Congress Rolls Back Biden’s Illegal E-Rate Expansion

By James Erwin

Last week, Congress rolled back former president Biden’s illegal expansion of the E-Rate program. The Senate passed a resolution of disapproval under the Congressional Review Act despite an intense lobbying campaign from the American Library Association, which mobilized its state chapters to try and keep an unappropriated pot of money available for themselves.

E-Rate was established as an expansion of the Universal Service Fund in the 1996 Communications Act. USF is funded through (questionably constitutional) fees assessed by the FCC on phone companies, and chronically underfunds its ever-expanding suite of services. E-Rate provides money for school districts and libraries to offer internet service to students, staff, and whoever else wanders in.

As we covered just over a year ago, the Biden-era FCC expanded E-Rate to install Wi-Fi on school buses. Pitched as a way of addressing the “homework gap,” the idea was a foolish one and the funding was never made available for this purpose by Congress.

As Commissioner Nathan Simington wrote at the time in his dissent from the order, “Anyone who’s ever been in a school bus should have a healthy skepticism that most children will, in fact, sit quietly and do homework on their laptops, instead of socializing with the friends on the bus and browsing social media on their phones.”

The funding was also never authorized by Congress. While the FCC has plenary control of assessing the fees to fund USF (which is currently subject to a constitutional challenge since only Congress has the power to tax), they are still limited by statute on how to spend. With no limits, E-Rate could buy lawnmowers for superintendents’ personal use, so obviously some constraints must be operative for the program to make any sense and pass constitutional muster. The statute enacted by Congress explicitly states that E-Rate can fund Wi-Fi in the classroom or in the library, but not any other physical location.

Before this rule came into effect, Senator Ted Cruz and Congresswoman Cathy McMorris Rodgers, the lead Republicans on the Senate and House Commerce Committees at the time, sent a letter to FCC Chairwoman Jessica Rosenworcel that made a similar argument:

The proposed expansion of funding, including to fund Wi-Fi hotspots on school buses, is not only unlawful (the statute only allows for connectivity spending for classrooms and libraries) but raises concerns about subsidizing children’s unsupervised internet access to social media sites, like TikTok and Instagram, on their bus rides to and from school.

The FCC’s flagrant violation of the limitation warranted a Congressional rebuke, which came in the form of a CRA vote in the Senate last week. The Congressional Review Act allows Congress to overturn agency rulemakings and actions within 60 legislative days by passing a resolution through both houses by simple majority that is then signed by the president. It is a “privileged” motion in the Senate, so it is not subject to the 60-vote threshold to break a filibuster.

The whole CRA mechanism is itself somewhat absurd as a mechanism for reining in executive overreach because unless a CRA enjoys two-thirds support in each house, the president has to sign a resolution overruling his own administration’s rulemakings. It is unlikely these actions have been taken without his direction, and if he disagrees with the policy he can simply rescind any rules by executive order. It was therefore rarely used in its 50-year history before 2017. However, if the rulemaking occurs within the last 60 legislative days of a Congressional session, the clock resets after January 3 and the new Congress has 60 days to pass a CRA.

This means that if the presidency changes hands, last-minute rules from the previous administration, like this E-Rate expansion, can be overturned if Congress and the new president agree to do so. The added benefit of using the CRA rather than a new rulemaking is that it “salts the earth” so that no “substantially similar” regulation can be enacted in the future by the same agency. When Congress adjourned unusually early in 2016, setting the date for the CRA window back unusually far into the year, Republicans realized they had an unprecedented opportunity with their new trifecta in 2017 and permanently overturned no fewer than 17 rules from late in the Obama administration with the support of President Trump. The CRA has since become a more common feature of the legislative process in DC.

Despite intense lobbying from the American Library Association, who mobilized their state chapters to plead with moderate Republican senators, the Republican Conference held together and swatted down this irresponsible rule. The ALA chose their targets intelligently, flying members of their Maine and Alaska chapters to Washington, DC to appeal to independent-minded Senators Susan Collins and Lisa Murkowski. Both held the line and voted to strike down the rule. The libraries’ case may have been hurt by the fact that a grand total of zero libraries and only one school district in Maine even applied for the expanded funding. Alaska didn’t even have one applicant.

Collins and Murkowski are to be applauded for their courage in voting to strike down this unauthorized expansion of E-Rate, which passed by a party-line vote of 50-38 (many Senators were absent) last Thursday. It now goes to the House, who would do well to follow their example.