May 5, 2022 - Technology

Tech antitrust bills' big foe: the calendar

Illustration of a cursor in an hourglass.

Illustration: Aïda Amer/Axios

The clock is ticking down on Washington's bipartisan effort to alter how Big Tech does business by passing new antitrust laws.

Why it matters: The next couple of months will be do-or-die for backers of the tech antitrust bills. If lawmakers don't approve them ahead of Congress' August recess, insiders say the outlook is bleak as midterm elections loom.

  • High-profile issues like abortion rights, inflation and the war in Ukraine are filling up lawmakers' time.

What they're saying: "There's a natural timeline. Once the summer break happens, it's going to be harder to get people focused on big issues," Rep. David Cicilline (D-R.I.), who has led the House's tech antitrust efforts, told Axios.

  • "It's really urgent in my view," he said. He expects two bills that have already passed the Senate Judiciary Committee to move first.
  • Cicilline pointed to growing support for the efforts, including endorsements from the Department of Justice and the Commerce Department, editorials across the country, and Europe moving ahead with the Digital Markets Act as momentum-drivers: "Small businesses in Europe will have better protections than those in America... that can't be allowed to stand."

Cicilline's Republican counterpart, Rep. Ken Buck (R-Colo.), told Axios in a statement: "I’m confident we’ll get something done before the summer recess — there’s too much support in both chambers for any other outcome," Buck said.

State of play: Two bills received bipartisan support when they were approved by the Senate Judiciary Committee earlier this year, setting them up for possible floor votes.

  • The Senate's American Innovation and Choice Online Act would ban Big Tech companies from favoring their own services in an anticompetitive way, and is a companion to a similar House bill approved by the House Judiciary Committee as part of a marathon markup last summer.
  • The Open App Markets Act would ban app store operators like Apple and Google from requiring use of their own in-app payment systems. A House companion bill was introduced last year, but hasn't yet received a committee vote.

Yes, but: The Senate bills haven't advanced since early February, despite the urgency from sponsors for passage ahead of the summer recess. The Senate also turned its attention to filling a Supreme Court vacancy shortly after the committee advanced the bills.

  • "My bipartisan bill with Senator Grassley is the first major bill on technology competition to advance in the Senate since the dawn of the Internet," Sen. Amy Klobuchar (D-Minn.), who's spearheading Senate efforts, told Axios in an emailed statement. "I am working with my colleagues on both sides of the aisle to get this to a floor vote as soon as possible."
  • Klobuchar recently presented about her bills to the Democratic caucus seeking support.

The intrigue: Pressure is mounting on Democratic leadership, including Senate Majority Leader Chuck Schumer (D-N.Y.), to bring the bills to the floor.

  • “Sen. Schumer supports the Judiciary Committee-passed legislation that promotes small businesses and innovation," a spokesperson for his office told Axios. "He is working closely with Senator Klobuchar and other Democratic and Republican members to get the necessary votes to pass it in the Senate.”

The other side: Apple, Amazon, Meta and Google spent $15.85 million lobbying Congress in the first quarter of 2022, per lobbying disclosures. They have argued the antitrust bills would undermine national security, compromise user privacy and give China a leg up.

  • The Computer and Communications Industry Association, which gets funding from major tech companies, has been running commercials about how the Senate bills could "break" Amazon Prime.
  • The American Bar Association submitted comments to the Judiciary Committee, calling for changes to the self-preferencing bill and warning of "unpredicted and unintended consequences."

Between the lines: After Congress' August recess, lawmakers will turn their focus to campaigning ahead of the midterms and are unlikely to pass bipartisan legislation.

  • It's unknown how much support antitrust efforts will be able to muster if Republicans reclaim control of either or both houses. House Minority Leader Kevin McCarthy (R-Calif.) has not yet supported the bills. His office did not respond to a request for comment on whether that's changed.

Meanwhile, lawmakers are still working out the final version of a semiconductor-boosting competition bill that the industry views as essential and President Biden has urged Congress to pass.

Our thought bubble: Just passing a historically non-controversial bill benefitting a domestic manufacturing business that both parties agree is vital to national security has turned into a Herculean lift for this Congress. That's a sign of what the far more complex antitrust proposals are up against.

The bottom line: "There's a window of opportunity here, and we need to take advantage of it," Cicilline said.

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