When Democratic lawmakers first hatched a plan to use the obscure Congressional Review Act to repeal the Republican-led Federal Communications Commission’s December rollback of its net-neutrality rules, most observers expected the measure would simply force Republicans into taking an uncomfortable vote to defend an unpopular policy.
But that was before a special election in Alabama unexpectedly reduced the Republican Senate majority to one vote—and well before GOP Sen. Susan Collins decided Tuesday to cast her lot with the Democrats on net neutrality. Because CRA resolutions allow Congress to overturn regulatory actions at federal agencies through a simple majority vote, Democrats suddenly find themselves just one Republican short of victory in the Senate. And because of the procedural mechanisms underpinning the CRA, they’ll likely have months to keep up the public pressure on their GOP colleagues.
That doesn’t mean it’ll be easy to find a Republican willing to buck party leadership, which still backs the FCC’s December vote to repeal the rules preventing internet service providers from blocking, slowing down, or prioritizing web traffic. Collins had already announced her opposition to the FCC’s net-neutrality plan last month, so her decision to join the Democrats was hardly a surprise.
But liberal and conservative tech advocates agree that Republicans from rural states, where there is often little competition between internet service providers, are uniquely susceptible to pressure from net-neutrality activists. And at least two Senate Republicans—John Kennedy of Louisiana and Dean Heller of Nevada—appear vulnerable to Democratic overtures.
“There a lot of nuances, and there are very good arguments on both sides,” Kennedy told reporters Thursday. “I’m honestly undecided. Right now, to me, it’s a very, very close call.”
Heller’s office did not respond to a request for comment. But the senator’s precarious position in his upcoming reelection bid has observers questioning whether he’ll stick his neck out to defend a policy that consistently polls poorly even among Republicans. A Democratic Senate aide told National Journal that Heller “is easily the most recognizable” target for Democratic efforts to flip a Republican to their side, before adding that the senator from Nevada has shown a “propensity toward consumer issues.”
The Democrats’ net-neutrality CRA resolution is spearheaded by Sen. Ed Markey and backed by Minority Leader Chuck Schumer. House Democrats, led by Rep. Mike Doyle, are pursuing a similar measure, though the path to victory is far less clear in the lower chamber.
In a Tuesday press conference highlighting the effort, Schumer stressed the importance of making net-neutrality a problem for vulnerable Republicans in November. “Make no mistake about it: Net neutrality will be a major issue in the 2018 campaigns,” he said, noting that millennial voters are particularly supportive of the old net-neutrality rules.
But Senate Democrats are increasingly waking up to the fact that they could actually win this vote, and are leaving no stone unturned.
“51,” said Sen. Brian Schatz, when asked how many Republican senators he and his Democratic colleagues are lobbying to flip on the issue.
Still, most Republicans, even those who have recently shown an independent streak, are saying they’ll stick with the FCC. Sen. Bob Corker, who last year clashed repeatedly with the Trump administration, said he won’t join the Democrats’ net-neutrality CRA resolution. Sens. Jeff Flake and John McCain—both of whom bucked the White House and Senate Republican leadership at times last year—are also unlikely, with Flake flatly stating that he would not join the Democratic effort.
Sen. Lisa Murkowski helped sink her party’s push to repeal the Affordable Care Act last year. But on Wednesday, the senator from Alaska told National Journal that she is “probably not going to be jumping on the [net-neutrality] CRA.” Echoing Senate Commerce Committee Chairman John Thune, Murkowski says she wants Congress to tackle net-neutrality through legislation. The CRA, she believes, may be counterproductive to that effort.
But Murkowski represents one of the most rural states in America. Consumers in these states often feel at the mercy of one or two ISPs, and Murkowski admitted that both she and her colleagues have been inundated with messages in support of net neutrality. “Certainly we all have our constituencies that are engaged on the issue,” she said. “We get a lot of mail on this front.”
Gigi Sohn, a fellow at Georgetown Law’s Institute for Technology Law & Policy and a former top aide to ex-Democratic FCC Chairman Tom Wheeler, says even Republicans who’ve refused to join now may change their mind later. “I don’t think you can give up on anybody,” she said. “Murkowski might have to change her mind, particularly because I think the impact on rural carriers could be quite bad.”
Sohn also notes that the procedural mechanisms of the CRA don’t kick in until the new rules are published in the Federal Register and sent to both congressional chambers. After that, lawmakers will have 60 legislative days—a few months in the real world—to overturn the rules.
“We control the clock on this,” she said. “It’s not going to be a 24-hour push. We’re going to have months to do this.”
While Senate Democrats still have yet to get all of their own members on board, they’re expected to announce their unified support sooner rather than later. “I think we’ll have everybody,” the Democratic aide told National Journal on Wednesday.
Democrats plan to push for the vote before Congress leaves for the summer recess in order to give candidates a political weapon going into the November elections. Schatz said to expect the Senate vote in the spring, with May floated as the most likely time frame.
Conservatives see the danger and are working to shore up shaky Republicans, particularly in rural states. “Heller is definitely on my list,” said Jason Pye, the head of legislative affairs at the conservative FreedomWorks. “He’s somebody that we’re going to go swing by and talk to, especially after Collins.”
Pye added that it’s not just vulnerable Republicans such as Heller who they will be targeting. “Anybody who’s from a more rural state is somebody you have to watch out for,” he said, highlighting Colorado’s Cory Gardner as a key member.
To convince lawmakers that the FCC’s rule change was justified, Pye says he’ll appeal to their ideology. “We’re just reiterating that the free-market position is not the same kind of public utility, common-carrier regulation that we’ve seen stifle competition—in the telephone sector, the railroad, the airlines, trucking—throughout the 20th century,” he said.
Even if the push for a net-neutrality CRA is successful in the Senate, the proposal remains a long shot in the House. Doyle has yet to attract a Republican lawmaker to his own CRA resolution, and the House has typically taken a more conservative stance on telecommunication issues than the Senate.
But after unexpected momentum in the Senate, Sohn cautions against assuming the House is a lost cause.
“Is it gonna be a challenge? Absolutely,” Sohn said. “Is it impossible? It’s incredibly possible—look what we did in 24 hours on the Senate CRA.”