The Democrats have a couple of supposed “anti-trust” bills making their way through Congress and they’re claiming that they have enough bipartisan support to get them through. One of these is The American Innovation and Choice Online Act (S.2992) that’s being pushed by Amy Klobuchar. (Read the bill here.) Conservatives like Sen. Ted Cruz and Sen. John Kennedy have been willing to play ball, at least voting the bill out of committee.
Right off the bat, we should remind you of one unbreakable rule when it comes to legislation in Congress these days. No matter what name they give it, the bill likely doesn’t do anything of the sort and will probably do the exact opposite. (For reference, see the Inflation Reduction Act.) That will likely turn out to be the case here.
Republicans in general tend to like to promote competition and are opposed to huge “trusts”, particularly in the tech sector. (Or at least they used to be, and many of them at least claim they still do today.) But when it comes to the Big Tech giants who run social media, it’s really not a question of shutting out the competition so much as it is the left’s control of these platforms and their ability to censor unapproved, insufficiently woke opinions. Klobuchar has been selling her bill to some Republicans by saying that it will reduce content moderation options so less shadowbanning and account deletion – primarily used against conservatives – will be possible.
The problem is that there are too many Democrats who will not allow that to happen. Count Mazie Hirono in that camp. They like to see conservative voices shut down and they know that Big Tech does their bidding in that regard. So Klobuchar is between a rock and a hard place. The final version of the bill, according to one analysis from the Congressional Research Service, may in fact do the exact opposite. It states, “Whether S. 2992 as written, would in fact prohibit certain forms of content moderation is unclear.”
This analysis from TechDirt hits some of the key points, more from the Democratic point of view.
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For a while now, as Democrats have insisted that the two main antitrust bills that have been able to scrape together bipartisan support won’t have any impact on content moderation, we keep pointing out that the only reason they have Republican support is because Republicans want it to impact content moderation. After all, Ted Cruz was practically gleeful when he talked about using this bill to “unleash the trial lawyers” to sue over moderation.
Earlier this week, we cheered on a proposal from four Democratic Senators, led by Brian Schatz, to add a tiny amendment to the AICOA bill to say that it can’t be used to create liability for content moderation. If, as Senator Amy Klobuchar and others supporting this bill (including my friends at EFF and Fight for the Future) are correct that this bill already cannot be abused to enable litigation over content moderation, this amendment shouldn’t be a problem. All it would be doing is clarifying that the bill doesn’t do exactly what those supporters say it shouldn’t be read to do.
If the primary reason that Republicans might support S.2992 is that it could put the brakes on social media platforms “moderating” conservative commentary out of existence but the bill is being engineered to prevent exactly that from happening, why would any Republican vote for it? If the current reading of the language is correct, not only would the bill not have any impact on content moderation, it could explicitly ban that type of impact. Of course, hoping that this message gets through to the GOP relies on them actually reading the final version of the bill. And we all know they’ll do that, right?
Could the CRS analysis be wrong? If the bill is amended, possibly. But it’s hard to see how that happens with only half of September left on the clock and Chuck Schumer determined to wrap up business by the end of the month, and with a bunch of Democrats demanding the bill allow more content moderation for them to support it. The bill needs 60 votes to beat the filibuster. If that happens thanks to the likes of Cruz, Kennedy and Hirono getting on board, it will only happen because someone got duped. And if it’s Schumer bringing the bill to the floor, it’s probably not going to be a very vocal member of his own party who lives for cable TV hits getting the raw end of the deal (that’s Hirono, to be clear).
By all rights, this bill should be dead in the water already. But the fact that it’s not means that someone will need to be riding herd over the final version and get the current GOP supporters to take a long hard look at it.
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