Illustration: Shoshana Gordon/Axios
A provision that would restrict states from passing their own AI regulations faces bipartisan opposition and parliamentary problems as Congress continues fighting over the reconciliation bill.
Why it matters: The bipartisan pushback indicates that hamstringing states on AI may not work, despite a consensus that federal rules would be better.
State of play: Sen. Ted Cruz is hoping that his budget play — holding up states' broadband equity funds from the BEAD program unless they agree not to regulate AI — survives the Senate parliamentarian, who determines whether provisions adhere to the Byrd Rule.
What they're saying: "I'm hopeful that everything that was reported out of committee will remain in the bill," Cruz told reporters on Capitol Hill Tuesday, and that he'd speak to the parliamentarian "later this week."
- "We will go through the process and not litigate it in the press. This is drafted as budgetary language on the BEAD program, and it is integral to those federal expenditures being effectual," he said.
- Sen. Maria Cantwell told reporters on a call on Wednesday that arguments against the measure will be made before the parliamentarian on Thursday.
- "We've certainly let Sen. Cruz and his team know we don't support the language," Cantwell said. "A lot of people were just caught by surprise."
The other side: Sens. Marsha Blackburn and Cantwell — alongside Washington state attorney general Nick Brown, a Democrat, and Tennessee state AG Jonathan Skrmetti, a Republican — pushed back against the provision Wednesday. Both states have passed their own AI laws.
- "We should be fighting to protect consumers, not enabling AI theft," Cantwell said on the call with reporters. "We have lots of work to do here in Congress to get AI right, and we should be given a chance to do that."
- "This is not the type of thing we put in reconciliation bills," Blackburn said on the call. "We do not need a moratorium that would prohibit our states from stepping up."
The big picture: For over a decade, Congress has been trying to pass a comprehensive federal privacy bill, and has failed.
- Now, states are pushing forward on AI, having developed a playbook for how to pass tech laws, and Congress wants to put an end to it.
- "I can't imagine that it fits into the contours of reconciliation. It's clearly policy. It's also nuts," Sen. Brian Schatz told Axios on Tuesday.
- "It'd be one thing if we were doing a thing and pre-empting other things, but this legislature has not shown an ability to make laws in this area, so failing that, we should let states take action."
What's next: The Senate parliamentarian will decide whether the provision complies with the chamber's reconciliation rules.
Editor's note: This story has been updated to reflect that Sen. Maria Cantwell's office told Axios after publication that the arguments will be on Thursday.
