Lujan: Trump Firings May Scare Off Democratic Contenders to Replace Starks

Senate Communications Subcommittee ranking member Ben Ray Lujan, D-N.M., told us earlier this month that Trump “seems committed to destroying the independence of every federal agency [that Congress] created to be independent,” including the FCC. Statements that acting U.S. Solicitor General Sarah Harris made during the Supreme Court’s March 26 oral arguments (see 2503260061) in its review of the Consumers’ Research USF case, saying FCC commissioners don't have statutory for-cause removal protections, show that Trump believes he “can fire anyone,” Lujan said.

“I think that's detrimental to [FCC], and I'm certain [that will be] on the mind of those that are well positioned and qualified” to succeed Starks, Lujan said. Those contenders will likely “think twice about becoming part of an independent body subject to what [Trump] is engaged in.” Lujan was among congressional Democrats who wanted Starks to stay on at the FCC when rumors first circulated in December that he was eyeing an exit (see 2412040046). Starks has not given a specific departure date, saying only that it will happen this spring (see 2503180067).

Senate Commerce ranking member Maria Cantwell, D-Wash., told us she's still gauging how Trump’s ouster of the FTC Democrats and the potential for similar action against Gomez could “affect people who want to be nominated” to succeed Starks. She said that matter is part of Democrats’ broader misgivings about how Trump administration actions will affect the FCC and other independent agencies, something she hopes Congress and federal courts will “put a stop to” soon.

Senate Commerce said Wednesday night that the panel will vote April 30 on Republican FCC nominee Olivia Trusty, meaning Cantwell and other Democrats will have to decide whether they will threaten to withhold support for her in a bid to pair a Democratic nominee to replace Starks. Cantwell told us she and other Democrats had not yet decided before the Senate went into a two-week recess earlier this month whether they will push for such a pairing. Lobbyists said it’s highly unlikely Senate Commerce Republicans will agree to delay action on Trusty, given Cantwell and other Democrats’ positive reception for the nominee during her April 9 confirmation hearing (see 2504090060) and the nebulous timeline for a Democratic Starks successor.

There's still no clear Democratic front-runner to replace Starks amid continued speculation that Trump may choose not to nominate anyone. Several lobbyists pointed to SpaceX's David Goldman as the Democratic contender most likely to catch Trump’s eye if the president does decide to pick a nominee because of Goldman’s connection to company CEO Elon Musk. Lobbyists believe Senate Minority Leader Chuck Schumer, D-N.Y., will prefer Didier Barjon, his tech and telecom legislative aide.

Humphrey's Debate

Former Republican FCC Commissioner Harold Furchtgott-Roth said during the Broadband Breakfast event that he has “never understood” how the rules creating the FCC are “constitutional.” There's “this political spoil system -- each party gets at least two commissioners,” said Furchtgott-Roth, now director of the Hudson Institute’s Center for the Economics of the Internet. “I’ve always been troubled by that.”

George Washington University professor emeritus Howard Beales questioned whether a prohibition in Humphrey’s Executor against firing independent commissioners will survive SCOTUS review. The FTC today “looks a lot more like most of the executive branch,” he said. Since the Clinton administration, the president has worked with the leaders of the other party to select nominees for slots on independent commissions. It’s unlikely Senate Democrats will pick anyone “that Donald Trump will like very much,” Beales said. “Changing that custom is likely to make it very difficult to appoint anybody in the current polarized environment.”

Congress, not the president, should decide whether a commission like the FCC or the FTC is independent, said New York University adjunct law professor Peter Shane. But he agreed that Humphrey’s Executor is at risk because “a majority of the court believes in what I regard as this myth of the presidency.” Shane noted that SCOTUS under Chief Justice John Roberts has become “enamored” with the unitary executive theory, which invests in the president all executive power and views the president as a “one-person branch of government.” That “is wrong historically.”

TechFreedom Internet Policy Counsel Corbin Barthold said the Supreme Court’s conservative wing “has a specific historical understanding of the executive” that will likely lead the high court to overturn Humphrey’s Executor. But he cautioned that a win for Trump isn’t guaranteed in light of SCOTUS’ decision over the weekend, temporarily blocking the deportations of Venezuelans held in northern Texas under the Alien Enemies Act.

Some justices “may be waking up to the fact that the sort of Federalist Society project of constitutional restoration may need at this moment to give way to something more like an emergency project of constitutional preservation,” Barthold said. “We may have a very different debate at the court … than we might have expected not that long ago.”