Love and money are likely to be the keys to the game. 

[Blogmeister’s Note: CommLawBlog welcomes back Catherine McCullough, who provides us with the following insight into the upcoming Congressional session. Catherine, who has guest-blogged for us previously, is a principal in Meadowbrook Strategic Government Relations, LLC and is a specialist in Congressional relations.]

Welcome to the 112th Congress. Notice anything missing? Like a third of the House Energy and Commerce Dems? Or a Congressional mandate on net neutrality? Or Chairman Boucher? Me too. So let’s take a few minutes to figure out what it all means.

Let’s start with the larger picture. This year’s midterms have put Members on notice that voters are not afraid to fire them. And each party is looking to 2012 to capture complete control of both houses of Congress and the White House.

So in the upcoming Congress look for Members to be feverishly competing for two things: love and money. Love in the form of votes (from an unusually angry electorate, eager to hold officials accountable). And money in the form of, well, money, i.e., the ability to spend government funds on their preferred projects (without, of course, looking fiscally irresponsible).

As we shall see, both love and money can be found in telecom policy. So it’s likely that telecom issues will get considerable attention from Congressional leadership, including precious “floor time” for debate. Here is how I see the 112th playing out.

In the quest for the love of the voters, among the most effective strategies an elected official can employ is legislative attention to consumer issues. Sure, foreign policy and national security and all kinds of other Big Issues are important. But to focus on consumers is to demonstrate that you’re thinking of them – and what better way is there to get them to think of you the next time they happen to be in a voting booth?

Interestingly, when the House and Senate are split between parties – as they will be in the coming term – consumer issues are even more likely to come to the fore. In that situation, neither side has the votes to ramrod controversial bills through. So there is a natural tendency for the majority party in each chamber to focus on legislation that will win that party the voter’s love. Happily, there is a similar tendency for the minority party in each chamber to go along with the majority, because to do otherwise would appear to be obstructionist. And when consumer interests are on the table, obstructionism is a definite voter turn-off.

So, in the world of telecom, issues such as online privacy are likely to be some of the first to be considered. Look for the draft bill floated by Rep. Boucher earlier this year to serve as a starting point. In order to pass a Republican House, the final legislation may not be what consumer groups wish, but in the end I believe there will be a bipartisan White House signing ceremony where all parties will take credit for protecting the privacy of their beloved voters.

(Fair bet: the signing ceremony will take place during the second year of the 112th Congress, possibly in the late Spring, before Members go home to star in their local Memorial Day and Fourth of July parades and start their campaigns.)

As to the less romantic but far more practical question of money, telecom policy is one of the few places it can be found. How? Think spectrum auctions. By providing for the sale of spectrum controlled by the government, Congress can generate revenue that can be used either to (a) “offset” any spending priorities Members might push for or (b) pay down debt.

While a large portion of valuable spectrum has already been dealt off in previous auctions, this term Congress could (if the FCC, the wireless industry and a number of others get their way) promote the sale of a big chunk of spectrum currently used for TV broadcasting.

Some initial steps in that direction have already been taken in the last several months in both the House and the Senate.  But if TV spectrum is ultimately auctioned, one of the most politically sticky problems will be how the auction proceeds are to be split.  Right now, politicians on both sides of the aisle, whether in the Administration or in Congress, are unusually motivated to make sure that that problem gets resolved quickly.  That’s because, once the manner of splitting the revenue has been set (even if only approximately), they will be able to calculate how much the government can expect to recoup from any such auction.  The auction-related bills which have already been dropped would let the FCC take the first cut at coming up with a revenue-sharing plan – but Congress will be keeping a careful eye on the FCC’s approach and will likely be poised to step in with its own formulation if the FCC’s is not to Congress’s liking.

Therefore, look for an unusually high amount of government cooperation – between parties, between the House and Senate, and between Congress and the Administration – when it comes to creating a formula during the next year.

Reform of the Universal Service Fund (USF) is an issue that represents both love and money for Congress. While some may view USF reform as a wonky issue of marketplace structure, it can still be sold to the voting public as a consumer issue because reform could lead to lower bills. (The Democratic-led Senate Commerce Committee’s focus on consumer issues could bolster support for this theme.) In addition, USF reform can also appeal to the pragmatic interest in “money” by generating real savings through the elimination of waste and fraud.

Again, look for the work Representative Boucher and his staff did in the 111th Congress to have some influence in the 112th. The Boucher/Terry bill introduced in July 2010 likely should serve as a starting point for future debate on the issue. In fact, much work to be done in the 112th Congress will be influenced by the work of the 111th, even though the ranks of House Energy and Commerce Democrats were so thinned by the election.

Telecom policy is somewhat unusual in Congress.  Commerce Committee leadership from both parties work together in a reasonably cooperative, collegial way – which is not the case in many other Committees.  Having worked as a Counsel on the Senate Commerce Committee, I can attest to the consistent efforts of the Chairmen and Ranking Members and the staffs to resolve differences and come up with bills that provide the FCC and its regulated industries clear guidance.  From my observation, changes in leadership and Committee makeup have less effect on the development of telecom legislation than they do in other areas.

That being said, there will be changes in the House and Senate Commerce Committees.  The changes on the Senate side will be small: the Chair and Ranking members will not change.  Because the number of Senate Republicans has increased (and, logically, the number of Senate Democrats had decrease), the Republican-Democrat balance on the committees (known as the “ratio”) will likely shift slightly – there will probably be one more Republican slot on the committee.

On the House side, changes will be stark.  Representative Barton is waging a campaign to keep his seat as top Republican on the Energy and Commerce Committee. However, he is subject to an internal “term limit” of sorts:  Republican conference rules prohibit a Member from holding a committee leadership slot for more than three terms. Since Barton has maxed out his tenure under that rule, he is seeking a waiver. His argument: during a part of his tenure the Republicans were in the minority, so he should be given a chance to head up the committee while it has majority power.

If Barton does not get his waiver, the seat will likely go to Rep. Stearns (R-FL-6th), the current head of the telecom subcommittee, Rep. Upton (R-MI-6th), or Rep. Shimkus (R-IL-19th). If Stearns leaves telecom to head up the full committee, it is possible that Rep. Walden (R-OR-2nd) will take the chair of the telecom subcommittee. Walden has a background in radio broadcasting and has expressed interest in the position.

On the Dem side of the House, Rep. Bobby Rush (D-IL-1st) is campaigning to head the telecom subcommittee now that Rep Markey (D-MA-7th) has declined to take back that subcommittee position. Also said to be interested in the plum position are Rep. Eshoo (D-CA-14th) and Rep. Doyle (D-PA-14th). We should know who will win these leadership posts after Thanksgiving; each conference is scheduled to vote on their leadership shortly.

Certainly the development of telecom policy is being watched closely by the Obama Administration. Less than 24 hours after polls closed across the country on election night and results began to be known, FCC leadership was summoned to a meeting at the White House. In my view, this underscores the Administration’s keen understanding of the role telecom policy plays in buoying our economy – and an understanding of how the new Congress’ pursuit of love and money is likely to impact the White House’s own chances to be re-elected 2012.