A Hail Mary pass thrown by Senate Democrats on net neutrality is about to find its way into the end zone.
On Wednesday, Sens. Chuck Schumer and Ed Markey will introduce a petition to force a vote on their resolution to undo last year’s rollback of the Federal Communications Commission’s net-neutrality rules, which prevented internet service providers from blocking, slowing down, or prioritizing web traffic.
The resolution is being pursued under the Congressional Review Act, which requires the support of just 30 senators to compel a vote and a simple majority to pass. And despite Republican control of the upper chamber, one GOP defection and another long-term absence is set to hand the Democrats a win on the hot-button tech issue.
A full 50 senators came out months ago in support of the resolution—including every member of the Democratic caucus and Sen. Susan Collins, the Maine Republican known for bucking her party. On Monday, Collins told reporters that, despite the best efforts of some of her GOP colleagues, she won’t be changing her mind.
But until recently, the fruitless search for another Republican to push the resolution over the edge had prevented some observers from realizing that Democrats are poised to win the vote regardless.
That’s due to the continued absence of Sen. John McCain, whose last vote was in December and who has remained in Arizona all year as he undergoes cancer treatment. Few expect the senator to return to the Capitol before June 12, when the timeline to vote on the resolution expires.
If McCain’s not there to vote and all other lawmakers hold firm, that should give Democrats the one-vote edge they need.
“We’re still looking for another Republican, but I’d say the odds are in our favor right now,” Sen. Richard Blumenthal said on Monday.
A spokeswoman for McCain did not respond when asked whether the senator could fly out to Washington to prevent a Democratic victory. But observers are skeptical that the ailing lawmaker will make the trip.
“I would be extremely surprised for McCain to return,” said Doug Brake, the director of broadband and spectrum policy at the Information Technology and Innovation Foundation.
Even if the resolution passes in the Senate, it would still have to pass in the House and be signed by President Trump before the FCC’s net-neutrality rules are reinstated.
“That’s a nigh impossible hill to climb,” said Brake, adding that it’d be unusual for McCain to put his health at risk in order to prevent a Democratic victory that’s unlikely to have an impact on policy anyway.
Republican leadership sees the writing on the wall, and they’re not happy.
“If it were to end up that the only Republican that we would lose would be Senator Collins, and Senator McCain not being there, it seems to me that the Democrats are going to have to answer the question about what that vote ultimately means,” Senate Commerce Committee Chairman John Thune told reporters Tuesday.
While Thune refused to say it was inappropriate for Democrats to call a vote as McCain continues to convalesce, he strongly suggested their victory would be tainted by McCain’s absence.
“How that gets interpreted out there—given the fact that we were a vote down that otherwise would’ve been for it, it wouldn’t have passed except for that—then that’s going to be a discussion we’ll have at the time,” Thune said.
But the resolution could still pick up additional GOP defectors before the actual vote, which will likely take place before the end of the month. Progressive tech advocates and Democratic lawmakers have leaned for months on Sen. John Kennedy, who has yet to plant a foot in either camp.
Kennedy said he’s still undecided, and that he may not make a final decision until he’s forced to vote. “As soon as I figure it out, I’ll tell you,” he told National Journal on Monday.
Other possible defectors include Sen. Dean Heller of Nevada, who has remained tight-lipped about the net-neutrality resolution but is facing a tough reelection fight in November. Polls have consistently shown broad support for the FCC’s old net-neutrality rules, including with Republican voters.
Advocacy groups on both sides are stepping up their messaging to vulnerable Republican offices in advance of Wednesday’s petition. “I just never take these things for granted,” said Chris Lewis, the vice president of liberal tech group Public Knowledge, who said his organization and others like it continue to reach out to Senate offices and help citizens contact their lawmakers ahead of the vote.
Ken Cuccinelli, the director of conservative group FreedomWorks’ Regulatory Action Center, promised his organization would direct its 5 million members to email or call lawmakers in danger of flipping. “We are going to target especially Republican senators, but we want to go after all of them, really,” he said during a Tuesday press call.
Some conservatives are now arguing that the Congressional Review Act was never designed to reimpose regulations, and Thune suggested the resolution could face a legal challenge were it to pass. But the Republican lawmaker also said he’s confident that the measure won’t have an impact beyond the Senate.
“CRAs are used to prevent regulations from taking effect, to basically unwind overreaching regulations,” Thune said. “This would be the first time a CRA would be used to reregulate. It’s without precedent, and there’s no way House Republicans are ever going to vote for that.”
Democratic lawmakers dispute the notion that a successful Senate vote would be the high-water mark for their legislative efforts to restore the FCC’s net-neutrality rules.
“The CRA has been counted out before,” said Blumenthal. “If we can get it through here, it will have momentum going into the House—particularly as the individuals and groups interested in it become more mobilized.”