By early this year, the Senate Judiciary Committee had made significant progress toward passage of two major pieces of antitrust legislation. The American Innovation and Choice Online Act and Open App Markets Act, which promise to crack down on Big Tech, both had the public backing of five Democrats and four Republicans on the panel, within striking distance of the minimum 11 needed to move the bills to the Senate floor.
Still, lawmakers on both sides of the aisle were not relishing a fight with a massive industry and were privately and publicly expressing serious concerns, leaving the outcome of the two votes in doubt. Given the popularity of the legislation, though — or more accurately, the unpopularity of Big Tech — Judiciary Committee Chair Dick Durbin, D-Ill., calculated that opposition would wilt in the light of day. Forced to publicly choose, how many senators would side with Big Tech over the public?
Both bills passed the committee in landslides. In January, the American Innovation and Choice Online Act advanced in a 16-6 vote, with every Democrat and five Republicans — Sens. Chuck Grassley of Iowa, Lindsey Graham of South Carolina, Ted Cruz of Texas, Josh Hawley of Missouri, and John Kennedy of Louisiana — backing it. Then a few weeks later in February, the Senate Judiciary Committee passed the Open App Markets Act in a 20-2 vote, with only Sens. John Cornyn, R-Texas, and Thom Tillis, R-N.C., opposing it.
Asked by The Intercept how he managed to move the first bill through committee despite the lack of firm commitments of support, Durbin said that opposition “melted” as Sen. Amy Klobuchar, D-Minn., the bill’s sponsor, whipped the committee members ahead of the vote. “Sen. Klobuchar worked overtime on this bipartisan bill, and a lot of the opposition to it melted, melted away,” he said.
Neither piece of legislation is publicly supported by a majority of senators, having just 12 and 10 co-sponsors, respectively. But the Durbin strategy offers a clear path to passage: Put the bill on the floor, and dare senators to oppose it. “Sen. Schumer supports the Judiciary Committee passed legislation that promotes small businesses and innovation. He is working closely with Senator Klobuchar and other Democratic and Republican members to get the necessary votes to pass it in the Senate,” a Schumer spokesperson said in an email.
A floor vote would likely be a blowout for Big Tech; the companies’ best chance to stop the legislation is to keep it off the Senate floor, and Majority Leader Chuck Schumer, D-N.Y., has told advocates of the bills that they won’t get a vote until they have commitments from 60 senators, as first reported by Politico Pro. Getting those commitments, with no need for a senator to go on record, is leagues harder than forcing them to take a position on the floor.
Both bills have Big Tech reeling. The American Innovation and Choice Online Act aims to prevent the largest online platforms like Google and Amazon from favoring their own products and services against their competitors. The Open App Markets Act aims to stop Apple and Google from granting preferential treatment to their own products in the App Store and Google Play, respectively.
Schumer has family ties to Big Tech. One of his daughters is a lobbyist for Amazon, and the other works at Facebook, the New York Post reported in January. Angelo Roefero, a spokesman for Schumer, denied the idea that his family connections would have any impact on the antitrust bills, telling the news outlet: “Sen. Schumer is championing these issues both legislatively and with his appointments to federal agencies. He will fight for action and success that delivers a fairer and more innovative playing field for all.”
Among Democrats on the Judiciary Committee, Sens. Dianne Feinstein and Alex Padilla — who represent California, home to many Big Tech headquarters — Delaware Sen. Chris Coons, and Vermont Sen. Patrick Leahy all expressed concerns about at least one of the bills. None have co-sponsored the measures, but in a sign of what could be to come if Schumer moves them to the floor, they ultimately supported them in committee.
Big Tech firms and their proxies in Washington, D.C., have taken advantage of the waiting time to lobby against the bills. According to The Hill, the American Edge Project, an advocacy group backed by Facebook parent company Meta and lobbying groups funded by Amazon and Google, has launched a seven-figure advertising campaign against the American Innovation and Choice Online Act. A new video uploaded to YouTube on April 12 features retired Gen. Joseph Dunford, former chair of the Joint Chiefs of Staff, and other former high-ranking national security officials warning about the need to “strengthen American technology” amid threats from Russia and China.
Update: April 19, 2022
The story and headline were updated with a comment from a spokesperson for Sen. Schumer.