ANALYSIS/OPINION:

The Federal Communications Commission (FCC) apparently is headed for a 3-2 party-line vote to regulate the Internet on Dec. 21, which Commissioner Robert M. McDowell (a stalwart free-market champion who opposes the regulations) points out is the darkest day of the year. In doing so, the FCC is putting the new Congress to a key first test of whether it can muster the will to overturn the Obama administration’s backdoor efforts to push a far-left agenda through regulation.

Regulating the Internet under the banner of so-called network neutrality has been a far-left cause celebre for about eight years. The scare story has always been that if government doesn’t step in immediately, the phone and cable companies will block access to websites, interfere with traffic and otherwise ruin the Internet. It hasn’t happened, and it won’t happen, because of competition. It works. A company that messed with its customers would lose them to a competitor. And competition is only increasing as next-generation wireless becomes an increasingly viable option for home broadband Internet.

But the “problem” the left has been trying to solve is something much bigger than the network-management practices of the phone and cable companies. The left is trying to strike a blow against the free-market system itself, as the leading proponent of these regulations, Robert W. McChesney, founder of the lobbying group Free Press, made clear when he said:

“You will never, ever, in any circumstance, win any struggle at any time. That being said, we have a long way to go. At the moment, the battle over network neutrality is not to completely eliminate the telephone and cable companies. We are not at that point yet. But the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.”

FCC Chairman Julius Genachowski’s press secretary, Jen Howard, came to the FCC from Mr. McChesney’s Free Press, where she served in the same capacity. The FCC’s chief diversity officer, Mark Lloyd, co-authored a Free Press report calling for severe regulation of political talk radio. Mr. McChesney’s big-picture strategy looms large at the commission, and the new network-neutrality regulations will move us toward his goal by chilling innovation in network practices and business arrangements by adding unnecessary regulatory interference.

While the FCC is legally an independent agency, under Mr. Genachowski it is a clear extension of the White House. President Obama himself said: “I will take a back seat to no one in my commitment to network neutrality,” and the White House has endorsed the FCC’s latest power grab. Mr. Genachowski, a Harvard Law School friend of Mr. Obama’s and one of his top fundraisers, is one of the most frequent visitors to the White House. Official visitor logs show 78 visits, including at least 11 personal meetings with the president.

These Obama-FCC regulations have been rejected already by Congress and the American people. More than 300 members of Congress signed letters of opposition to FCC Internet regulation, and just 27 have sponsored Rep. Edward J. Markey’s bill to impose network-neutrality rules. The bill has not even been introduced in the Senate this Congress. Last Congress, there were just 11 Senate co-sponsors. (Mr. Obama was one of them.) During the recent election, the issue proved an embarrassment for Democrats. A group called the Progressive Change Campaign Committee touted a net-neutrality pledge signed by 95 candidates. All 95 lost.

This sets up a crystal-clear test case of whether the Obama administration can get away with ignoring the election, Congress, the legitimate legislative process and the American people to force a big-government power grab through a regulatory back door.

To pass the test, the House should pass a joint resolution of disapproval under the Congressional Review Act, overturning the network-neutrality order. Senate Republicans then can force a Senate vote with a petition of just 30 senators and force a floor vote that would require just 51 votes to pass. The Congressional Review Act would protect the privileged resolution from filibuster. The Senate has 60 legislative days from when the order is issued on Dec. 21 before the privileged status is lost.

Using the Congressional Review Act would require just four Democratic senators to join Republicans in saying the FCC should not be permitted to create for itself vast new regulatory powers. If it succeeds, it will dare Mr. Obama to concede and suffer a political loss as Congress asserts its power, or veto it and take full ownership of completely disregarding this election to keep pushing left with ever more government control. Either way, it would be a huge statement from Congress that regulatory power grabs will not go unnoticed.

Congress must assert itself now before the Obama administration uses regulatory back doors to thwart the electorate and continue shoving the country hard to the left. If the FCC can get away with this, expect the Environmental Protection Agency to be emboldened in its backdoor “cap-and-trade” efforts and the National Labor Relations Board in its backdoor card-check efforts. Expect the vast new regulations from the Department of Health and Human Services and the new Consumer Financial Protection Bureau under the health care and financial regulation laws to be extremely aggressive.

Stopping the FCC is critical to remind President Obama and all the bureaucrats that Congress is elected by the American people to make the laws in this country.

Phil Kerpen is vice president for policy at Americans for Prosperity.

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