Eshoo, Pallone Press Republicans on Political Disclosure Legislation

Subcommittee ranking member Anna Eshoo, D-Calif., and Commerce Committee ranking member Frank Pallone, D-N.J., are “disappointed” the bill was ignored, they said. Rep. John Yarmuth, D-Ky., introduced the legislation April 30 with all Democratic co-sponsors, including Pallone, Eshoo and Minority Leader Nancy Pelosi, D-Calif. Senate Commerce Committee ranking member Bill Nelson, D-Fla., introduced similar legislation. “Transparency should extend to the political process as well as the FCC’s internal process,” Pallone said. “That is why our alternative package includes a way to ensure that the public knows who is paying for expensive political ads on TV.”

“Recent election cycles and waves of spending by secret donors have made it painfully clear that our electoral system and campaign finance laws are in need of reform,” Eshoo said. “In the short term we can and should start by requiring that all political ad spending be fully transparent and clearly disclosed.”

Walden cited “significant merit” in the three Democratic draft measures considered. “I wish we got three-quarters of our bills up when we were in the minority,” he remarked. The subcommittee also considered the FCC Process Reform Act written by Walden, Eshoo and Rep. Adam Kinzinger, R-Ill.

Considering significant lawmakers “speaking so vehemently about the need for mandated transparency of donors who fund third-party political ads, talking about that initiative at great length -- and in an apparent coordinated way -- during a hearing about the FCC could well be part of an effort to pressure the Commission to enact rules of its own in order to circumvent Congress,” one former FCC official told us. “Similar pressure was exerted on the FCC before the last election cycle.” The ex-official emphasized the 2016 presidential election and wondered whether lawmakers “may be starting to turn up the heat on Chairman [Tom] Wheeler to do something.”

Wheeler, who recently testified, sent a Thursday letter to Walden and Eshoo describing his internal FCC task force, composed of representatives from all five commissioners’ offices. “The goal is for the task force to propose a package of reforms for the Commissioners to review in September,” Wheeler wrote. “The task force has already discussed a path forward, including which agencies to review and what topics to cover in that outreach, and indeed that agency outreach is already underway.” The task force will be taking feedback from internal and external stakeholders and “may propose trials or pilot programs,” Wheeler said. He enumerated several issues the group would consider -- delegated authority use; practices for pre-vote circulation of Commission-level items; practices surrounding editorial privilege; ways to make FCC decision-making efficient; ways to make agency procedures more efficient; and ways to encourage and disclose prompt commissioner voting on items.

The three witnesses were all receptive to FCC overhaul. “The reality is the commission’s own efforts have fallen short of what needs to be done,” Free State Foundation President Randolph May said, agreeing with Walden that Congress should not entirely wait on the FCC’s own internal review.

Subcommittee proposals have “moved in a very useful direction”​ since 2013, Stuart Benjamin, associate dean-research at Duke Law, told lawmakers. His reservations are “pretty modest in the grand scheme of things,” he said, warning of FCC-specific tweaks the lawmakers are proposing and the possibility for such problems as litigation challenges and an endless feedback loop of comment cycles. “I don’t think much is necessary,” Benjamin conceded of legislative tweaks to FCC process, saying little rises to “'we absolutely have to do this.'”

Robert McDowell, former FCC commissioner now with Wiley Rein, specifically noted that changes to the sunshine rules to allow commissioners to talk more easily would be useful. Benjamin said virtually no administrative lawyer would disagree with making those changes. McDowell also urged the subcommittee to embrace a rewrite of outdated telecom laws, as its Republican leaders have intended. Walden sees FCC reauthorization and these proposed changes as “phase 1 of the Comms Act update,” he told McDowell. This approach would be what Walden framed to us as a piecemeal strategy of smaller bills (see 1504290037).

The Democratic measures received minimal discussion. Rep. Yvette Clarke, D-N.Y., offered a draft that would compel the FCC to give quarterly reports to Congress and for posting online about decisions still pending and types of requests made and pending. Rep. David Loebsack, D-Iowa, proposed a measure that would force the FCC chairman to publicize the internal processes of the agency online and notify the public of changes. Rep. Doris Matsui, D-Calif., has circulated a draft bill that would make the FCC coordinate with the Small Business Administration. Matsui submitted for the record a letter dated Friday from the Small Company Coalition, consisting of what it says are rural and tribal carriers, in support of her bill. The coalition “is concerned about the growing regulatory requirements that burden small rural and tribal communications companies,” it told Matsui in the letter.

Walden probed witnesses about FCC “carve-outs” from the Administrative Procedure Act, mentioning the FCC inspector general’s set-up and the agency’s cost-benefit analysis practices. The APA sets minimum requirements “but in many agencies there are different procedural requirements that Congress has adopted,” May said. “I don’t think all agencies have to be the same.” Walden had planned to mark up Democratic and GOP measures this week but didn't include any such markup information in a committee schedule for the week issued late Friday.