold Feld pointed to Markey's track record on telecommunications issues, including his work on the 1996 Telecommunications Act. According to Feld, Sen. Markey is "one of the most knowledgeable members of the committee" when it comes to telecommunications, and "can be a real driver on the committee, even in the minority," especially when working with other committee members like Sens. Richard Blumenthal (D-CT) and Cory Booker (D-NJ). Feld cited Markey's recent work to hold up a Senate bill to reauthorize an expiring satellite TV law as an example of Sen. Markey exercising "the kind of leadership that goes beyond what you would expect given [his lack of] seniority."

On the House side, Commerce Committee Chairman Fred Upton (R- MI), Communications Subcommittee Chairman Greg Walden (R-OR) and Subcommittee Ranking Member Anna Eshoo (D-CA) all won reelection. But Chairman Upton’s reelection was closer than might have been assumed. Michigan's 6th District ran largely under the radar this cycle; Rep Upton, the 14-term incumbent, regularly cruises to victory with 60 to 70 percent of the vote, going back to 1986. His tightest margin -- 54 percent -- came just two years ago. In the last week of this election, Paul Clements, a political science professor at Western Michigan University and Upton's little-known challenger, released polling that showed him trailing by only 4 points. Chairman Upton out-raised his challenger by a little more than 4-to-1 this cycle. But MayDay Pac, an outside group that has received large donations from the technology industry, announced in October it would spend $2 million in the district. MayDay Pac, which aims to elect lawmakers focused on campaign finance reform, launched a series of attack ads against Chairman Upton, accusing him of being beholden to the drug, insurance and oil industries.

Most notable for the Committee’s make-up, Ranking Member (and former Chairman) Henry Waxman (D-CA) is retiring. Rep. Eshoo or Rep. Frank Pallone (D-NJ) will rise to be a full Committee ranking member; Silicon Valley is putting its lobbying weight behind Rep. Eshoo. Democrats are also losing former Committee Chairman John Dingell (D-MI) to retirement. Rep. John Barrow (D-GA) -- who asked the FCC not to reclassify broadband -- lost his seat to Rick Allen (R-GA). On the GOP side, current Rep. Bill Cassidy (R-LA) is expected to beat Sen. Mary Landrieu (D-LA) in a runoff election. And Rep. Lee Terry (R-NE) lost his reelection bid. Rep. Terry was an active voice on quite a few technology issues especially patent reform.

Subcommittee Chairman Walden is also chairman of the National Republican Congressional Committee. His fundraising efforts helped Republicans with a better-than-expected showing and that could breathe new life into the race for the next NRCC chair. Chairman Walden plans to run again, and now he says he's expecting his colleagues' support. "I am pretty confident that my Republican leaders are standing behind me, as my conference will. I think it's all about getting the job, focusing on the job at hand," he said. "The job at hand was use the resources we had to win as many races as we could."

So what’s on the agenda moving forward?

The day after the election, Chairman Upton released a statement on his priorities for the next Congress saying, “We have … spent the past year gathering input and information to inform our work to bring the nation’s communications laws into the 21st Century. Over the next several months, we will take what we have learned from our hearings and white papers to update the law to boost job creation and economic growth in the innovation era. Likewise, we have made progress on key issues to consumers, workers, and job creators, exploring issues that range from data protection to privacy to manufacturing. We will continue to advance these priorities in the coming year.”

The National Journal writes, “[Top Republicans’] effort to rewrite the Communications Act could have broad implications for how we all communicate and consume information. But the whole plan could collapse amid partisan fighting over net neutrality.” They're fiercely opposed to any regulation of Internet service, and many conservative lawmakers will demand that Congress strip the FCC of authority over the issue. But any bill trying to do so would almost certainly be vetoed by President Obama.

Don’t forget that that Republicans tried to rewrite communications law back in 2006 through a bill guided through the House by then-Commerce Committee Chairman Joe Barton (R-TX). The bill died in the Senate, derailed by partisan battles over net neutrality.

Many people agree that the Communications Act is outdated. The law was last updated in 1996, when most people were still accessing the Internet on dial-up connections. But rewriting the law will be no easy task. Tweaking one provision might boost some industries while costing others billions of dollars. Some of the nation's biggest and most powerful corporations are going to be ready to fight for their own interests. The Washington Post offered a quick take on how complicated a rewrite could be.

Look for lawmakers to review the FCC's subsidy programs for rural and poor consumers, called the Universal Service Fund; its authority over telecommunications mergers; its management of the nation's airwaves (also known as spectrum); and the various regulatory perks and obligations that local broadcast TV stations have.

Here’s some other issues that could be considered:

  • National Security Agency reform: Will Congress consider Senate Judiciary Committee Chairman Patrick Leahy’s (D-VT) version of the USA Freedom Act in the last days of the 113th Congress? Or will the GOP block the bill now knowing they will get a better hand -- and credit -- on an NSA reform package come January? The Patriot Act will sunset June 1, 2015. Maybe that deadline pushes the GOP to tackle the issue now?
  • Cybersecurity: Sen. Dianne Feinstein is still pushing her bill to help companies share cyber threat information, but it seems unlikely to get a vote during the Lame Duck session. Sen. Richard Burr (R-NC) is expected to be the next Intelligence Committee chair and may push a version of the Secure IT Act which he sponsored in 2012.
  • Privacy: E-mail privacy legislation may have a better chance of passage under the new Republican Congress. Even though law enforcement has invoked a rule called the Third Party Doctrine to argue that they can obtain digital information with a simple subpoena -- and little or no judicial oversight -- Republicans tend to be more skeptical of regulatory agencies than Democrats. Expect Rep. Jason Chaffetz (R-UT) to play a big role on this issue.

Of course, we'll be tracking it all -- and we'll see you in the Headlines.

If all of this just whets your appetite for more speculation, here's a little additional reading:

By Kevin Taglang.