If you’re excited (or indeed worried) by reports that the Senate is about to save net neutrality, it’s time to calm down. The outcome of a vote today will almost certainly make no practical difference.
The excitement is over a Senate vote to repeal the recent FCC rule changes to stop enforcing the principles of net neutrality. While it’s largely a party line split, Democrats who called for the vote believe they have persuaded one Republican to join them which, with John McCain absent, should make for the narrowest of victories.
However, the procedures involved mean the vote is likely meaningless. What’s happening here is that the politicians involved want to use a Congressional power known as a discharge petition to overturn a planned agency rule change.
While this isn’t legislation, it has to not only go through the same process (a majority in both houses and then either be signed by the President or get a two-thirds majority in both houses) but this must be completed before the rule change takes effect. It’s unlikely the proposal would pass the House of Representatives and almost certain it would be vetoed by President Trump. Indeed, even if the numbers worked, it would be unlikely to go through the process by June 11 when the new rules take effect.
For those hoping to see net neutrality saved or restored, a couple of other options are more likely. One is the legislative route, which would involve creating a new law that specifically enforced net neutrality and thus over-rode FCC rules. Realistically that’s unlikely until if and when the political balance in DC changes significantly.
Another possibility is the judicial route, with several attempts either underway or in the works to persuade a court to overturn the changes. This would likely be based on the way the FCC made the decision rather than the substance of the rule changes themselves.
One such argument is that the FCC didn’t follow a convention that federal agencies don’t do a complete 180 on their previous decisions and stances solely because of a change in the political balance of their leadership; instead they must usually show a change in circumstances that justifies reversing a policy.