OOn the surface, it appears that the battle to curb Big Tech is moving toward victory in Washington. A bipartisan bill to curb the power of dominant tech platforms like Facebook, Google, Apple, and Amazon is poised to pass Congress, one of the bill’s chief sponsors, Rep. Ken Buck, tells TIME.
One of the most prominent voices in the GOP pushing for antitrust reform, the Colorado Republican says that the bill is nearly ready to be put up for floor voting. He expects the measure to make it to President Joe Biden’s desk by the end of the summer. “We’ve worked out language that I think is just about complete on it,” says Buck, the ranking member of the House Antitrust Subcommittee. “I anticipate that by the August recess, we will have passed that from both chambers.”
Beneath the veneer of progress, however, powerful forces are at work—and success for anti-monopoly lawmakers is far from guaranteed, according to multiple sources familiar with the matter.
The opposition of the California delegation which largely represents Silicon Valley is one obstacle. Both House leaders, Speaker Nancy Pelosi and Minority Leader Kevin McCarthy, are also from the state, which boasts the world’s fifth largest economy, driven largely by the tech sector. The multimillion-dollar lobbying campaign by tech companies to intimidate lawmakers from reducing their market power is another challenge. It is difficult to get votes in favor of the bill because the Congress at the moment is one of the most senior in American history. Many of its members are elderly and struggle with the technology implications. Some of these members still have flip phones. Lastly, there’s Chuck Schumer, who publicly supports the bill, but who sources worry may be playing into the tech companies’ strategy of running out the clock.
If the legislation doesn’t pass before August 8, when Congress breaks for a month, there’s very little chance it will pass in the months before the midterms—and if the balance of power changes in Washington after the November elections, there’s no telling whether there will be another opportunity like this for lawmakers take on corporate monopolies.
Stopping mega platforms of self-dealing
In the near term, it is all about one possible law. The American Innovation and Choice Online Act would prevent platforms like Amazon and Google giving preference to their services over their rivals. Both the House and Senate Judiciary Committees have already passed the bill. In March, the Department of Justice endorsed the legislation, marking the Biden administration’s full backing of the measure.
That has only given more momentum to the bill’s champions, notably including Sen. Amy Klobuchar (D-MN) and Sen. Chuck Grassley (R-IA), who authored the Senate version. The legislation is “the first major bill on technology competition to advance in the Senate since the dawn of the Internet,” Klobuchar, chair of the Senate Antitrust Subcommittee, tells TIME. “I am working with my colleagues on both sides of the aisle to get this to a floor vote.”
The text has been refined by lawmakers in the last months to please on-the–fence colleagues. However, they have expressed doubts about the crackdown against tech companies. “There’s a lot of folks from California who are opposed,” Buck said. “On the Republican side, it’s a matter of talking to folks about the balance between the dangers that these monopolies pose versus having government involved in enforcing laws in the marketplace.”
Many legislators representing the Golden State are hostile to this effort. They include Republicans Tom McClintock and Darrell Issa, as well as Democrats Zoe Lofgren and Eric Swallwell. In a joint statement last summer, the group said a suite of antitrust bills targeting Big Tech, including AICO, would pose “harm to American consumers and the U.S. economy.” Meanwhile, there’s also a growing concern on Capitol Hill that the privacy of Americans’ data could be at risk and that the new law could make it harder for tech companies to tamp down on Russian disinformation.
Pelosi for her part has vowed to move legislation that would combat concentrated markets in tech and elsewhere. “We’re not going to ignore the consolidation that has happened and the concern that exists on both sides of the aisle,” she said. McCarthy has come out in favor of another one of Buck’s bills—which would strengthen the antitrust enforcement capabilities of state attorneys general—but he hasn’t yet weighed in on the AICO legislation. He did not reply to our request for comment.
Advocates are also concerned about the glittering office of Senator majority leader. Sources worry that Schumer is expressing rhetorical support for the measure but isn’t advocating for its passage with his signature alacrity.
