Challenges in the courts to the recent reversal of net neutrality rules will be a tortuous proposition fraught with uncertainties. But, net neutrality proponents, fear not. Senate minority leader, Chuck Schumer (D-NY) is throwing you a lifeline. Because public opinion is strongly behind net neutrality, Senate Democrats many be emboldened to actually do something. And given that nearly 75% of Americans support net neutrality, including a slim majority of even Republican voters, such a challenge may enjoy bi-partisan support if it comes up for a vote.
Schumer says that he will force a vote in Congress on the issue, using a legal maneuver called the Congressional Review Act (CRA). The CRA allows lawmakers to overturn agency actions, and has been used numerous times in the past - most recently by Republicans when they were out of power. It would indeed be ironic if an actual Congressional vote does overturn the recent repeal of the rules, because it was then President Obama’s circumvention of Congress and unilateral action back in 2015 that set the stage for the current fiasco in 2017 and the relatively easy reversal of net neutrality rules by Trump’s appointees.
Had the net neutrality rules been codified by lawmakers instead of just by Obama alone, it could not have been rolled back by a simple FCC vote. Before anyone gets too giddy or optimistic, even if Congress were to repeal the rollback, it would end up on President Trump’s desk for signature in order to become law. Despite popular support for net neutrality, it might not be a sure thing that the often ornery occupant of the Oval Office would sign it. But it is, at least, a slim possibility.
Under the terms of the CRA, a vote on a newly-adopted agency rule can be brought through a petition of 30 Senators. Once that petition is submitted, any member may bring it to a vote on the floor, with a simple majority needed to pass. It should be noted, however, that if President Trump refuses to sign the law (vetoes it), the Senate will need a two-thirds majority to overturn the veto. That might be too much to expect.
But it is theoretically possible for the Democrats to get the votes to needed move a CRA repeal of net neutrality repeal through the Senate. Schumer said on Friday:
“It’s in our power to do that and that’s the beauty of the CRA rul. Sometimes we don’t like them, when they (Republicans) used it to repeal some of the pro-environmental regulations, but now we can use the CRA to our benefit, and we intend to.”
Sen. John Markey (D. Mass) is set to get the ball rolling as early as next week.
The Republicans have learned the lesson that anything not promulgated by Congress can be overturned as soon as there is a change in the political makeup of Congress, or even just the White House. Therefore, they are moving swiftly to bring their version of a net neutrality to a vote whilst they prevail in the Legislature and the Oval Office. At present, it is unclear what the bill might contain, but it is thought that there might be language prohibiting ISPs from blocking or throttling Internet traffic. It still might allow for paid prioritization, though, according to sources.
The good news is that net neutrality is not totally dead in the water. It will be interesting to see if the Democrats can pry away a few GOP votes if a CRA vote comes to pass. Stay tuned.