For the last year, Senate Commerce Committee Chairman John McCain, R-Ariz., has blocked Susan Ness of the FCC from being reappointed to that body. However, Congress adjourned on Friday. The president can appoint people to government positions without congressional approval when Capitol Hill is adjourned.
Now Ness will be able to vote on the AOL-Time Warner merger, a vote to be completed any day now. The FCC is widely expected to approve the merger, but special conditions may be attached to such an approval, and those will be voted on by the commission.
Without her, the commission would have been deadlocked at two Democrats and two Republicans, meaning a 3-1 vote of that group would have been needed to impose conditions such as opening up instant messaging.
The bottom line is that the FCC will continue to have a Democratic majority for the next few months, rather than a 2-2 Republican-Democratic split, until Bush can name a replacement. There are also rumors that Democratic Chairman William Kennard will step down soon, although he won't talk about his plans.
That retirement would open a seat for an outsider, perhaps Texas Public Utilities Commission Chairman Pat Wood. Wood has been hinted at as a possible FCC chairman in a Bush administration, although Commissioner Michael Powell appears to be the front-runner.
There is an argument that because the U.S. Constitution does not specifically give permission to a president to replace a recess appointment from his successor, Ness should have her job until Congress adjourns for the year in 2001, likely in October or November. In reality, however, presidents have replaced recess appointments.
On June 30,1999, Ness' five-year term expired, but she continued serving while the FCC awaited either her reappointment or a replacement. Clinton nominated her to serve another five years on July 19, 1999, but McCain never allowed a committee to vote on her selection, believing that one term was enough.
Ness is the longest-serving member of the FCC, having been appointed originally by Clinton in 1994. She is perhaps best-known for her work on universal service, the fund that comes from monthly phone bills to build telecommunications networks in remote areas.
"I welcome the opportunity to continue to work with my colleagues," Ness said in a statement.
Clinton appears to be serious about ensuring a Democratic presence in Washington as Bush takes over his job. Ness was one of five Democrats appointed to senior government positions by Clinton on Monday alone.