“He’s saying to people like Klobuchar, ‘Hey, Amy, I love this. This is what I would like to see on the floor. Let’s go get 60 votes,’” says a source familiar with the process. “But then there’s a handful enough of senators who are either noncommittal or not engaged or just giving a poker face—so the bill never makes it to the floor.”
A member of Congress requested anonymity so that he could speak freely. He said it would be difficult to pass a tango among Schumer and Pelosi, which, according to the member, do not want to be first to put antitrust bills up for a vote in the full chamber.
“My understanding from Klobuchar is that Schumer has promised to get at least some of these bills through,” the lawmaker said. “But what’s much more interesting is that Pelosi and Schumer are sort of playing this off against each other: Well, you know, they should go first, then we’ll take them up. But that’s the tough part. Because that’s the Big Tech strategy—to run the clock out.”
The more cynical anxiety among some staffers and anti-monopoly activists stems from Schumer’s two daughters working at Facebook and Amazon respectively.
Schumer’s office flatly denies such theories. “Sen. Schumer supports the Judiciary Committee passed legislation that promotes small businesses and innovation,” a spokesperson for the majority leader tells TIME. “He is working closely with Sen. Klobuchar and other Democratic and Republican members to get the necessary votes to pass it in the Senate.”
The spokesperson also pointed to the senator’s track record of shepherding anti-monopoly nominees and Big Tech antagonists to fill some of the most powerful watchdog roles in the federal government, such as Lina Khan as chair of the Federal Trade Commission and Jonathan Kanter as head of the DOJ’s Antitrust Division. Alvaro Bedoya is expected to be confirmed by the Senate to join FTC.
This is your last chance to make a difference.
This legislation, the AICO legislation, may be the last chance for Congress to deal with the technology companies’ power before the campaign season gets underway. Republicans are overall less unified on the issue, and if they take back control of Capitol Hill as expected, the fate of legislation to strengthen the nation’s antitrust enforcement regime may hang in the balance.
The reason for hope lies in the underlying politics: all the rage on both sides of the aisle is against Big Tech—albeit for different reasons—and Democrats and Republicans may want to sell a deliverable to voters ahead of the midterms. The advocates of this bill claim that it could be popular with Americans. For example, the new law would allow Amazon to refuse to give preference for its products, which could help entrepreneurs and small businesses. In other words, the Seattle-based company couldn’t put its own goods on page one of the platform’s search engine and its competitors’ on page sixteen. Elizabeth Warren explained it to the 2020 campaign trail that it couldn’t act as an umpire while weighing in on its own team.
“For a lot of members of Congress, they want to be able to talk about what they’ve actually done to rein in tech about what they’ve done to help the small businesses in their districts, and this bill is good plank to stand on,” says Chris Pedigo, senior vice president at Digital Context Next, a trade association that represents digital content providers, which lobbied in favor of the bill.
Buck’s victory forecast comes in the wake of increased resistance from Silicon Valley. Amazon and Google also spent millions lobbying Congress to convince them that the bills would cause massive harm on American consumers. AICO, according to them, will mean that popular services like Google Maps, Amazon Prime and Amazon Prime are gone.
An ex-group of top national security officers has released a seven-figure advertisement urging legislators to abandon the bill. “We can’t allow our adversaries to win the tech race,” Frances Townsend, a homeland security adviser under former President George W. Bush, tells viewers in one video. “If our leaders don’t change course, American citizens and businesses will become more dependent on authoritarian regimes for our technology.” The campaign is being run by an advocacy group funded by Meta (formerly known as Facebook, Inc.) and a constellation of lobbying groups bankrolled by Google and Amazon.
Buck says that scare tactics could fail, and AICO will soon be law. “I do think that this bill has the best chance of passing before the August recess, before everybody really gets focused on elections,” says Buck. Of course, it is whip counts and votes that get bills into law, not predictions of victory—and as Washington insiders are acutely aware, nothing is done on Capitol Hill until it is done.
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