[House Report 117-510]
[From the U.S. Government Publishing Office]


117th Congress }                                          { Report
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 117-510

======================================================================
 
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT TO TRANSMIT TO THE HOUSE 
OF REPRESENTATIVES CERTAIN DOCUMENTS RELATING TO MISINFORMATION AND THE 
                      PRESERVATION OF FREE SPEECH

                                _______
                                

 September 28, 2022.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

           Mr. Pallone, from the Committee on Energy and Commerce, 
                         submitted the following

                             ADVERSE REPORT

                             together with

                             MINORITY VIEWS

                      [To accompany H. Res. 1264]

    The Committee on Energy and Commerce, to whom was referred 
the resolution (H. Res. 1264) of inquiry requesting the 
President to transmit to the House of Representatives certain 
documents relating to misinformation and the preservation of 
free speech, having considered the same, report unfavorably 
thereon without amendment and recommend that the resolution not 
be agreed to.

                                CONTENTS

                                                                   Page
                                                                   
   I. Purpose and Summary.............................................2
  II. Background and Need for the Legislation.........................2
 III. Committee Hearings..............................................5
  IV. Committee Consideration.........................................5
   V. Committee Votes.................................................5
  VI. Oversight Findings..............................................7
 VII. New Budget Authority, Entitlement Authority, and Tax Expenditure7
VIII. Federal Mandates Statement......................................7
  IX. Statement of General Performance Goals and Objectives...........7
   X. Duplication of Federal Programs.................................7
  XI. Committee Cost Estimate.........................................7
 XII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits.....7
XIII. Advisory Committee Statement....................................7
 XIV. Applicability to Legislative Branch.............................8
  XV. Section-by-Section Analysis of the Legislation..................8
 XVI. Changes in Existing Law Made by the Bill, as Reported...........8
XVII. Minority Views..................................................9

                         I. PURPOSE AND SUMMARY

    H. Res. 1264 requests that the President transmit to the 
House of Representatives, within 14 days of adoption, records 
in his possession, or any portion of any record, related to the 
communication or coordination between the personnel of the 
Executive Office of the President and the personnel of the 
Federal Communications Commission (FCC) with respect to (1) 
regulation of programming decisions by multichannel video 
programming distributors relating to misinformation; (2) 
regulation of programming decisions by broadcast stations 
relating to misinformation; (3) regulation of programming 
decisions by providers of video streaming services and other 
over-the-top video programming distributors; (4) issuing any 
rule, regulation, policy, doctrine, standard, or other 
requirement that has the purpose or effect of reinstating or 
repromulgating the ``Fairness Doctrine''; (5) requesting that 
action be taken by the FCC related to the regulation of Big 
Tech; and (6) any discussion of preservation of the First 
Amendment to the Constitution.

