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The Little-Known Congressional Procedure That Could Save Net Neutrality

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January 8, 2018

Update, May 16, 2018: The Senate on Wednesday approved a Congressional Review Act resolution to reinstate net neutrality. The measure now moves to the House.

Senate Democrats today reached an important milestone in the path to saving net neutrality after the Federal Communications Commission announced last month it would roll back protections from discrimination by internet service providers.

A variety of proposals have been floated at the local and federal level to chip away at the FCC’s giveaway to the big telecommunications companies. But there are really only three ways to fully roll back the rollback. A federal court could rule in favor of the advocacy groups, states, and tech companies who will challenge the FCC action. However, complex legal challenges can take years. The FCC itself could reverse course and undo its decision. But given that the agency just voted along party lines to do away with net neutrality, it’s very unlikely the FCC would do an about-face until the White House changes hands.

Restore Net Neutrality Protections

Only one of the rollback options has a chance of making a difference in the near term. A law called the Congressional Review Act allows Congress to follow special expedited procedures to overturn agency actions with which it disagrees. Congress has 60 legislative days to act once the agency action has been formally posted and presented to the House and Senate. (Given the convoluted way that Congress counts a legislative day, our best guess is that the clock would run out in early to mid-June or so.) While the countdown hasn’t started yet, Democrats announced today that they have succeeded in getting the minimum 30 names necessary to force a vote.

Why 30 votes?

The Senate is a famously slow and deliberative chamber, where oftentimes one senator can block a bill from moving — and even if it moves, the bill needs 60 votes to overcome a filibuster. The Congressional Review Act has special provisions that negate some of these procedural quirks. As with any piece of legislation, a joint CRA “resolution of disapproval,” filed in both chambers, is referred to the committee that has the relevant jurisdiction. With most pieces of legislation, a committee chairperson who doesn’t like a bill simply refuses to let his or her committee act on the measure. But under the Congressional Review Act, 20 calendar days after the measure is given to the committee, the measure moves to the floor once 30 senators have expressed support for it in writing. Since 37 Democratic senators have already signed on to this proposed resolution of disapproval, they’ll now be able to force a vote after the committee receives the resolution.

Can’t Mitch McConnell just refuse to let the resolution come up for a vote?

The Senate majority leader controls the calendar and the agenda, together with the senators from his party. But under the CRA, any senator can bring up the joint CRA resolution for a vote at any time once the 30 senators have removed the matter from committee. Debate in the Senate is limited to 10 hours, after which the vote takes place. Most importantly, the resolution only requires a majority of votes to pass in the Senate — meaning, if the Democrats are united, they only need two Republicans to join them.

What about the House?

In short, there are no special rules in the House to guarantee a vote on the CRA resolution. But under the regular rules of the House, there is a mechanism allowing the discharge of a bill from committee along similar procedural lines as the CRA allows in the Senate. Unfortunately, a discharge petition in the House requires a full majority of the chamber — a much taller task than what the special minority rights provision enables in the Senate.

Does the president need to sign a CRA joint resolution of disapproval?

Yes. If Trump were to veto the resolution, Congress could overturn that action with a two-thirds vote in each chamber, as with any other bill. Given the huge majority of Americans who favor strong net neutrality standards, it isn’t inconceivable that members of Congress would listen to their constituents instead of the arbitrary and unfounded arguments of the FCC and the big internet service providers.

Once the FCC rule is delivered to Congress, the Senate will likely move within a couple of months to vote, and net neutrality supporters in the House will scramble to organize a majority. If members of Congress are paying any attention to their constituents, they should buck President Trump and the FCC on behalf of an internet that is equally accessible to all.

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