Trump to give Republicans a 3-1 FCC majority, isn't filling empty Democratic seat

Trump has resisted urge to fire FCC Democrat despite recent Supreme Court win.

The Federal Communications Commission has been shorthanded throughout President Trump’s second term, but it’s about to get a new commissioner. Unsurprisingly, Trump is breaking a historical norm with a nomination that would give Republicans a 3-1 advantage on the FCC.

Historically, the president and Senate worked together to ensure that the president’s party maintained only a one-vote majority. Normally, the president’s party has three FCC members while the minority party has two.

Instead of the typical 3-2 split, the FCC has operated with a 2-1 Republican majority during Trump’s second term. On Friday, Trump nominated Republican Danielle Thumann Severs to take one of the empty spots. Thumann Severs, a lawyer, has been working as FCC Chairman Brendan Carr’s senior counsel. She must be confirmed by the Republican-controlled Senate before being sworn in as a commissioner.

The FCC has played a leading role in Trump’s attacks on news broadcasters, with Carr using his position to investigate and threaten the licenses of broadcasters that don’t provide coverage favorable to Trump. A third Republican to cast votes at commission meetings will give Carr more support for his policies.

Every FCC commissioner must be confirmed by the Senate after receiving a nomination from the president. Even commissioners in the minority party need a presidential nomination.

If Trump followed the historical norm, he would have nominated one Republican and one Democrat to the FCC so they could be confirmed by the Senate simultaneously. Presidents typically nominate commissioners from the opposing party based on recommendations from the other party. That’s what Trump did in his first term when he nominated Democrat Geoffrey Starks based on a recommendation from Senate Minority Leader Chuck Schumer.

Since the FCC needs only three members for a quorum, adding a third Republican raises the possibility that Trump will fire the FCC’s only Democrat and give his party a 3-0 advantage. But stocking the commission with only Republicans would violate a law that prohibits any party from having an FCC supermajority, which could put the FCC’s decisions at greater risk of being blocked in court.

Senate Democrat: “That will be a problem”

While the Senate’s Republican majority can confirm Thumann Severs without any Democratic support, doing so without a paired Democratic nomination will result in a contentious confirmation process. Senate Democrats want Thumann Severs to be paired with a Democratic nominee so the commission can have a full slate of five members. But it doesn’t appear that Trump will nominate a Democrat for the fifth spot.

“That will be a problem. We want pairing,” Sen. Maria Cantwell (D-Wash.) told Politico on Friday.

Cantwell is the top Democrat on the Senate Commerce Committee, which will consider the nomination before it goes to a full Senate vote. The committee is chaired by Sen. Ted Cruz (R-Texas.), who told Politico that “we will assess the nomination on its merits.”

Sen. Ben Ray Luján (D-N.M.), the top Democrat on the telecommunications and media subcommittee, was quoted as saying that “if President Trump wants to fill these positions, he should do them in a bipartisan way. I would certainly hope my Republican colleagues on the committee want to see some semblance of balance as well. Because who’s going to be the next president?”

Shortly after his second term began, Trump declared sweeping power over historically independent agencies and fired both Democrats from the Federal Trade Commission. The Supreme Court upheld the FTC firing in a decision that solidified Trump’s power over an agency that historically was not under the direct control of the president. The FTC currently has just two commissioners, both Republicans, and three vacant seats.

Trump has resisted firing FCC’s only Democrat

The Supreme Court ruling on the FTC raised speculation that Trump would fire the FCC’s one Democrat, Anna Gomez, and have the FCC be run by Republicans only. But Gomez has still not been fired despite being a consistent critic of the Trump FCC’s attacks on news broadcasters and gutting of broadband consumer rules.

Gomez issued a statement congratulating Thumann Severs on Friday and said, “I look forward to continuing our work together, hopefully soon with a full commission of five, the way this agency was built to operate.” Carr issued a statement congratulating Thumann Severs but did not express any wish for a five-member commission.

New Street Research analyst Blair Levin, who was the FCC’s chief of staff from 1993 to 1997, did not expect Trump to fire Gomez and leave the agency with only two commissioners because that would have prevented the FCC from having a three-member quorum. Now that Trump has proposed filling one of the FCC’s empty seats, Levin told Ars on Monday that he does not think Trump will appoint a Democrat to fill the other empty seat.