                II. BACKGROUND AND NEED FOR LEGISLATION

    Under the Rules and precedents of the House, a resolution 
of inquiry is a means by which the House requests information 
from the President of the United States or the head of one of 
the executive departments. Such resolutions must ask for facts, 
documents, or specific information; they may not be used to 
request an opinion or require an investigation. Resolutions of 
inquiry, if properly drafted, are given privileged 
parliamentary status in the House. Clause 7 of rule XIII of the 
Rules of the House of Representatives requires the committee to 
which the resolution is referred to act on the resolution 
within 14 legislative days, or a motion to discharge the 
committee from consideration is considered privileged on the 
floor of the House.\1\
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    \1\House Rule XIII, clause 7.
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    H. Res. 1264 requests that the President transmit to the 
House records related to communication between the Executive 
Office of the President and personnel of the FCC with respect 
to the regulation of programming decisions related to 
misinformation by multichannel video programming distributors 
(MVPDs), broadcast stations, and providers of video streaming 
services and other over-the-top video programming distributors; 
reinstatement of the Fairness Doctrine; regulation of Big Tech; 
or the preservation of the First Amendment.
    The Committee reported this resolution of inquiry adversely 
to the House because it is unwarranted, and the concerns it 
suggests with respect to prospective Commission actions that 
may violate the First Amendment have been fully addressed, 
repeatedly and publicly, by FCC Chairwoman Jessica Rosenworcel. 
Chairwoman Rosenworcel has spoken frequently over many years of 
public service of her reverence for the First Amendment and her 
opposition to governmental actions that could chill or stifle 
speech. Moreover, there has been no evidence presented to 
suggest any attempt by the Biden Administration to improperly 
influence the Commission to take actions contrary to the law or 
the Chairwoman's publicly stated views or commitments.
    During her most recent Senate confirmation process, which 
resulted in bipartisan support for her confirmation in the 
Senate,\2\ Chairwoman Rosenworcel responded clearly to a number 
of questions for the record related to the topics raised in the 
resolution. In one question for the record, Senator Marsha 
Blackburn (R-TN) described calls on MVPDs to drop channels and 
calls on the FCC to revoke broadcast licenses based on 
political viewpoints and pointedly asked Chairwoman 
Rosenworcel: ``Are you in favor of these calls to use the FCC 
to remove certain viewpoints from the airwaves?''\3\ Chairwoman 
Rosenworcel responded unequivocally: ``No.''\4\
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    \2\U.S. Senate, Roll Call Vote on the Nomination (Confirmation: 
Jessica Rosenworcel, of Connecticut, to be a Member of the Federal 
Communications Commission) (Dec. 7, 2021) (68 yeas, 31 nays, 1 not 
voting).
    \3\Senate Committee on Commerce, Science, and Transportation, 
Executive Session and Nominations Hearing, Question for the Record to 
Jessica Rosenworcel, Sen. Marsha Blackburn, 117th Congress (Nov. 17, 
2021).
    \4\Id.
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    In another question for the record, Senator Ron Johnson (R-
WI) asked Chairwoman Rosenworcel: ``Will you commit to ensuring 
the FCC does not factor political content or viewpoints when 
issuing licenses, making regulatory decisions, or approving 
mergers and acquisitions?''\5\ Chairwoman Rosenworcel replied: 
``Yes.''\6\ Senator Johnson also asked: ``Will you commit to 
ensuring the continued independence of the FCC?''\7\ Again, 
Chairwoman Rosenworcel replied: ``Yes.''\8\
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    \5\Senate Committee on Commerce, Science, and Transportation, 
Executive Session and Nominations Hearing, Question for the Record to 
Jessica Rosenworcel, Sen. Ron Johnson, 117th Congress (Nov. 17, 2021).
    \6\Id.
    \7\Id.
    \8\Id.
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    In yet another question for the record, Senator Rick Scott 
(R-FL) asked: ``The FCC has authority over broadcast licenses. 
As a nominee for this bipartisan commission, do you believe the 
government has the authority to censor opinions?''\9\ 
Chairwoman Rosenworcel responded: ``No. FCC authority is 
limited by the First Amendment and Section 326 of the 
Communications Act.''\10\
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    \9\Senate Committee on Commerce, Science, and Transportation, 
Executive Session and Nominations Hearing, Question for the Record to 
Jessica Rosenworcel, Sen. Rick Scott, 117th Congress (Nov. 17, 2021).
    \10\Id.
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    This is no surprise. All federal agencies are bound by the 
United States Constitution and their authorizing statutes. The 
FCC consistently educates the public about the limitations to 
its authority with respect to protected speech in materials 
available on its website. In one consumer guide, entitled ``The 
FCC and Speech,'' the agency explicitly states: ``The FCC has 
limited legal authority to act on complaints relating to the 
content of television or radio programming.''\11\ The document 
goes on to explain, in part: ``The limitations on the FCC's 
