When it comes to the Senate and the Federal Communications Commission, the past is never truly dead.
Currently, it is haunting the confirmation process for at least one FCC nominee.
The Senate Commerce Committee voted Aug. 2 to advance the nominations of Republican FCC Chairman Ajit Pai, Democrat Jessica Rosenworcel and Republican Brendan Carr. While the nominations of the first two were passed with simple voice votes, with a handful of Democrats voting "no" for Pai, Carr's nomination is more complicated.
That is because President Donald Trump nominated Carr, currently the general counsel for the FCC, to two consecutive terms at the agency. Carr's first term would expire June 30, 2018, representing the remainder of the term of former FCC Chairman Tom Wheeler; Carr's second term would begin July 1, 2018, and stretch for five years.
While the committee unanimously advanced Carr's nomination for one term, Ranking Member Sen. Bill Nelson, D-Fla., asked for a recorded vote for Carr's second term. The nomination narrowly passed, with 14 "yes" votes to 13 "no" votes.
But though Carr's nomination for both terms passed the Senate Commerce Committee, Nelson indicated Carr may only get one term when it comes time for the nominations to be confirmed by the full Senate.
"It's my understanding that this is what is being agreed to anyway between the leaders for a package to come to the floor," Nelson said, referring to a larger nominations package that is expected to be brought before the chamber before Senators leave for their August recess. Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., are still "hammering out" the final details of the package, according to Nelson.
Prior to the committee's vote on Carr's nomination, Sen. Ed Markey, D-Mass., explained Democrats do not want to confirm Carr for two terms when the term of current FCC Commissioner Mignon Clyburn, a Democrat, has already expired.
"We are awaiting her decision as to whether or not she wants to be renominated or whether or not there will be a vacancy," Markey said. Although Clyburn's term officially expired June 30, she is currently in a grace period known as a "holdover" that ends either when a replacement is confirmed, or at the end of the congressional session the following year. Clyburn's holdover period, then, could stretch until the end of 2018.
With Carr's first term also set to expire in 2018, Markey said, "That would then in proper time create the proper pairing of a Democrat and a Republican who would be brought before us simultaneously, which is the tradition of the committee."
Nelson agreed, noting that if Carr is confirmed to two terms and Clyburn vacates her current seat, there is nothing to guarantee an eventual Democratic nominee will be brought forward for confirmation. This would result in a commission comprised of three Republicans and one Democrat.
"That's not cricket," Nelson said, noting the five-person commission is supposed to be 3-2 in terms of its partisan split.
It is typical for the party controlling the White House to also control the FCC, but that majority is limited by law to "the least number of commissioners which constitutes a majority of the full membership of the Commission."
A major reason for Democrats' concern has to do with Rosenworcel. Former Senate Minority Leader Harry Reid, D-Nev., said he struck a deal back in December 2014, under which Democrats would immediately confirm Republican FCC Commissioner Michael O'Rielly, with the understanding that Republicans would later vote to reconfirm Rosenworcel before her first term ended in 2015.
"That was the agreement. That's how we would pair one Republican with one Democrat, as is our custom," Reid said in an April 2016 speech.
But a full Senate vote on Rosenworcel never came and she was forced to step down from the commission in January 2017. Her current nomination would return her to the commission seat she previously held.
Senate Commerce Committee Chairman John Thune, R-S.D., said during the Aug. 2 meeting that while he understood the historical significance of pairing one Democrat nominee with one Republican, he believes there will be future opportunities to pair Clyburn's replacement with a Republican nominee from another independent commission or agency.
"There are a number of agencies that have vacancies that we're going to need to fill, and those vacancies are on both sides of the aisle," Thune said.