As FCC Nears Vote on Net Neutrality, Focus Turns to Congress

Sen. Rand Paul, R-Ky.

Sen. Rand Paul, R-Ky. J. Scott Applewhite/AP

Republicans have lost the net neutrality fight. But that doesn't mean they'll stop talking about the issue.

Republicans have lost the net neutrality fight. But that doesn't mean they'll stop talking about the issue.

The Federal Communications Commission is on the precipice of voting this week to enact White House-backed regulations that would reclassify broadband Internet as a utility and block so-called "fast lanes" on mobile and Internet devices.

Republicans in Congress and on the 2016 campaign trail already have shown an eagerness to portray the vote as another example of executive overreach by the Obama administration. They plan to continue slamming the president for avoiding Congress in a similar vein to recent executive actions on immigration, Cuba, and environmental regulations.

In November, after President Obama came out in support of declaring the Internet a "telecommunications service," Sen. Ted Cruz's tweet condemning the plan as "Obamacare for the Internet" went viral. Sen Marco Rubio hasn't shied away from bashing the rules as a free-market-killing plot that "threatens to restrict Internet growth and increase costs on Internet users."

And Sen. Rand Paul has deployed both arguments, deriding net neutrality as an harbinger of a tax on the middle class while declaring in an email blast earlier this month that "We've seen this movie before—it's called Obamacare."

Fans of the FCC's action—and even some of its opponents—say these kind of headline-grabbing "King Obama" attacks betray a lack of understanding or interest about the actual policy disputes undergirding the net neutrality fight. But they underscore a belief that if Republicans can't win a debate about net neutrality, they can at least win by using it as another prop to denounce what they see as a series of cavalier power grabs by the Obama administration.

To get a jump on Thursday's FCC vote, Republicans will use a House Energy & Commerce on Wednesday to further blast the agency and tout their legislative approach that would block ISPs from blocking websites, selectively slowing traffic or creating fast lanes—but not redefine the Internet as a public utility. And on Friday, the libertarian group TechFreedom will host GOP commissioners Ajit Pai and Michael O'Rielly for a "fireside chat" to discuss the new net neutrality rules.

Meanwhile, three congressional committees have announced plans to investigate whether the White House exerted improper influence over FCC Chairman Tom Wheeler and the agency as a whole as it considered different net neutrality options. It's not the next Benghazi, but observers expect those probes to drag on for at least several months and offer endless opportunity to hit the White House.

Wheeler has denied that Obama is pulling strings at his agency, or that the plan will result in any new fees or regulated Internet prices. He has told Congress that it should feel free to pursue net neutrality legislation after the FCC acts, saying, "We have been at this for a year, and it's time to shoot."

Internet activists have also grown exceptionally tired of the partisan jabs and question the GOP's wisdom in trying to link the net neutrality vote to a broader big government narrative.

"After Title II goes through and the sky doesn't fall and a bunch of these outrageous claims from the telecom lobby don't come true, my hope is that the Republicans will see the writing on the wall and realize this is not a sword worth falling on," said Evan Greer, campaign director of Fight for the Future, a left-leaning advocacy group that supports Title II regulation. "If Republicans know what's good for them, they're going to drop this. It's not a good issue for them, it doesn't resonate with their base."

Beneath the high-octane rhetoric, a small, dedicated group of Republican lawmakers like Sen. John Thune and Reps. Greg Walden and Fred Upton are doing just that. They have made clear they intend to keep working on net neutrality legislation as an alternative to the FCC rules—a priority that is likely to get wrapped up in an ongoing push to rewrite the Telecommunications Act.

Politically and policy-wise, Republicans aren't giving up on net neutrality. But Democrats aren't, either. To them, net neutrality proved an advantageous policy win, one where mass mobilization of progressive activists helped spur Obama and the FCC into adopting tough rules to protect an open Internet—a point even some who hate the plan will concede.

"This is the perfect wedge issue," said Berin Szoka, executive director of TechFreedom, which opposes the upcoming FCC move. "Republicans are really bad at messaging on this. For Democrats, they have a message that sounds great. Their message is far, far simpler."

That message, at its core, is one of protecting the Internet as it is, while accusing Republicans of kowtowing to super-rich cable juggernauts at the expense of making the Internet a "pay-to-play" world. Szoka speculated that net neutrality could get air time from Democrats during the 2016 cycle, especially if likely Democratic presidential candidate Hillary Clinton faces a worthwhile challenge on the left from a populist firebrand like Sen. Elizabeth Warren.

While Clinton has been largely mute on net neutrality, Warren came out swinging last year, saying in a speech that "the Internet shouldn't be rigged to benefit big corporations, and that means real net neutrality." A challenger from a populist like Warren could make net neutrality a buzzy topic in primaries for both parties.

Another Washington reality: Lobbying will continue as long as there is money to be made.

"This is the [new] culture wars," Szoka said. "Think about the gay marriage debate, for example. People who have made a living of the fight on both sides need to keep the fight going."

This story has been updated.