Trump Push to Rein in Social Media Hampered by Own Turn on Ally

President Donald Trump’s move to yank Republican FCC Commissioner Michael O’Rielly‘s renomination may backfire on his push to limit content liability protections for Twitter Inc. and other social media companies.

There’s scant chance Trump will get a replacement confirmed during this congressional session, and he may have tarnished any goodwill he had with O’Rielly, agency watchers say. Trump needs the backing of the Federal Communication Commission’s three Republicans to advance his push, which is opposed by the two Democratic members. O’Rielly can still serve through the end of the year.

O’Rielly, who has been on the commission through Democratic and Republican administrations, had his renomination pulled after expressing skepticism about the FCC’s authority to rein in tech company legal protections embedded in a part of the law known as Section 230. Trump in May signed an executive order directing the Commerce Department to petition the FCC to reduce the protections.

O’Rielly’s nomination was withdrawn just two weeks after it was advanced by the Senate Commerce, Science and Transportation Committee with some bipartisan support. But there was a good chance that O’Rielly would have at least still voted to seek comment on proposed rules the agency may produce in response to the Trump administration’s petition, said Gigi Sohn, a former FCC official.

“Despite what O’Rielly’s feelings were about the whole 230 exercise, I still think he would have voted for a notice for proposed rulemaking,” Sohn said. “So Trump shoots himself in the foot to the extent that O’Rielly may say, ‘Screw it.’”

Senator John Thune, the chamber’s No. 2 Republican, asked the White House to reinstate O’Rielly’s nomination, in part because it would be difficult to quickly put another commissioner in place, according to a source who spoke on condition of anonymity because the request isn’t public.

Trump on Aug. 5 mentioned Thune when asked about the senator questioning whether it would be legal for the president to use the White House for a renomination speech. “John Thune did?” Trump said. “The Republican John Thune?”

O’Rielly’s office declined to comment.

FCC Chairman Ajit Pai on Monday said the agency would seek initial comment for 45 days on the Trump administration’s petition. After that period, the next step would be for the agency to author proposed rules and vote to seek comment on them.

Broader Consequences

Trump’s executive order targets Section 230 of the Communications Decency Act, which protects tech companies from liability for moderating content on their platforms. Trump has accused social-media platforms like Twitter of censoring conservative voices.

O’Rielly, in a July 29 speech, said Trump is within his rights to seek review of the section. He criticized “certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives.”

O’Rielly said on C-SPAN in June that he had “deep reservations” about whether the FCC has the authority to rein in Section 230 protections.

Trump’s action also may make life harder for Pai. Lameduck FCC commissioners have in the past recused themselves from some or all agency votes so they can look for employment after their tenure, said Preston Padden, a longtime communications lobbyist.

If O’Rielly were to recuse himself, that would lead to a 2-2 split at the agency. Pai would no longer be able to count on a Republican majority to advance proposals opposed by Democrats.

And if former Vice President Joe Biden wins the presidential election, Democrats could get an advantage when they take the reins at the FCC.

Usually, FCC chairs step down when the opposite party wins the presidency. If O’Rielly isn’t reconfirmed and Pai steps down, Democrats would gain a 2-1 majority, with Brendan Carr the lone Republican vote. Without a check that O’Rielly could provide if he’s renominated and confirmed, “Democrats could get a strong head start on doing the kind of things they want to do, like bringing back net neutrality,” Padden said.

-- With reporting by Todd Shields