A bipartisan bill intended to help local newsrooms bargain for higher payouts from online news distributors failed to make it out of the Senate Judiciary Committee on Thursday morning.
Sen. Ted Cruz successfully introduced a contentious amendment to the Journalism Competition and Preservation Act that subsequently split the already-tenuous bipartisan coalition. As a result, Sen. Amy Klobuchar asked to hold the legislation for a future committee meeting, explaining “the agreement we had was blown up.”
Introduced by Klobuchar in March 2021, the JCPA brought together an unusual cohort of co-sponsors that included Republican Sens. John Kennedy, Rand Paul and Lindsey Graham alongside Democratic Sens. Cory Booker, Dianne Feinstein and Richard Blumenthal.
The bill attempted to create a temporary antitrust carveout that would allow small media organizations to collectively bargain for advertising rates against Big Tech companies. The carveout would last eight years, and it would only apply to companies with fewer than 1,500 full-time employees. If the two sides couldn't negotiate a deal in good faith, the media cohort could force Big Tech firms into arbitration.
Media conglomerates that acquired dozens of local news organizations would still be able to bargain under the exemption, which became a contentious issue. Sen. Klobuchar said she preferred a version of the bill that didn’t place any restrictions on the size of a newsroom, such that it would include even the New York Times and Washington Post, both of which were excluded under the current draft. Several conservative senators expressed concerns that the antitrust carveout would allow media organizations to exclude right-leaning media organizations from negotiations.
“These self-appointed mainstream left-wing media cartels are allowed to exclude based on the usual, totally subjective factors they always do, such as trustworthiness, fake news, extremism, misinformation, hate speech, conspiracy, correction policy, expertise, authoritativeness, etc,” Sen. Mike Lee said in the committee meeting.
Lee said he didn’t intend to vote for the bill, in part because of the way it skewed media incentives. “This version of the JCPA would inextricably link the financial incentives of Big Tech and the news industry by requiring tech platforms to share their monopoly rents with news publishers,” Lee said. This dynamic would incentivize news publishers to cover up and defend Big Tech rather than hold it accountable, he said.
Cruz’s amendment revoked antitrust protections if the news organizations discussed content moderation in negotiations. The amendment passed along party lines by a single-vote margin.
Klobuchar retorted by telling Cruz the JCPA already included provisions that ensured content-neutral negotiations; tech platforms would only be forced to pay for content they were already accessing.
“Since news outlets depend on the antitrust exemption — other covered platforms do not — the platforms could then raise content moderation at the first opportunity and attempt to avoid the joint negotiations,” Klobuchar said.
Sen. Klobuchar told POLITICO she’s still committed to passing a bipartisan bill to protect local journalism. Still, given the failed committee vote this morning, the legislation faces even longer odds to pass. Cruz said several times that he had a hard time seeing how it would pass on the floor, even if it made it through the committee.
The stalled negotiations show the fragility of any bipartisan efforts to rein in Big Tech. The JCPA had a unique set of issues, however, and even organizations typically critical of Big Tech found flaws in its approach. The EFF, for instance, published a response to the JCPA in June that said it would allow “large corporations and investment vehicles that dominate online journalism” to “reap the rewards of buying up, laying off, and click-baiting these newsrooms.”
Even as this bipartisan coalition dissolved, some of the senators maintained an optimistic note on antitrust efforts overall. Sen. Josh Hawley, for instance, commended Sen. Klobuchar for her work on the American Innovation and Choice Online Act, though he said he wouldn’t vote for her proposal this time around.
Correction: This story has been updated to correct Senator Josh Hawley's name. This story was updated Sept. 8, 2022.