President Obama intends to nominate Mignon L. Clyburn to the Federal Communications Commission. Clyburn is a good pick. She has been a member of the Public Service Commission of South Carolina since 1998. She chaired the South Carolina commission from 2002 to 2004, is a past chair of the Southeastern Association of Regulatory Utility Commissioners and is a respected leader in the National Association of Regulatory Utility Commissioners (NARUC). She is trained in economics and has a reputation for thoughtfulness.
The remaining question is who ought to be the Republican nominee to fill the seat vacated by former chairman Kevin J. Martin (a soon-to-be-vacant seat held by Republican Robert M. McDowell will also need to be filled). By law, two of the commssion’s five members may not be from the President’s political party.
Let’s pretend you’re president. You have to appoint two opponents to the FCC. You don’t need their votes to pass your agenda, because you get to appoint three members from your political party who agree with your views. Do you fill the other two slots with people who hold few clear convictions, who are inclined to compromise and who crave positive feedback? Or do you look for people who are intellectually-engaged and are inclined to debate? If you believe your agenda is radical and you worry it will lead to negative consequences for which you will be blamed, you would want to appoint opponents who can be induced to vote with you. That way, you can claim your agenda had bipartisan support. This is the “cover you ass” approach.
On the other hand, if you believe your agenda is correct and will ultimately be viewed as wise and far-sighted, you don’t care whether your opponents supported it. In fact, if your opponents opposed it, you can use that to bury your opponents. I believe the President would be better served by appointing real Republicans to the FCC rather than token Republicans. Real Republicans will scrutinize and dissect issues before the commission and suggest better approaches. Token Republicans will basically just vote with the majority. Token Republicans will tee up fewer issues for judges to review on appeal, but appellants will fill that void. Real Republicans will encourage the formulation of sounder policies which have a better chance of surviving judicial scrutiny.
During the Clinton administration, pliable Republicans were chosen. Commission decisions were unanimous. Those decisions were appealed and were ultimately overturned after years of litigation. Short term success was purchased at the expense of any permanent legacy.
So which Republicans should the President appoint?
The most qualified candidate obviously is Ajit Pai, currently serving as Deputy General Counsel of the FCC. Pai was Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Senior Counsel at the Office of Legal Policy at the U.S. Department of Justice and Deputy Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts. He graduated with honors from Harvard College and from the University of Chicago Law School, where he was an editor of the University of Chicago Law Review.
Pai would probably be the most outstanding FCC commissioner ever confirmed, based upon prior experience.
Another excellent candidate is Lee Carosi Dunn, currently a counsel to Senator John McCain. Dunn has 15 years experience working on communications issues. McCain is one of the leading advocates of deregulation for the communications industry. He wisely voted against the 1996 Telecommunications Act because it didn’t go far enough in deregulating the industry and spurring competition. He has consistently supported legislation to loosen media ownership rules, provide equality in regulation for cable and satellite companies to allow for greater competition in subscription televisions services, reduce government ownership in satellite companies, and allow for the FCC to forgo merger reviews that are duplicative to the Department of Justice review.
Pai and Dunn blend tremendous experience and free market views.
They are conservatives, to be sure.
But conservatives aren’t a threat to good policy.
Three of the five commissioners will be Democrats. The two Republicans aren’t going to change the outcome on most issues. Their job will be to offer principled arguments and counterproposals, and to write well-reasoned dissents. If they don’t do it, someone else will.
Policies can either be debated and refined in the commission, or in the courts. It can take the courts years to consider the legality and constitutionality of commission decisions. Years of uncertainty can be devastating to private investment.
The objective needs to be for the courts to review good policies, which stand a better chance of being upheld. If the courts review policies which were not well-considered, there is a higher chance those policies will be reversed.
That necessitates a high caliber of FCC commissioners.
If the President wants a new era of bipartisanship and competent government, he has nothing to fear from the appointment of real Republicans to the FCC. He ought to fear rubber-stamp Republicans who may be inclined to approve well-intentioned but imperfect policies which could use a bit of tinkering to make them survive judicial scrutiny.