By Daniel Lyons

After 10 months of silence, the Biden administration nominated long-time progressive telecom champion Gigi Sohn to fill the
open seat on the Federal Communications Commission (FCC). Like that of Lina
Khan to the Federal Trade Commission, the nomination has generated controversy.
A prominent Wall Street Journal editorial criticized the choice, while Sen. Lindsey Graham
(R-SC) — who has a track record of supporting Democratic picks even in the
face of profound policy disagreements — vowed to “do everything in [his] power” to defeat Sohn’s
nomination.

Agency nomination battles such as this are increasingly grabbing headlines. In a sense, this heat and light is unsurprising.
Sohn’s confirmation would create a three-member Democratic majority at the FCC,
which would allow the commission to accomplish a wish list of progressive policy initiatives —
a task that sounds suspiciously like legislating. One way to decrease the importance of these
nomination fights is to reduce the power of agencies by shifting the locus of
legislative decision-making back where it belongs — in Congress.

What’s at stake

Sohn’s supporters and opponents alike have highlighted the stakes of filling the open FCC seat. Andrew Schwartzman of the Benton Institute explains that “Chair Jessica Rosenworcel and commissioners Geoffrey Starks and Gigi Sohn will create an FCC ‘dream team’ that can implement a progressive telecommunications policy agenda for the coming decades.” Most significantly, this includes determining how the nation’s broadband networks should be regulated. A Democratic majority is likely to repeal the 2017 Restoring Internet Freedom order and reimpose net neutrality rules on broadband providers. This would continue a decades-long ping pong match within the FCC that stems from the fact that Congress has not meaningfully spoken on this issue since 1996, when broadband was in its infancy — creating a power vacuum that multiple FCC commissioners have filled in wildly disparate ways.

Legislation, not
administration

It’s not supposed to be this way. Article I, Section 1 of
the Constitution — the document’s very first substantive provision — establishes that “all legislative Powers herein granted
shall be vested in a Congress of the United States.” The people, through their
respective elected officials, deliberate together to decide when and how law
should limit individual liberty to promote the common good. This is an awesome
power. In Federalist 51, James Madison recognized that the legislature “necessarily predominates”
over the other branches and explained that for this reason, the Constitution
puts additional safeguards on the legislative process, such as requiring bills
to pass the Senate and the House of Representatives and survive the veto
process before they can be enacted into laws that legally alter the people’s
rights and responsibilities.

Today, most policy decisions are made not on Capitol Hill
but in agency bureaucracies that sidestep the carefully controlled checks and
balances the founders placed on legislative power. When President Barack Obama
famously responded to congressional intransigence by announcing he would govern by pen and phone, he was nodding
to a decades-long transfer of decision-making power from the legislative branch
to the administrative state — a transfer that arguably makes such intransigence
more likely by reducing the need for bipartisan compromise.

Benefits of
legislation

There are significant benefits to congressional
decision-making. At a basic level, it increases political accountability by
placing key decisions in the hands of members directly elected by the public.
But more significantly, congressional action can increase legitimacy. The
legislative process makes more room for bipartisan compromise, creating a
broader consensus in favor of more gradual legal change that has buy-in from a
broader swath of the political spectrum.

This is the story of the 1996
Telecommunications Act, Congress’s last significant foray into the telecom
space. It was the result of a multiyear conversation among stakeholders across
the political spectrum that helped set the stage for increased competition, and
it passed by a vote of 414–16. This is also how most experts agree the net
neutrality debate should be resolved — and how it very nearly was resolved in late 2014 when Republicans
offered to join Democrats on a compromise bill that would have established
binding net neutrality requirements in exchange for clarifying that broadband
networks are not Title II common carriers. But Democrats balked, preferring to
use the FCC to adopt a more aggressive net neutrality regime that was repealed
a few years later when Republicans came into power.

Restoring Congress to its proper role would help reduce the
political temperature in Washington. Clear legislation would give agencies
better guidance, which would minimize the wild policy swings from
administration to administration and reduce the stakes of each nomination — and
each presidential election. Congress’ abdication of power to the administrative
state is a significant driver of our hyper-politicized environment. A
rejuvenated legislative process would make law more stable and predictable,
making space for more evolutionary, rather than revolutionary, policy change.

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