The Bipartisan Big Tech Antitrust Bill Falls Victim to Political Gridlock

Antitrust legislation targeting big tech once seemed imminent. Now the leading bill is in limbo. But first…

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• The FDIC issued letters to crypto exchange FTX and others over “false or misleading statements” 

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The big tech bill in a big quandary

A year ago, it was fashionable to say that Democrats and Republicans were aligned on only a single issue: the need to reign in the world’s largest technology platforms. Representatives from both parties teamed up to roast tech CEOs in high-profile public hearings, and the result was bipartisan legislation like the proposed American Innovation and Choice Online Act, co-sponsored by US Senators Amy Klobuchar, a Minnesota Democrat, and Chuck Grassley, a Republican from Iowa.

The AICOA targets tech companies with valuations of more than $550 billion, including Amazon.com Inc., Meta Platforms Inc., Alphabet Inc. and Apple Inc., and prevents them from punishing rivals to boost their own products and services. It the Senate Judiciary Committee in January and consideration by the full Senate appeared destined for this summer.

It didn’t happen, of course. The urgency of bills like the Inflation Reduction Act and CHIPs Act supplanted the antitrust legislation. At the same time, as my colleagues in Washington reported last week, political donations from lobbyists representing the tech industry have flooded into the coffers of power-brokers like Senate Majority Leader Chuck Schumer.

But while it’s tempting to blame surreptitious corporate influence for stymieing attempts to limit tech power, it’s largely questions around content moderation—and the flexibility of tech platforms to guard against misinformation and hate speech—that have stalled its progress.

The trouble for the bill started in June, when a group of 16 distinguished academics at the intersection of technology and the law wrote an open letter to Congress, pointing out that the bill—which prevents tech giants from discriminating against “similarly situated business users in a manner that would materially harm competition”— could be weaponized to sue tech companies for policing speech on their platforms. “We write to you today to express our deep concern that, as currently drafted, the American Innovation and Choice Online Act (AICOA) will lead to more hate speech, more disinformation, and more harassment online,” the professors wrote. This wasn’t purely a hypothetical fear: Republican officials like Texas Attorney General Ken Paxton have showed an eagerness to pursue big tech companies for penalizing right-wing sites.

The AICOA doesn’t address content moderation issues, but it didn’t matter. Four Democratic Senators also wrote to Klobuchar, asking to address parts of the bill that would hinder content moderation. Republicans, who tend to view Silicon Valley discrimination against conservative websites and voices as just as pernicious a problem as its discrimination against smaller rivals, suggested such a change would be a nonstarter.

It then got ugly. In a tweet, a hardcore proponent of the bill—Yelp’s senior vice president of public policy, Luther Lowe—tried to find sinister motives in the professors’ intent, accusing a lead author, Anupam Chander of Georgetown University, of failing to disclose previous funding by Google. (There was no evidence that Chander or the other professors were motivated by financial ties to tech firms.) “The attack on me was entirely in bad faith,” says Chander. “It wasn’t substantive. I made a substantive critique of the bill.”

All of this put Klobuchar, the bill’s primary sponsor, in a tenuous spot. To keep her fellow Democrats, she needs to show the bill wouldn’t weaken big tech’s content moderation effortsBut to ensnare enough Republican support to get the needed 60 votes, she must demonstrate that tech companies can’t bury content from Republicans or wipe social networks like Parler, Truth Social or Infowars off their app stores and cloud platforms.“This state of play puts Klobuchar between a rock and a hard place. She can either placate Democrats or Republicans, but not both,” wrote the Hill last week.

Klobuchar's office, at least, remains optimistic. “We have a strong bipartisan coalition in both the House and Senate pushing this bill forward, and the American people are on our side,” said a spokesperson for the senator. “Once this bill comes to the floor for a vote, we are confident it will pass.”

But the standoff suggests the bill might not even make it to the Senate floor, particularly in a messy election year. Georgetown’s Chander believes the AICOA was flawed to begin with and was the result, like most legislation today, of an awkward compromise. “The progressive proponents have made a deal with the devil and are essentially saying we accept more hate speech online, we accept more disinformation that is designed to promote the views of right-wing conservatives, in order to get the conservative support we need to get our antitrust goals realized,” he says.

If the bill does fade away, it would be an almost accidental victory for Silicon Valley—less the result of their lobbying and political influence than of deep divisions among political leaders and perhaps an ambivalence about big tech companies among the electorate. It would also suggest that the campaign to limit tech power was never as bipartisan as it once momentarily appeared.

The big story

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What else you need to know

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Developers working on the much-anticipated software upgrade of the Ethereum blockchain firmed up Sept. 15 as the likely official date of the so-called Merge

Join Bloomberg Live in London for the Bloomberg Technology Summiton Sept. 28 to see Europe’s business leaders, policy makers, entrepreneurs and investors explain how they’re adapting to this new environment—and discuss solution-based strategies.