Brendan Carr is one firing away from an unchecked FCC

President Donald Trump already holds a Republican majority in the agency tasked with regulating America’s communications systems. But with a new nomination to the Federal Communications Commission, he could move to shut out opposing voices altogether — albeit at a legal risk.

The FCC is currently composed of two Republicans and one Democrat — Republican Chair Brendan Carr and Commissioner Olivia Trusty, and Democratic Commissioner Anna Gomez. This mixed group gives the agency a three-member quorum that allows it to vote on major actions, though it still falls short of the five members (no more than three from a single party) the FCC is meant to have. But late last week, Trump nominated a third Republican, Carr adviser Danielle Thumann Severs. If she’s confirmed, it won’t change the basic math of which policies win votes. But it would mean there’s a quorum even without Gomez. That could open the door to Trump firing the FCC’s lone Democrat, something she herself has wondered why he hasn’t already done.

Gomez may not have much hard power in the current FCC, but her removal would be a blow to the public interest. Commissioners often have access to information that the public might not otherwise know about, and can raise non-confidential issues in their public dissents and statements. And even in situations where dissenting voices are overruled, they can push the majority to offer more robust reasoning in their decisions. During the Trump administration, Gomez has used her post to call attention to FCC actions she thinks violate the First Amendment, and pushed back on policies loosening broadcast consolidation rules.

Trump could well be able to remove Gomez, given that he fired the Federal Trade Commission’s two Democrats without cause and got away with it. Like the FTC, the FCC was created as an independent agency, with a bipartisan panel of staggered terms that would supposedly insulate it from a given administration’s whims. But under the unitary executive theory, which Trump allies including Carr and FTC Chair Andrew Ferguson endorse, all power held by them belongs to the president. The Supreme Court’s ruling affirming Trump’s ability to fire the FTC’s Democrats bolstered this.

But there are still good reasons Trump could spare Gomez, particularly that firing her could put the FCC’s legitimacy in question, as former FCC senior staffer Blair Levin writes. Even after SCOTUS legitimized the FTC firings, the Communications Act’s language grants the FCC unique quirks. It could provide stronger legal ground to argue that one party can’t hold all the seats on the panel, Levin adds, and a court could determine it is more like the Federal Reserve, insulated from presidential firings, than the FTC.

Gomez’ term is technically lapsed, but she can stay on until the end of 2027 unless her seat is filled sooner, or she’s re-nominated. With limited Senate floor time ahead of the midterm elections and key Democrats’ opposition to confirming a Republican nominee without a Democratic one, the FCC could remain in a holding pattern for quite some time.