President Joe Biden’s failure to nominate a fifth Federal Communications Commission member has forced Democrats to work with a 2-2 deadlock instead of the 3-2 majority the president’s party typically enjoys at the FCC. But things could literally get worse for Democrats starting in January: if Biden doesn’t make his choice quickly enough to get Senate confirmation by the end of this year, Republicans could get a 2-1 FCC majority despite Democrats controlling both the White House and Senate.
That possibility can be easily averted if Biden and the Senate spring into action, but it’s closer to becoming reality than anyone expected when Biden became president. The reason is that acting FCC Chairwoman Jessica Rosenworcel’s term expired in mid-2020. US law allow commissioners on lapsed terms to stay until “the expiration of the session of Congress that begins after the expiration of the fixed term,” which means she can stay until the beginning of January 2022.
To ensure a 3-2 Democratic majority in January, Biden has to nominate a third Democrat, renominate Rosenworcel or nominate a replacement for Rosenworcel, and hope that the Senate confirms both nominations in time. As president, Biden can promote any commissioner to chair, but the Senate decides whether to confirm each newly nominated commissioner. That process usually takes a few months or longer. Tom Wheeler was confirmed as FCC chairman in October 2013, six months after his nomination.
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