Ongoing fight for Senate threatens fate of key bill targeting tech giants

Even if Democrats secure Senate control, their chances of passing the bill, or other antitrust legislation targeting tech giants, in the next Congress are slim with Republicans poised to win control of the House — making the lame-duck session the best shot for the bill’s supporters. 

“If Republicans take control of the House, we won’t see any kind of regulation over big tech,” said Sacha Haworth, executive director of the Omidyar Network-funded advocacy group the Tech Oversight Project. 

Rep. Ken Buck (R-Colo.), the ranking member of the House Judiciary antitrust subcommittee, made the same assessment in March, telling The Washington Post at the time “the antitrust bills that we are currently considering will not move forward under Republican leadership, and that’s been a very clear signal that has been sent, and I believe the tech companies are trying to run out the clock.” 

House Minority Leader Kevin McCarthy (R-Calif.), poised to take over as Speaker if Republicans secure the majority, and House Judiciary ranking member Jim Jordan (R-Ohio), set to take control of the committee in the same instance, have both pushed back against the antitrust bills, meaning such legislation would be unlikely to advance under their leadership. The GOP leaders instead are likely to push forward with an agenda that targets tech companies’ content moderation policies should they win control. 

Haworth said McCarthy and Jordan are “more interested in blustering about big tech” and “railing against them publicly” than they are in “seriously addressing tech’s anticompetitive policies.”

The main bill in question is the American Innovation and Choice Online Act, led by Sen. Amy Klobuchar (D-Minn.) and Sen. Chuck Grassley (R-Iowa). It advanced out of the Senate Judiciary Committee in January with bipartisan support, bridging together unlikely allies like Sen. Dick Durbin (D-Ill.) and Sen. Josh Hawley (R-Mo.). A companion bill advanced in the House last year, but both have sat stagnant without floor votes in either chamber as tech companies and industry groups have flooded lawmakers with lobbying efforts against them. 

A spokesperson for Senate Majority Leader Charles Schumer (D-N.Y.) in August pledged to bring the bill to a vote, but he has yet to commit to a specific timeframe. A spokesperson for Schumer did not respond to a request for comment Thursday. 

On CNN‘s “This Morning” Thursday, Klobuchar made another push for her antitrust legislation.

“We need to do something about monopolies,” Klobuchar said. 

“Many countries are working on this. We haven’t done anything except get the bill I have with Sen. Grassley to the floor and we need a vote,” she added.

With lawmakers’ sights now set on Georgia, as Sen. Raphael Warnock (D) and GOP Challenger Herschel Walker prepare to face off again in December, the window of opportunity may be shrinking. Senate control will be determined by the race, as it was in 2020, if Democrats lose even one seat in the Arizona or Nevada races, both of which have yet to be called.

Adam Kovacevich, founder and CEO of the tech industry group Chamber of Progress, said a major factor at play for the fate of the legislation is simply time. 

“Because there’s this Georgia runoff that could be the determining race in control of the Senate, I think the parties might be eyeing each other kind of wearily during the lame duck and wanting to limit potentially the number of things that get passed to only the essentials,” Kovacevich told The Hill. 

Chamber of Progress names Amazon, Apple, Google and Meta among its corporate partners. All four companies are targeted by Klobuchar and Grassley’s antitrust bill. 

For example, the bill would aim to bar Amazon from placing its own products at the top of results on its site, or to keep Google from highlighting its own services in its search function. 

Chamber of Progress, which describes itself as left of center, has argued the bill could hinder content moderation. 

Kovacevich said lingering concerns among Democrats pose another hurdle for the bill to pass in the lame duck period. 

Similarly to how the bill has garnered some unlikely allies in support, it is also facing some opposition on the left. In particular, California lawmakers in both the House and Senate, on both sides of the aisle, have raised concerns about the bills, which largely target companies based in their home states. 

Additionally, four Democratic senators, Brian Schatz (Hawaii), Ron Wyden (Ore.), Ben Ray Luján (N.M.) and Tammy Baldwin (Wis.), sent a letter to Klobuchar in June raising concerns similar to those expressed by the Chamber of Congress about the bill potentially leading to more harmful content online.

“Senator Klobuchar has never resolved the concerns of other Democrats on content moderation. So it’s not as if they’ve cleared off any of the substantive objections from other Democrats,” Kovacevich said. 

Asked whether Wyden’s issues had been mitigated, Wyden spokesperson Keith Chu, said in an email, “Our office has had productive conversations, productive conversations, but has not yet seen a new version of the bill that addresses Sen. Wyden’s concerns.”

“Congress has the opportunity to take on anticompetitive practices by tech companies without making it harder to fight harmful content,” Chu said. 

Klobuchar and other supporters of the bill have previously pushed back on the accusations that the bill pose content moderation concerns. Haworth and Morgan Harper, director of policy and advocacy at the American Economic Liberties Project, called the argument over content moderation a red herring. 

“We don’t want bad content, but we need to focus on the business model, which is really the root cause of a lot of these issues,” Harper said. 

Although time is ticking, Haworth said she sees a couple of options for the bill to pass in the Senate. One would be hotlining, or trying to pass the legislation through with little or no floor debate. Another would be to add it into an omnibus bill to fund the government, she said.

With the election, mostly, out of the way, the idea of antitrust bills as “potentially sticky issues politically has just gone away,” she said. 

The bill may also get a bump from the Biden administration. The White House is planning to make a post-election push in favor of antitrust legislation targeting tech giants after the midterms, Bloomberg reported last week. 

Harper said if antitrust bills are not passed this year, she thinks there is hope for them in the next Congress, too. 

“There’s really no choice. I mean, there’s so many issues that are stemming from the problems with big tech that I think people from both parties are feeling a tremendous amount of pressure to get things done to address it,” Harper said.