power to restrict or ban speech begin with the First Amendment 
to the U.S. Constitution.''\12\ The document goes on to 
describe Section 326 of the Communications Act, which 
explicitly states that nothing in the statute ``shall be 
understood or construed to give the Commission the power of 
censorship over the [broadcast] communications or signals 
transmitted by any [broadcast] station, and no regulation or 
condition shall be promulgated or fixed by the Commission which 
shall interfere with the right of free speech by means of 
[over-the-air] broadcast communication.''\13\
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    \11\Federal Communications Commission, Consumer Guide: The FCC and 
Speech (last reviewed Aug. 31, 2022) (www.fcc.gov/sites/default/files/
fcc-and-speech.pdf).
    \12\Id.
    \13\Id. (citing 47 U.S.C. Sec. 326).
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    Members of the minority corresponded with Chairwoman 
Rosenworcel on many issues raised in this resolution. Earlier 
during this Congress, Committee Ranking Member McMorris Rodgers 
(R-WA), Communications and Technology Subcommittee Ranking 
Member Latta (R-OH), Rep. Guthrie (R-KY), Rep. Bilirakis (R-
FL), Rep. Johnson (R-OH), Rep. Long (R-MO), Rep. Mullin (R-OK), 
Rep. Hudson (R-NC), Rep. Walberg (R-MI), Rep. Buddy Carter (R-
GA), Rep. Duncan (R-SC), Rep. Curtis (R-UT), and Rep. Lesko (R-
AZ) sent a letter to Chairwoman Rosenworcel urging her to 
``defend free speech and freedom of the press.''\14\ They 
further urged the Chairwoman to ``use [her] position to 
preserve and protect our fundamental freedoms that are 
protected by the First Amendment'' and ``denounce any attempts 
by government officials to use their power to threaten a free 
press at such an important time in our Nation's history.''\15\ 
The minority members told the Chairwoman that her own words 
``sum[med] it up best'' when she said: ``Governments that 
threaten to chill speech can discipline private sector actors 
without changes in law ever becoming necessary.''\16\ With 
respect to the Fairness Doctrine specifically, the minority 
members highlighted statements from 2011 and 2017 indicating 
Chairwoman Rosenworcel's opposition to its reinstatement.
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    \14\Letter from Rep. Cathy McMorris Rodgers, Ranking Member, House 
Committee on Energy and Commerce, to Jessica Rosenworcel. Acting 
Chairwoman, Federal Communications Commission (Feb. 24, 2021).
    \15\Id.
    \16\Id. at 2 (quoting Statement of Hon. Jessica Rosenworcel, July 
27, 2020).
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    Chairwoman Rosenworcel responded to the minority's 
letter.\17\ She wrote: ``As you note, I have long advocated for 
and defended the First Amendment. I also agree with you that 
protection of free speech, viewpoint diversity, and independent 
journalism is vital for our democracy . . . These principles 
are the basic foundation of all Federal Communications 
Commission media policies. I wholeheartedly support them.''\18\ 
On the Fairness Doctrine, she noted her public opposition to 
its resurrection in 2011 and 2017 and stated that she 
``remain[s] mindful of the limitations of a doctrine from the 
1940s and recognize[s] any effort to update it will require 
action from Congress. Furthermore, any work to do so would be 
constrained by the First Amendment.''\19\
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    \17\Letter from Jessica Rosenworcel, Acting Chairwoman, Federal 
Communications Commission, to Rep. Cathy McMorris Rodgers, Ranking 
Member, House Committee on Energy and Commerce (June 4, 2021).
    \18\Id.
    \19\Id. at 1-2.
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    The suggestion in the resolution, without any supporting 
evidence, that the Biden Administration would seek to 
improperly influence the FCC to take actions violative of the 
First Amendment and that Chairwoman Rosenworcel and the oath-
bound career public servants that work there would be receptive 
to such influence, is beyond implausible and completely 
disproven by extensive public evidence to the contrary.
    Even if there were some legitimate issue to explore with 
respect to the topics raised in the resolution, it appears 
premature as the majority is aware of no effort made by Rep. 
Carter or any member in the minority to obtain the documents 
requested through other means. Resolutions of inquiry have 
historically been used when an administration has failed to 
adequately respond to committee or member requests.\20\
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    \20\House Committee on Energy and Commerce, Resolution of inquiry 
requesting the President of the United States and directing the 
Secretary of Health and Human Services to transmit certain information 
to the House of Representatives relating to plans to repeal or replace 
the Patient Protection and Affordable Care Act and the health-related 
measures of the Health Care and Education Reconciliation Act of 2010, 
115th Cong. (2017) (H. Rept. 115-54).
---------------------------------------------------------------------------
    The majority remains committed to conducting oversight of 
the FCC and investigating credible threats to the First 
Amendment, freedom of speech, and freedom of the press. 
However, H. Res. 1264 is unnecessary and represents neither 
effective oversight nor an appropriate investigatory effort. 
Therefore, the Committee ordered H. Res. 1264 reported to the 
House adversely.

