Key Senate antitrust bill hangs in the balance

Sen. Amy Klobuchar (D-Minn.) is pushing for a summer vote on a key antitrust bill targeting tech giants, but updates to the language released last week may do little to quell concerns from Democrats teetering on support. 

Klobuchar and Sen. Chuck Grassley’s (R-Iowa) American Innovation and Choice Online Act advanced with bipartisan support out of the Judiciary Committee earlier this year, but the chances of it passing hinge on supporters gaining a large enough coalition. Even some Democrats who voted to advance the bill in January have expressed hesitation in supporting it on a floor vote, and more may back off amid a dwindling deadline ahead of competitive midterm races. 

Klobuchar, who chairs the Senate antitrust subcommittee, released revisions to the text late Wednesday night, before the Senate recessed for Memorial Day. She said she is excited about the “very bipartisan” bill’s chance of proceeding.  

“We’ve worked with a number of members and we are making progress,” Klobuchar told The Hill Thursday. 

The bill, like antitrust reform efforts in the House, is creating strange bedfellows, bringing together senators across the aisle who are split on most other issues.

The unlikely allies could give the bill a fair chance of passing in the evenly split 50-50 Senate if called for a vote. But hesitancy among some Democrats may dissuade leadership from putting it forward. 

“It’s really a Democrat question, because the question is will [Senate Majority Leader Charles] Schumer put it on the floor, which he hasn’t,” said Josh Hawley (R-Mo.), a co-sponsor of the bill. 

Klobuchar told Punchbowl News last week, before releasing the updated text, that Schumer said there will be a vote on the bill, which she is hoping to happen “in the next month.” 

But the lack of a set timeline signals “they don’t think they have the votes,” Hawley said. 

The bill aims to limit tech giants from giving preferential treatment to their own products. It defines such dominant online companies by user base and revenue, in a way that would likely apply to Amazon, Apple, Meta and Google. 

For example, if successful the legislation could bar Amazon from placing its own products at the top of results or keep Google from highlighting its own services in search. 

At least a handful of lawmakers who voted on the bill during the January markup, and even some co-sponsors, told The Hill on Thursday they had yet to review the revisions Klobuchar released late the night before. Among them were California Sens. Dianne Feinstein (D) and Alex Padilla (D), both of whom voted to advance the bill at the time but said they had reservations that could keep them from voting for it in a floor vote. 

During the committee markup in January, Feinstein and Padilla said they were concerned the bill targets specific companies that are mostly headquartered on their home turf. Other than Amazon, which is based in Washington state, the three dominant tech companies likely covered by the bill are based in California. 

Padilla also raised concerns about the legislation’s potential negative impacts on privacy and cybersecurity.

A Democratic aide told The Hill the revision process has been opaque, without a lot of engagement to address concerns raised by senators during the hearing. 

The aide said when Klobuchar released the revisions Wednesday night, it was the first time the aide had seen revisions since the January hearing. 

Adam Kovacevich, founder and CEO of the tech group Chamber of Progress, said the revisions seem to “primarily address complaints of Republicans and corporate lobbyists rather than the Democrats who Klobuchar needs to move this bill.” 

Kovacevich said the revisions create carve outs for banking and telecommunications companies, but failed to address concerns from Democrats on a provision that some are arguing would lead to content moderation issues for tech companies. 

Amazon, Apple, Meta and Google are all corporate partners of Chamber of Progress. 

The content moderation concerns stem from a provision in the bill that would make it illegal for a covered platform to “discriminate” in the enforcement of terms of services among “similarly situated business users in a matter that would materially harm competition.” 

Kovacevich, and others opposed to the language, argue it could lead to legal challenges over a company such as Apple or Google removing an app that violates its policies from their own app stores, potentially undermining their ability to moderate content.

But Evan Greer, a spokesperson with Fight for the Future, pushed back on these concerns, which she called an industry-led attack on the measure.

“Tech monopolies like Facebook and YouTube have a terrible track record on content moderation. These bills would make that situation better, not worse, by creating an environment where alternative platforms with better, more transparent, and more human rights centered moderation practices can meaningfully compete,” Greer said. 

Greer said tech groups are “grasping at straws” to find arguments to push back on the legislation. 

Beyond industry groups, though, some Democratic lawmakers have raised similar content moderation concerns, as has advocacy group Free Press.

Matt Wood, vice president of policy and general counsel at Free Press, said the issue remains in the revised legislation. 

Even though there is no private right of action, meaning a company would not be able to use the law to bring a case against a dominant platform, it could lead to attorneys general or a future Federal Trade Commission taking such a stance, Wood said.

Broadly, tech industry groups have also slammed the legislation over concerns it would raise national security issues or lead to the disbanding of services consumers enjoy, such as Amazon’s prime program. 

Klobuchar and other supporters have denied the attacks that the bill would lead to those outcomes.

Sacha Haworth, executive director of the Tech Oversight Project, said the revisions “definitely addressed” concerns raised by senators around security issues. 

“It was a good bill before and [it’s a] better bill today,” Haworth said. 

“There aren’t that many issues out there, especially not in this Congress, where you have high ranking Democrats [and] high ranking Republicans as sponsors of the bill. There aren’t that many issues out there that are like this, let alone drafted legislation ready to be voted on,” she said. “[I] wouldn’t think anyone would want to stake out a position in opposition to this issue.”

A poll conducted by Hart Research between May 18 and May 22 found voters in the battleground states of Arizona, Georgia, New Hampshire and Nevada support Senate efforts to rein in the power of tech companies. 

The poll found 76 percent of voters in those states said they favor the American Innovation and Choice Online Act. 

Eighty percent said they support the Open App Markets Act, another bill that advanced out of committee with a focus on regulating dominant app stores, according to the poll of 1,200 voters.