The industry, and a couple of nervous Democrats, want to keep the legislation forever off the Senate calendar. Chuck Schumer is the key decision-maker.
Rounding the turn of Memorial Day brings summer to Washington, and in an election year that’s typically the tail end of legislative season. The next couple of months before the August recess represent one last chance to fill out the pre-election résumé for Democrats, and so far, that résumé fits on one page.
Joe Manchin has been saying he’s serious about a reconciliation package for months now, with little substance behind it. After Uvalde, there’s renewed interest in finding the least objectionable words that can possibly be called a gun safety bill, and it’ll take trudging through hell and back to get there. An industrial policy and competitiveness bill remains in the limbo of a conference committee, with continued major differences on the trade chapter.
One of the only other promising legislative avenues, where there really is a large bipartisan majority available, is a suite of bills that crack down on tech platform dominance. That path doesn’t rely upon the magnanimous allowances of Manchin, or an unprecedented shift among gun-rights Republicans, or a suddenly narrowing gulf between the House and Senate. It mainly needs to be brought to the Senate floor, something Senate Majority Leader Chuck Schumer (D-NY) reportedly promised a week ago.
Since then, there’s been an alleged revolt from unnamed Senate Democrats who, according to the reporting, are concerned with the impact of passing tech antitrust bills for their re-election hopes. The chiefs of staff for Sens. Maggie Hassan (D-NH), who’s in a tight race this year, and Michael Bennet (D-CO), who is likely not, objected to making the bills a priority, the anonymous secondary sources claim.
Let’s be very clear about what that means.
It is inconceivable that anyone reaching a voting booth in November would spurn a Senate Democrat because of tech legislation. The American Innovation and Choice Online Act, from Sens. Amy Klobuchar (D-MN) and Chuck Grassley (R-IA), would prohibit platforms from self-preferencing their own products over rivals in a way that would “materially harm competition.” This could stop Amazon or Google from putting links to their own products at the top of product searches. It could also block tying third-party sellers’ access to Amazon’s “buy box” to their having to use the company’s logistics services, or stop Amazon from using private data to create their own knockoff products to muscle out others’ marketplace sellers. A new version of this bill was just introduced last Thursday, responding to member concerns.
A second bill, the Open App Markets Act from Sens. Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN), would stop Apple and Google from using their duopoly over cellphones as a tollbooth, which they do by requiring app companies to give them a substantial portion of revenues from all in-app purchases. There’s a third bill that would block court-shopping in antitrust cases that will likely be included in any package. Republican Sen. Mike Lee (R-UT) recently introduced a bill that would break up Google and Facebook’s online advertising businesses, though that’s a bit less likely for this round.
It is inconceivable that anyone reaching a voting booth in November would spurn a Senate Democrat because of tech legislation.
Who is the non–Big Tech employee that will be inconsolable after hearing that their senator voted for one of these bills? It’s a ridiculous notion, even if you didn’t know about the extremely broad polling support for taking such actions, including among voters tested in Hassan’s state of New Hampshire. National elections do not turn on the fate of technical corporate market structuring bills.
What Hassan and Bennet’s staffers might say, if you engaged them privately, is that they’re concerned Google or Apple or Facebook or Amazon would use their prodigious piles of money to bombard their bosses with attack ads. These ads won’t say that the senators voted to increase options online or tear down mobile app gatekeepers; they won’t mention those bills at all. Instead, they’ll focus on inflation or migrant crossings or some other issue to savage the intended target.
There’s so much money sloshing around elections—$5.2 billion was spent in 2018, and there will likely be more this year—that whatever attacks Big Tech musters up, if they even go through with it, would mostly blend in with the noise. But as usual in Washington, timidity is the default setting, logic notwithstanding. It’s a form of blackmail, where corporations threaten a politician’s job security if they do anything to diminish their balance sheets.
If Hassan or Bennet wanted to avoid attacks, they could always vote against the bills. But they know that would be much worse for them, because their constituents would pick up on their decision to be a human shield for the richest companies in the world. A record speaks much louder than a 30-second attack ad. And the politicians know this; that’s why the Klobuchar-Grassley bill got broad support in committee, and the app market bill was almost unanimous.
So the move for a Democratic squish is to prevent a vote. That way, nobody will have to know about their tacit deal to not anger Big Tech. It’s the kind of de facto filibuster we don’t hear much about, a filibuster that happens before anything ever gets to the Senate floor. As Dan Geldon, the former chief of staff to Sen. Elizabeth Warren (D-MA), told the Prospect, “Democrats in Congress have been looking at this issue for over a decade and keep kicking the can down the road because they don’t want to have to choose publicly between Big Tech companies and everyone else.”
The barely concealed astroturf campaigns against the bills are so half-hearted—including enlisting the testimony of “members” who didn’t know they were being enlisted—that it seems that Big Tech knows these bills are unstoppable, provided they get a vote. These bills won’t lead platforms to stop providing services or threaten national security or violate due process; they’ll just stop these wildly powerful companies from dealing unfairly with business partners. To forestall such horrors, he Big Four tech firms spent nearly $16 million on lobbying just in the first quarter of this year, and it’s incredible that so much cash doesn’t buy you any better arguments.
In fact, we know precisely that the platforms’ claims are bogus. Google recently announced that Spotify customers can use an alternative payment method in the streaming giant’s app. If you’re big enough, Google will cut you a deal, and all the concerns about privacy and security and functionality melt away.
Hassan and Bennet’s ally is the Senate calendar. They just have to raise objections for a couple more months before everyone goes home to campaign. A new Congress may not have the same interest, and presidential cycles don’t make for fertile legislative advances anyway.
Schumer holds the key to ending this foot-dragging. “If there is a vote, it will pass, and there will finally be some accountability,” Geldon said. Recent experience suggests strongly that he’s right. The choice is simple: call the vote and end the blockade propping up the Big Tech monopoly, or keep pretending in speeches that you care when your actions show otherwise.
By August, we’ll know which course Schumer chose.
Published by The American Prospect.