                        III. COMMITTEE HEARINGS

    The Committee on Energy and Commerce has not held hearings 
on H. Res. 1264.

                      IV. COMMITTEE CONSIDERATION

    H. Res. 1264 was introduced on July 26, 2022, by 
Representative Buddy Carter and was referred to the Committee 
on Energy and Commerce. Subsequently, on July 27, 2022, the 
resolution was referred to the Subcommittee on Communications 
and Technology. The resolution was discharged from the 
Subcommittee on Communications and Technology on September 21, 
2022.
    On September 21, 2022, the Committee met in open markup 
session and ordered H. Res. 1264, without amendment, adversely 
reported to the House by a record vote of 30 yeas and 19 nays.

                           V. COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. The 
Committee advises that there was one record vote taken on H. 
Res. 1264, including a motion by Mr. Pallone ordering H. Res. 
1264 adversely reported to the House, without amendment. The 
motion on forwarding the resolution adversely was approved by a 
record vote of 30 yeas to 19 nays. The following is the record 
vote taken during Committee consideration, including the names 
of those members voting for and against:


                         VI. OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII and clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, the 
oversight findings and recommendations of the Committee are 
reflected in the descriptive portion of the report.

 VII. NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    Pursuant to 3(c)(2) of rule XIII of the Rules of the House 
of Representatives, the Committee adopts as its own the 
estimate of new budget authority, entitlement authority, or tax 
expenditures or revenues contained in the cost estimate 
prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.
    The Committee has requested but not received from the 
Director of the Congressional Budget Office a statement as to 
whether this bill contains any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.

                    VIII. FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

       IX. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to request 
that the President transmit certain documents with respect to 
communications between the Executive Office of the President 
and the FCC.

                   X. DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of rule XIII, no provision of H. 
Res. 1264 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111--139 or the 
most recent Catalog of Federal Domestic Assistance.

                      XI. COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

    XII. EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H. Res. 1264 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                   XIII. ADVISORY COMMITTEE STATEMENT

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                XIV. APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

           XV. SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H. Res. 1264 requests that the President transmit to the 
House of Representatives, within 14 days of adoption, records 
in his possession, or any portion of any record, related to the 
communication or coordination between the personnel of the 
Executive Office of the President and the personnel of the FCC 
with respect to: regulation of programming decisions by MVPDs 
relating to misinformation; regulation of programming decisions 
by broadcast stations relating to misinformation; regulation of 
programming decisions by providers of video streaming services 
and other over-the-top video programming distributors; issuing 
any rule, regulation, policy, doctrine, standard, or other 
requirement that has the purpose or effect of reinstating or 
repromulgating the ``Fairness Doctrine''; requesting that 
action be taken by the FCC related to the regulation of Big 
Tech; and any discussion of preservation of the First Amendment 
to the Constitution.

       XVI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    There are no changes to existing law made by the bill H. 
Res. 1264.