Levin said Trump could nominate another commissioner who is not a Democrat yet “qualifies as a non-Republican,” though Levin does not think this is a likely scenario. Nominating a fifth commissioner who is neither a Republican or Democrat, but who supports the Carr and Trump agenda, could effectively give Trump a 4-1 majority without technically violating the law prohibiting an FCC supermajority.

Another wrinkle is that Gomez’s term technically expired on June 30. US law allows her to serve until the end of 2027 or until the Senate confirms a replacement, whichever comes first. Gomez would need a renomination from Trump and confirmation from the Senate to continue past 2027, or she could be replaced earlier.

Hypothetically, Trump could aim for a 3-0 advantage or replace Gomez with someone “who qualifies as a non-Republican” and give Republicans a 3-1 FCC majority in which the minority member is from a third party or is an independent. Levin said he thinks Senate Republicans would let Trump make that kind of appointment even though they would “object to a Democratic president doing the same” in a future administration. But he doesn’t think Trump will do this.

“My guess is that the White House believes three Republicans constitute a quorum and therefore there is no need to use the political capital that would be necessary to appoint a non-Republican,” Levin said.

US law forbids FCC supermajority

The Communications Act requires the FCC to have three members for a quorum. The US telecom law also forbids supermajorities on the FCC by specifying that “the maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.”

If Trump decides to follow this law, Republicans would not be able to hold all three seats on a three-member FCC. On a four-member commission, three Republicans would be the “least number of commissioners which constitutes a majority.”

By adding a Republican and resisting the urge to fire Gomez, Trump can seat three Republican commissioners while complying with the law that prevents Republicans from taking a 4-1 or 5-0 advantage. The fact that Trump hasn’t fired Gomez yet might indicate he is willing to let the FCC operate with a 3-1 Republican majority for the rest of his presidency. This would ensure the FCC has the maximum number of Republican commissioners and the minimum of one Democrat.

Levin wrote in June that the Supreme Court’s FTC ruling doesn’t necessarily give Trump the same power to make the FCC a Republican-only agency.

“The law itself indicates that Congress intended the agency to always have members from both parties. That was not an accident,” Levin wrote. “When Congress created the FCC, it did not simply establish an independent agency. It explicitly designed a multi-member, multi-party commission, writing into the Communications Act that no single political party can hold more than a bare majority of seats. It explicitly limits the number of commissioners of the president’s party, relative to the number of minority commissioners, thereby implicitly requiring members of the other party.”

The US law that created the Federal Trade Commission says that no more than three FTC commissioners can be members of the same political party. But the FTC doesn’t have the same legal restriction that effectively requires the FCC to have at least one Democrat and at least one Republican.

Firing Gomez could put Trump FCC agenda at risk

From a practical perspective, leaving Gomez on the commission won’t prevent the Carr FCC from implementing Trump’s agenda. Carr has a Republican majority for decisions that require commission votes and can accomplish much of the agenda by issuing orders through the FCC’s staff-run bureaus. Firing Gomez, on the other hand, could put the Trump FCC’s agenda at risk by giving opponents of specific decisions grounds to argue in court that the commission acted illegally.

A “question for a future court will be whether a one-party FCC can ever issue rulings with the force of law,” Levin wrote. “If the President were to act to create a commission without any Democratic representation, that question would likely be litigated.”

Levin wrote that having a minority party “improves the quality of the policy deliberations” at the FCC. While it hasn’t prevented Carr from testing the limits of the FCC’s legal authority, “the majority understands that a minority dissenting opinion can often serve as a template for a court to overturn the majority decision,” Levin wrote. “Thus, the majority is forced to address problems in their own preferred policies or increase the risk of a court overturning their policy.”

Despite Trump not firing Gomez, refusing to nominate a second Democrat would be a significant departure from the bipartisan practice of filling all empty seats. “Traditionally, the Senate leadership of the non-presidential party has had the right to approve or veto any presidential nominee that is not from the president’s party,” Levin wrote. “While not embedded in the law, changing that tradition could cause ripples among Republican senators looking down the road to when a Democrat occupies the White House.”