Phil Kerpen: Democrats exploit McCain absence for stunt vote

May 7, 2018 GMT

Rather than waiting until summer as originally expected, Democrats now say that on May 9 they will file a discharge petition to force a Senate vote on Massachusetts Senator Ed Markey’s Congressional Review Act (CRA) resolution that would re-impose Obama-era public utility regulations on the Internet.

The rush is for one reason only: to exploit the medical absence of Arizona Senator John McCain.

With expected lockstep support among Democrats, the measure should require support from two Republicans to command a majority. But there is only one Republican, Maine’s Susan Collins, expected to line up with Democrats - so Democrats are hoping to pass the CRA 50-49 before Senator McCain is healthy enough to return to Washington.


In a letter to constituents, McCain made it clear he opposes the Markey CRA, and for good reason.

“Over the last two decades, the Internet has flourished under limited government oversight,” McCain wrote. “I continue to believe in a hands-off approach to the internet, and support the decision to roll back that action.

Allowing the internet to thrive without burdensome regulations is the best stimulus for our economy.

He is exactly right.

These regulations — widely misreported as protecting net neutrality, despite the fact the D.C. Circuit Court of Appeals found the rules expressly allow blocking and filtering of web traffic — were designed by a highly politicized “shadow FCC” inside the Obama White House and forced through the FCC over the objections of the agency’s own experts.

The FCC chief economist at the time, Tim Brennan, called them “an economics-free zone.”

The Obama regulations imposed a 1930s public utility regulatory model on the Internet Service Providers that subjects every new product, service, and business arrangement to regulation and potential prohibition by the FCC Enforcement Bureau subject to an undefined so-called Internet Conduct Standard - while completely exempting the edge providers, Google and Facebook.

The principal effect of the Obama regulations therefore, beyond depressing investment, was to insulate the biggest Internet companies — which are also massive Democratic campaign contributors — from potential competition from ISPs in their core advertising business.

Despite apocalyptic predictions about the end of the Internet if we went back to the regulatory approach that existed from 1996 to 2015, it’s hard to identify any ill effects since the Obama rules came off the books.


If a new law is needed, it should be done the right way. As McCain concludes in his constituent letter:

“With this in mind, it is important to recognize the need for an open Internet.

In order to enjoy the freedoms an open internet affords us, I believe Congress must introduce a bipartisan legislative solution. I am encouraged by past attempts by the Senate Commerce Committee to draft legislation that ensures consumer protections while also encouraging an innovative Internet. Legislation that supports a free and open Internet is a matter for Congress to carefully consider.”

But that careful consideration cannot even begin if the Democrats succeed in exploiting McCain’s medical absence to muscle their CRA through the Senate —because Silicon Valley tech giants and liberal interest groups will pour a fortune into efforts to score political points by pressing House Republicans on the CRA, even though it is unlikely to even be voted on in the House.And Democrats will refuse to even negotiate on a real bill while that political play goes on.

There are 50 senators who support the Markey CRA, but are all 50 of them willing to exploit John McCain’s medical absence by going along with the rushed timing of the vote?

Delaware Senator Chris Coons was widely praised when, as a courtesy to an absent senator, he abstained on Mike Pompeo’s confirmation vote in committee.If one Democratic senator or Susan Collins has the decency to abstain for McCain, the CRA spectacle can end and Congress can finally get to work on resolving the net neutrality issue.

Mr. Kerpen is the president of American Commitment and the author of “Democracy Denied.” Kerpen can be reached at phil@americancommitment.org.