Can this Congress agree to agree?

Political gridlock is a problem, but in a 50-50 country you have to expect some issues will be hard to move forward.  In today’s Washington, however, Congress is stuck and immobilized even on issues where most of its members agree.  That’s gridlock on steroids, and it’s destructive to our civics.  

Consider the recent debate over the Internet protection rules called net neutrality.  These rules aren’t controversial – leaders of both parties and probably two thirds or more of the members of Congress agree that all traffic should move freely on the Internet and that Internet providers should not be able to block lawful websites or relegate competitors to second-class “slow lanes” online.   

{mosads}But despite this broad consensus, Congress has refused to act, leaving net neutrality in a litigation limbo that could last 3 years or more.   

Some Republicans refuse to pass a net neutrality law because they aren’t willing to give a President they dislike a win, even when they agree with him.  Some Democrats won’t budge because they would rather hold on to the more intrusive “utility-style” style regulatory approach employed by the FCC that goes far beyond what is necessary to protect the open Internet.  

The result is a too-familiar story of a government that fails to act through normal channels, leaving the rest of the government to scramble for “work-arounds” and half-measure solutions.

The Federal Communications Commission has attempted to fill the gap left by a congressional inaction with its own set of Internet regulations.  But due to the politics of the agency and potential gaps in its legal authority, the FCC rules go far beyond consensus net neutrality reforms, putting the entire Internet ecosystem at risk. 

The problem is that, while Congress’s authority to pass narrowly tailored, effective net neutrality rules is clear, the FCC’s power to broadly regulate in this area is less clear – twice already the courts have rejected FCC rules on the issue.   

As a result, the FCC has taken extreme measures to provide some legal footing for its neutrality rules, reclassifying the entire broadband Internet under a new, intrusive regime called “Title II” that has never before applied online. 

But the Title II approach brings with it extraordinary political and economic risk.  If Congress were to act, both sides would get exactly what they want – Democrats would win lasting, statutory net neutrality protection that could not be watered down by a future Republican administration as agency rules most surely could.  And Republicans would be able to ward off the regulatory overreach and economic collateral damage of the Title II approach. 

But if Congress does nothing, this win-win opportunity will disappear.  Either the courts will uphold the FCC utility approach and Republicans will lose the chance to rein in these regulatory excesses, or the courts will strike down the rules, leaving the net with no neutrality protection and depriving Democrats of the chance to partner with Republicans on a permanent statutory fix.  Either way, the American people lose.   

And the extra legal girder belts bring other, serious costs. Title II rules could add up to $14 billion in taxes and fees to consumer bills.  They could ultimately sweep in not just Internet providers, but application and content companies like Facebook, Apple, and more.  

Economists predict they will scare away new investment in broadband, even as citizens demand ever faster, stronger networks and global data traffic is predicted to increase tenfold in the next 5 years.  Internet providers have held three of the top ten slots among investors in our economy the last three years and were one of the driving forces keeping our economy afloat during the recent recession, yet this FCC approach could hamstring them. 

Congress on the other hand has the authority to pass strong neutrality rules without the wrecking ball of Title II.  Statutory rules would be virtually immune to legal challenge, unlike the shaky Title II experiment, which would leave us with no net neutrality protection at all if it is again struck down in court. 

There will always be disagreements in Congress.  It is the nature of our system of checks and balances and the complex constitutional obstacle course required to pass a law.  

But there are plenty of issues on which Congress actually agrees.  And on those – like net neutrality – the American people rightly expect their elected representatives to lead.

Lewis is executive director of the Progressive Policy Institute.