Joe Biden's struggle to get FCC nominee Gigi Sohn confirmed by the Senate offers an early warning sign of the legislative battles ahead. Overcoming Republican opposition may be a moot point if the president can't hold his party's narrow Senate majority together against an onrushing tide of dark money.
Dark money spending — untraceable political donations funneled through super PACs that aren't required to report who their donors are — topped $1 billion in the 2020 election cycle. Perhaps surprisingly, that funding largely benefited Democrats, and that sum exploded to the unprecedented $8.9 billion midterm spending spree of 2022. Republican and conservative media organs have already begun using Democrats' extraordinary reliance on dark money as a PR cudgel.
In fact, the Democratic National Committee is also using dark money to launch primary campaigns against its own progressives. That intra-party fracture is beginning to reflect themes seen in the GOP's own widening split. Ultra-conservative super PACs played a key role in the January election of House Speaker Kevin McCarthy and have dragged the party's "moderates" so far right that even Senate Minority Leader Mitch McConnell now finds himself on the defensive.
Dark money is moving through the campaign chests of "ghost" candidates, drumming up support for gambling-related bills, sowing misinformation about voter fraud, pushing the privatization public education, pushing back on emergency COVID orders, and undermining abortion pill access. Now it's trying to hamstring the FCC, which has been without a full five-member commission for 15 months as both Democrats and Republicans have stalled Sohn's confirmation.
Sohn has pointed to ISP and telecom dark money as the cause of a delay that now threatens to divide Biden from members of his own party, aiming to peel off key Democratic votes and sink her nomination. Until that vacant fifth seat is filled, the FCC is largely incapable of from moving on Biden's tech agenda and "digital divide" proposals.
With Democrats holding 51 votes in the Senate (at most) and Republicans unanimous in opposition, Sohn has no margin for error. Unity will be tough to come by. Although Sohn earned a previous vote of support from Arizona's Sen. Kyrsten Sinema, the Democrat-turned-independent whose campaign coffers have swelled with telecom funds, she reportedly faces skepticism from three other middle-road Democrats: Catherine Cortez Masto of Nevada, Mark Kelly of Arizona and Joe Manchin of West Virginia. The unanswered question is whether such so-called moderates are willing to let the FCC remain paralyzed rather than vote against telecom interests.
Craig Holman, Public Citizen's Capitol Hill lobbyist on ethics and campaign finance, argued in an email to Salon that the telecom industry offers a prime example of how dark money transcends pure partisanship.
"While some dark money groups spend most of their money supporting candidates of a single party — One Nation supporting only Republicans and Majority Forward supporting only Democrats, for example — many dark money groups could care less about party affiliation and support anyone who promotes their specific causes," Holman said.
"This is particularly the case for industry-related dark money groups, such as in the telecom industry.
Telecom lobbying money surged during the 2022 cycle, with more than $117 million spent on candidates. That's only the reported sum, Holman notes: The true number is likely much higher.
All this Big Telecom dark money, he adds, has endangered Sohn's nomination, "despite the fact that she espouses traditionally Democratic values and thus should otherwise easily be confirmed by the Democratic majority in the Senate."
Comcast, one of the telecom lobby's biggest spenders, led industry campaign donors with $14.29 million during the 2022 election cycle. A leading voice against net neutrality, Comcast has also reportedly fought Sohn's nomination by way of the One Country Project lobbying group, which is led by moderate Democrats.
"Corporate-backed nonprofit groups are an easy and effective vehicle for special interests to push a particular policy or decision without necessarily having their name attached to the campaign," said Robert Maguire, research director at Citizens for Responsibility and Ethics in Washington.
"These groups are often made to look like legitimate grassroots organizations when in reality they're consultant- or lobbyist-run astroturf groups, crafted specifically to fit the policy goals of their corporate funders, whose identities are often difficult or even impossible to suss out."
Members of the Senate Commerce Committee, where Gigi Sohn awaits a vote, received more than $8 million from internet and telecom industry groups. Will they bite the hand that feeds them?
According to public records gathered by Open Secrets, 254 businesses and organizations sent lobbyists to the FCC in 2022, for a total body count of 781 actual human lobbyists. Forty-two percent of those actual humans were former government regulators, former members of Congress members or former congressional staffers. Leading the pack were the usual industry players: T-Mobile, Charter Communications, Verizon, Comcast and the NCTA, a leading cable and broadband trade group.
Of those five entities, Comcast gave the most to individual candidates in the last election cycle, distributing $3.3 million in campaign contributions, with Democrats getting a bit more than half, or $1.9 million. Among industry peers, Comcast also threw the most money at lobbying Congress and the FCC, topping out at $14.4 million.
Members of the 2022 Senate Commerce Committee, where Sohn now awaits a vote, received $4.5 million in campaign contributions from internet industry groups. Those members, both Democrat and Republican, received $3.8 million from telecom services industry groups. Some of those members still sit on that committee and will decide whether Sohn's nomination actually makes it to the Senate floor.
Notably, the aforementioned Kyrsten Sinema also sits on the committee. She took in nearly $450,000 in campaign donations from broadband-related industry players from 2017 through 2022, and was the only member of the Senate Democratic caucus not to co-sponsor legislation to restore net neutrality. Sinema was also reportedly linked to Comcast-directed dark money groups in 2019. As a supporter of LGBTQ rights, however, Sinema is likely to support Sohn (who is a lesbian) in the final vote.
But dark money's best strategy isn't always aimed at determining outcomes so much as delaying them endlessly, by preventing basic governmental bodies from functioning as intended. Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation — a digital rights advocacy group where Sohn is a board member — has pointed this out repeatedly.
"These dark money efforts are designed around shaping outcomes in government without revealing to the public who is behind it," he told Salon. "It's never really for a good reason regardless of ideological bent."
Falcon tweeted last year: "I've had very seasoned Democrats mistakenly conclude that the attacks on Biden's noms would be different if it were different people nominated. They completely miss the point of the attacks. It is not the people, it's functional government under attack,"
"Why attack functional government? Because billions of $ are made from the current dysfunction. Broadband, Big Tech, on and on. If you make billions from a bad status quo and Biden's Administration signals they want to fix it, you'll spend a lot of dark money to stop them."
https://twitter.com/EFFFalcon/status/1517284654268641280
And what does it look like when dark money freezes up the FCC?
"There are big issues now before the FCC that we know the industry is trying to influence in one fashion or another," said Yosef Getachew, media and democracy director for Common Cause. "One example is digital discrimination."
That term refers to part of the FCC's mission: Addressing the fact that in many low-income and predominantly Black residential areas, internet service providers offer slower speeds but charge residents the same price as customers in whiter and more affluent neighborhoods who get faster speeds.
"It's clear the industry sees no problems with the status quo," said Getachew. "In a Senate where the Democratic majority is not high, they only need a couple of Democrats to tilt the balance in their favor."
Lobbying campaigns against Sohn, Getachew noted, have included those from the Fraternal Order of Police, which has opposed Sohn on the grounds that she personally supports end-to-end encrypted messaging (over which the FCC has no jurisdiction). The FOP argues it can delay police efforts to access cell phone records.
Everyone involved understands that "law enforcement access issues are not in the purview of the FCC," said Getachew. The FOP's opposition to Sohn, he suggested, is "driven by a larger industry."
