Jan 26, 2021 - Technology

How Dems could notch tech wins even with a dysfunctional Senate

Illustration of a hand holding a gavel that is about to slam down on a computer mouse.
Illustration: Aïda Amer/Axios

Tech policy may be one area where Democrats will be able to smash through the logjam forming around their razor-thin Senate margin and actually pass meaningful legislation.

The big picture: Many Democrats want to hit Big Tech with new antitrust laws, updates to Section 230, privacy legislation and more. The party may be united enough on such issues — and able to peel off GOP support — to pass laws around them even as the Senate's 50-50 party-line split and shifting priorities imperil other legislative possibilities.

Between the lines: "A lot of the things tech has been concerned about with Democrats taking the Senate were headed for movement anyway," said Josh Ackil, a tech lobbyist with Franklin Square Group. "The unclear path doesn’t mean these issues will die and go away; they will continue to be worked on."

What's new: In a letter to House Energy and Commerce Republicans obtained by Axios, Rep. Cathy McMorris Rodgers, the panel's top GOP lawmaker, outlines a “Big Tech Accountability Platform” and says her staff will explore working with Democrats on policy changes.

  • Some — like revisiting platforms' October 2020 decision to limit the reach of a questionably sourced New York Post story on Hunter Biden — will be nonstarters with Democrats.
  • But others closely mirror calls Democrats have made, such as exploring the power e-commerce giants exert in online marketplaces and pushing tech platforms to be more transparent and potentially legally answerable when it comes to moderation decisions.

Context: Democrats should theoretically be able to run the agenda in Washington now that they hold the House, the White House and — through Vice President Kamala Harris — a tie-breaking vote that should let them control what moves through a divided Senate.

  • But there are growing signs that the Senate is slipping into gridlock anyway, with Democrats resisting ending the filibuster; diverting their attention to impeachment; and sidelined by a recent power-sharing fight with Republicans that delayed their taking of key committee gavels.

The intrigue: Cracking down on tech giants may become an increasingly appealing target to notch some wins if the Senate remains otherwise mired in dysfunction. Tech provisions can be bundled under budget legislation that only needs a simple majority to pass the Senate.

  • Ackil, a former Clinton White House official, told Axios he is concerned that Democrats may use high emotions around the Capitol riot to push for Section 230 reform.

Flashback: Republicans and Democrats have agreed on broad tech policy principles before, only for bipartisan legislation to run aground over a handful of sticking points. That's just what happened with would-be privacy legislation last Congress.

  • Now, GOP support is just a bonus, not a necessity.

Yes, but: Party and committee leaders can set the agenda, but the 50-50 split means each senator in the Democratic caucus will have veto power over a great deal of legislation.

  • Even if Democrats can win over a Republican or two on certain bills, the caucus will likely have to hold together to get legislation over the finish line.

Who to watch: Conservative Democrats like Sen. Joe Manchin are sure to be the center of much attention. In Manchin's case, his fellow Democrats may be able to court him with promises to meet priorities like securing more broadband dollars that can flow to his home state of West Virginia.

  • Meanwhile, Sen. Ron Wyden (D-Ore.), who co-authored Section 230, is highly likely to oppose any dramatic moves on the content liability law, potentially gumming up action.
Go deeper