FCC Nominee Simington's Senate Timing 'Up in the Air' Amid SCOTUS Fight

“We hope to expedite” Senate Commerce Committee consideration of Simington wherever possible, said committee Chairman Roger Wicker, R-Miss. “We do have more time in Washington now than initially thought because of” strong GOP interest in quickly filling the top court vacancy. Wicker and committee staff held their first meetings with Simington last week, after we spoke to Wicker (see 2009250072). Wicker’s meeting with Simington appears to have been “very detailed,” one Hill aide said.

“It’s still up in the air” whether the Senate can confirm Simington before the election, said Communications Subcommittee Chairman John Thune, R-S.D. “We’d assumed” before Ginsburg’s death “we wouldn’t be” in session for more than a few days in October, but the situation is more fluid given the pending Supreme Court fight. Thune faced some criticism from conservative media outlets Breitbart and Newsmax over his past comments to us questioning whether preelection confirmation of Simington was feasible (see 2009160064).

“I still assume we won’t be here for much of” October unless there’s “something happening” with either the Barrett nomination or consideration of another round of COVID-19 aid legislation, Thune said. Simington’s chances of advancing could become better “if we are in town and have more days to process” his nomination, hold a hearing and advance him out of Senate Commerce.

Commerce hasn’t set a hearing on Simington, and there has been no chatter about one being in the works, several communications sector lobbyists said. Commerce is “not going to drag” its feet in considering Simington, but it’s clear the nominee has “some work to do” to court lawmakers and convince them he’s a qualified and acceptable successor to O’Rielly, a Senate official told us. Wicker urged other committee Republicans to meet with Simington before a hearing, Hill aides said. Thune and other top Republicans earlier pressed Trump to reinstate O'Rielly's renomination (see 2008060062).

Meetings Sought

Some other Commerce Republicans we spoke with indicated they need to know much more about Simington and his communications policy views before a committee vote takes place. Sen. Mike Lee of Utah plans to meet with Simington Tuesday, an aide told us.

“I do not know him, I have not worked with him, and he has not yet called for a visit,” said Sen. Marsha Blackburn of Tennessee last week. “I think we’re a way off from getting to that nomination.” Blackburn's office didn't say whether a meeting has been scheduled.

“I want to have a long discussion” with Simington about all the “unique” telecom policy issues affecting Alaska, said Sen. Dan Sullivan of that state. “Then I will decide, once I get commitments from him.” The FCC “doesn’t always understand my state and doesn’t always understand federal law,” he said. “I want to make sure [Simington] does.” Sullivan temporarily blocked Senate confirmation of Commissioner Brendan Carr in 2018 over concerns about how the FCC approach to the USF Rural Health Care Program affects Alaska (see 1809120056). The issue came up again during O’Rielly’s June reconfirmation hearing (see 2006160062).

Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., also plans to “talk to” Simington about his concerns over the FCC’s approval of Ligado’s L-band plan. Inhofe placed a hold on O’Rielly’s reconfirmation in July contingent on the commissioner committing to vote to overturn the decision (see 2007280039). “There’s no rush” to hold that meeting, but it’s needed because Simington’s views on the Ligado issue are unknown, Inhofe said. He noted Simington’s nomination hasn’t come up in recent conversations with Trump, but the president “and I have been very close” on the Ligado issue.

Senate Commerce Democrats believe the committee shouldn’t try to push Simington through the confirmation process for the sake of getting him on the FCC before the election. They view the nominee as largely unknown, apart from reports he helped draft Trump’s May executive order that directed NTIA to petition the FCC to create regulations defining the scope of Communications Decency Act Section 230 (see 2005280060). “There’s not enough time to vet anybody properly right now” with so few legislative days before the election, said committee ranking member Maria Cantwell of Washington. “I don’t know anything about” Simington to make a judgment about him at this point.

Simington “hasn’t reached out” and “I still don’t know enough about him” to form an opinion, said Communications ranking member Brian Schatz, D-Hawaii.

'Fraught' Process

It’s unlikely Simington will go through a “typical confirmation process” if Senate Republicans want to try to clear him before the election, especially given the looming top court fight, said Free Press Vice President-Policy Matt Wood. “There’s been more drama” over FCC nominations in recent years “than people are used to,” including a largely party-line 2017 vote to reconfirm Chairman Ajit Pai (see 1709280056). That makes it hard to predict whether opposition to Simington will be noticeably more vocal, Wood said.

A hearing or vote on Simington “could be more fraught” because the Section 230 debate “will be front and center,” since O’Rielly’s reluctance to publicly back the Trump-sought NTIA petition is considered the main reason for the yank-back (see 2008040061), Wood said. Perceptions that Simington is a “blank slate” on most telecom issues make it “hard to know what else to think” of him beyond being concerned because of the Trump administration’s “pure power play” in moving to oust O’Rielly. FP “almost never agreed with” O’Rielly, “but at least he believed in something,” Wood said.

It’s Trump’s “prerogative” to choose whom he wants for O’Rielly’s FCC seat, and “he wants someone who’s strong on Big Tech issues” in that role, said Internet Accountability Project Senior Adviser Rachel Bovard. “It seems Simington is,” given his recent experience at NTIA, where he worked on a mix of telecom and tech issues. “He’s as qualified as anyone” to be an FCC commissioner, despite not having the same policy and law experience as O’Rielly and others, Bovard said. “I think in D.C., we tend to have a specific mold” of experience “we like for” federal regulators, but “if the president thinks he’s qualified, that should make him qualified.”

It’s “notable that Wicker and Thune appear to be hedging” and “waiting to see if Trump wins” reelection before they decide whether to advance Simington through the process, Bovard said. “I think it’s their intention to put O’Rielly back in that seat” if Trump loses to Democratic presidential nominee Joe Biden. The argument there’s not enough time to go through the traditional confirmation process before the election “is an excuse I’ve heard so many times” from lawmakers, said Bovard, who was previously policy director for the conservative Senate Steering Committee and has worked elsewhere on Capitol Hill. “It’s the excuse that members give when they don’t want to work at something.”

GOP leaders have “a choice to press on this issue, which I think they should because the FCC majority is at stake here,” Bovard said. “The Supreme Court nomination obviously changes the calculus a little bit because it sucks all the oxygen out of the room,” but it also shows the leadership “can change the calendar to accommodate important nominees. They should act with urgency to get this nominee across the finish line,” despite the likelihood of Democratic opposition. “I don’t think the Democrats are going to give in on this easily,” she said. “They’re not going to allow” Simington to advance via unanimous consent, but “Senate Republicans have the tools to deal with that” by using floor time to confirm him.