Strange alliances formed ahead of Thursday's vote to advance a key antitrust bill to the Senate floor, with frequent foes like Sens. Amy Klobuchar and Ted Cruz supporting the measure, and prominent Democrats including California Sen. Dianne Feinstein pushing back against it.
Ultimately the bill moved out of the Senate Judiciary Committee by a vote of 16-6 after a surprisingly speedy debate (at least, speedy for the Senate). Even some of the lawmakers who called for further changes agreed to move the bill forward — a sign that the itch to finally regulate Big Tech after years of congressional inaction is intensifying, even as the issue scrambles traditional party politics in a way that could threaten its final passage.
The bipartisan measure, which is led by Klobuchar and would ban self-preferencing by Big Tech platforms such as Amazon or Google, represents the most serious and far-reaching proposal to remake the mightiest tech businesses. The American Innovation and Choice Online Act prohibits online gatekeepers from "favoring their own products or services," and would largely prevent Google, for instance, from giving a boost to its own local search results over Yelp's. It has brought out an unusual coalition, uniting Democrats hoping to extend competition rules with Republicans who object to platforms’ treatment of conservative speech.
“We have a lot of support for this bill,” Klobuchar said early in the session.
On the other side, the bill’s opponents consisted largely of the usual suspects: Republicans who have been historically sympathetic to business leaders who themselves are loud opponents of the bill. Some other lawmakers, from both sides of the aisle, expressed concerns about the measure’s effect on issues like privacy.
Yet it was California Democrats, concerned about a measure that would target some of the biggest employers in their state, who exposed perhaps the biggest fissures.
“It’s specifically designed to target a small number of specific companies, most of which are headquartered in my home state,” Feinstein complained, saying that she had heard that some federal agencies might have concerns about the bill’s effect on national security. Some lawmakers have worried that provisions designed to stop Big Tech from hoarding data as a way to box out rivals could allow foreign companies to obtain useful information, or even that an assault on U.S. tech giants could give China a leg up.
Klobuchar later jumped in to defend her bill against her longtime colleague, calling Feinstein's allegation a “bold statement” that she believed was "not true.”
Despite her concerns, Feinstein ultimately voted to advance the bill, as did several other senators who said they wanted to see additional changes before final passage. Those included Democrats Patrick Leahy and Alex Padilla (the other senator from California), as well as Cruz and John Kennedy, both Republicans.
Cruz and Cook
During the hearing, Klobuchar said the bill was informed by extensive consultation and scholarship, answering concerns from lawmakers and the tech industry that the full committee had not held a hearing on the measure.
Big Tech companies and trade groups, including the powerful U.S. Chamber of Commerce, have lobbied furiously in opposition to the bill with a flurry of letters and public statements arguing that the bill did not have sufficient legislative hearing and that it posed a danger to privacy and popular services.
There’s been lobbying behind the scenes too: At one point during the hearing, Cruz said he’d spent 40 minutes on the phone with Tim Cook on Wednesday, during which the Apple CEO worried the bill would “erect obstacles to Apple giving consumers the ability to opt out of apps monitoring what they’re doing online,” Cruz said.
Apple has spent recent years feuding with Meta, and the conflict got particularly hot last year when Apple allowed users to opt out of Facebook and other apps' tracking on the iPhone.
Klobuchar and Chuck Grassley, the bill’s co-sponsor and the top Republican on the judiciary panel, successfully introduced changes that Klobuchar said would protect users’ ability to opt out of third-party data sharing and would ensure that firms could still offer popular add-on subscription services, such as Amazon Prime or Google Maps.
Apple didn’t respond to requests for comment on the conversation. Cruz ultimately voted to move the bill out of committee, despite calling Cook’s concerns reasonable.
‘Get to a yes’
While the bill is ostensibly about antitrust, Thursday’s debate also included familiar partisan debates about what the bill would mean for regulating speech online. Like several Republicans who spoke, Cruz urged the panel to do more to address conservative allegations that social media platforms silence right-wing speech. On the opposite end of the spectrum, Padilla, the California Democrat, said the measure would actually do too much to tip the scales away from content moderation because a provision within it could allow services like, say, Parler to argue that blocking them is anticompetitive.
“This provision can be a gift to bad actors seeking to prevent platforms from blocking business users that peddle hate speech or … election disinformation,” he said.
Several Republicans also worried that the bill gave too much power to the Federal Trade Commission and other agencies, and offered little opportunity for companies to argue that their conduct benefits consumers more than it hurts them — a common antitrust defense.
“I have questions about who’s covered by the law, what it permits and what’s going to happen in terms of enforcement,” said Republican Thom Tillis, who prepared dozens of amendments, though he didn’t bring them up for a vote and said he hoped “to work to get to a yes.”
Klobuchar originally introduced the bill last fall, after several months of work, many of which were devoted to modifying a proposal that grew out of the House’s 16-month investigation into Big Tech’s competitive practices.
Although the House proposal was also bipartisan, Klobuchar will still need a filibuster-proof majority to pass her version in the Senate, meaning she and her allies will need to spend more time at the negotiating table. The fact that Klobuchar’s bill has such broad and high-level support on both sides of the aisle has excited tech critics. Yet the complicated politics and conflicting calls for further changes signal that the bill still has to overcome the intense legislative inertia that has doomed many other efforts, even as time runs out in the current Congress.
“Nearly 40 years later, we are still here without a single piece of meaningful competition legislation addressing the massive economy that [the internet] has created,” Klobuchar said in her introduction. “This is our moment.”
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