                          XVII. MINORITY VIEWS

    H. Res. 1264, introduced by Rep. Buddy Carter (GA), 
requests copies of any document, record, audio recording, 
memorandum, call log, correspondence (electronic or otherwise), 
or other communication in President Biden's possession, or any 
portion of any document, record, audio recording, memorandum, 
call log, or correspondence (electronic or otherwise), or other 
communication that refers to or relates to the communication or 
coordination between the Executive Office of the President and 
the personnel of the Federal Communications Commission with 
respect to the regulation of programming decisions by 
multichannel video programming distributors, broadcast 
stations, and providers of video streaming services and other 
over-the-top video programming distributors relating to 
misinformation; the FCC reinstating the Fairness Doctrine; 
requesting action by the FCC related to the regulation of Big 
Tech; and any discussion of preservation of the First 
Amendment.
    The Federal Communications Commission (FCC) is an 
independent agency charged by Congress to regulate ``interstate 
and foreign commerce in communications by radio and wire.''\1\ 
Despite its independence, the FCC, under Democrat leadership, 
has a history of succumbing\2\ to pressure from leaders within 
its own party.\3\ Based on Democrat leaders' censorship mission 
under the Biden Administration, this Resolution of Inquiry is 
entirely appropriate.
---------------------------------------------------------------------------
    \1\Communications Act of 1934, 47 U.S.C. 151.
    \2\https://www.fcc.gov/document/fcc-releases-open-internet-order.
    \3\https://obamawhitehouse.archives.gov/blog/2014/11/10/president-
obama-urges-fcc-implement-
stronger-net-neutrality-rules.
---------------------------------------------------------------------------
    Since the beginning of 2021, when Democrats began their 
one-party rule of Washington, their party has been on a mission 
to pressure mass media companies to shut down conservative 
viewpoints.
    On February 22, 2021, Democrat Representatives Anna Eshoo 
(CA) and Jerry McNerney (CA) sent letters to 12 large cable, 
satellite, and Internet programming distributors pressuring 
them into dropping Fox News, Newsmax, and One America News.\4\ 
Then, House Democrats held a hearing in the Subcommittee on 
Communications and Technology titled, ``Fanning the Flames: 
Disinformation and Extremism in the Media,'' where they doubled 
down on their efforts to pressure traditional media outlets to 
censor conservative content.\5\
---------------------------------------------------------------------------
    \4\https://eshoo.house.gov/sites/eshoo.house.gov/files/Eshoo-
McNerney-TV-Misinfo%20Letters-
2.22.21.pdf.
    \5\https://energycommerce.house.gov/committee-activity/hearings/
hearing-on-fanning-the-flames-disinformation-and-extremism-in-the-
media.
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    This was just the beginning of efforts by Democrats to 
censor viewpoints with which they disagree. There is also 
sufficient evidence that the Biden administration has taken 
action to encourage entities to engage in censorship 
activities. On July 15, 2021, Surgeon General Vivek Murthy 
issued a Surgeon General Advisory on ``health misinformation'' 
in which the Surgeon General demanded, ``tech and social media 
companies must do more to address'' perceived health 
misinformation.\6\ At a press conference that same day, the 
Surgeon General decried technology companies facing ``little 
accountability'' for the spread of health misinformation.\7\ At 
the same press conference, White House Press Secretary Jen 
Psaki disclosed that the Surgeon General's office is monitoring 
content on technology platforms and that the Biden 
administration has been in ``regular touch with'' social media 
platforms to pressure them to ``move more quickly to remove 
harmful, violative posts.''\8\ On February 1, 2022, Press 
Secretary Psaki applauded Spotify for adding disclaimers to 
certain episodes of The Joe Rogan Experience, but implicitly 
suggested Spotify deplatform Joe Rogan by demanding ``more . . 
. be done.''\9\ Subsequently, on March 3, 2022, the Surgeon 
General Murthy formally requested that technology companies 
submit information about COVID-19 misinformation.\10\ The 
Surgeon General demanded information about the ``COVID-19 
misinformation policies on individual technology platforms'' 
and, even more alarming, specific information about individuals 
who are considered to be ``sources of COVID-19 
misinformation.''\11\ As if this were not enough, the Biden 
Administration's Department of Homeland Security tried to 
establish a Disinformation Governance Board to continue their 
censorship mission.
---------------------------------------------------------------------------
    \6\U.S. Department of Health and Human Services, U.S. Surgeon 
General Issues Advisory During COVID-19 Vaccination Push Warning 
American Public About Threat of Health Misinformation (July 15, 2021), 
available at https://www.hhs.gov/about/news/2021/07/15/us-surgeon-
general-issues-advisory-during-covid-19-vaccination-push-warning-
american.html.
    \7\White House, Press Briefing by Press Secretary Jen Psaki and 
Surgeon General Dr. Vivek H. Murthy (July 15, 2021), available at 
https://www.whitehouse.gov/briefing-room/press-
briefings/2021/07/15/press-briefing-by-press-secretary-jen-psaki-and-
surgeon-general-dr-vivek-h-
murthy-july-15-2021/.
    \8\Id.
    \9\Steven Nelson, Psaki cheers Spotify warning on COVID podcasts, 
says `more' should be done, New York Post (Feb. 1, 2022), available at 
https://nypost.com/2022/02/01/psaki-cheers-spotify-warning-on-joe-
rogans-covid-podcasts/.
    \10\Davey Alba, The surgeon general calls on Big Tech to turn over 
Covid-19 misinformation data, New York Times (Mar. 3, 2022), available 
at https://www.nytimes.com/2022/03/03/technology/surgeon-general-covid-
misinformation.html.
    \11\U.S. Department of Health and Human Services, Impact of Health 
Misinformation in the Digital Information Environment in the United 
States Throughout the COVID-19 Pandemic Request for Information, (Mar. 
4, 2022), available at https://public-inspection.federalregister.gov/
2022-04777.pdf.
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    Indeed, FCC Chairwoman Jessica Rosenworcel has stated on 
numerous occasions that she has ``long advocated for and 
defended the First Amendment.'' If that continues to be the 
case, then Chairwoman Rosenworcel can turn over these documents 
to Congress without any reservation since she should have 
nothing to hide.
    Additionally, Republicans have not had ample opportunity to 
question Chairwoman Rosenworcel about these topics before the 
Energy and Commerce committee. In the nearly two years since 
she has been in control of the FCC, she has appeared before the 
Committee once. That is a dereliction of our Committee's 
oversight duty and no real means of getting answers to 
significant questions such as whether the Biden Administration 
has unduly pressured her to violate the First Amendment.
    Our nation was founded on the battle of ideas. It is the 
only country that has an inalienable right to the freedom of 
speech, which is one of the many reasons that our country is so 
great. The cure to fighting speech should be more speech, not 
less. This censorship mission of the Biden Administration and 
Congressional Democrats threatens the future of our democracy, 
and Congressional Republicans demand transparency and 
accountability of their actions.
                                    Cathy McMorris Rodgers,
               Republican Leader, Committee on Energy and Commerce.

                                  [all]