Republicans should wait to regulate Big Tech

A coalition of lawmakers and advocacy groups is making its final push to pass antitrust legislation targeted at large tech platforms before the end of the year. But in the rush to rein in Big Tech, many conservatives have signed on to a bill that would do little to address their underlying concerns. Rather than helping Democrats pass flawed legislation, Republicans in Congress should hold off until next year when they are likely to be positioned to advance their own proposals.

Sen. Amy Klobuchar (D-Minn.), as part of a bipartisan coalition of legislators, recently held a press conference to urge Senate Majority Leader Chuck Schumer (D-N.Y.) to bring the American Innovation and Choice Online Act (AICOA) to the floor. AICOA, which passed the Senate Judiciary Committee with bipartisan support in January, is designed to prohibit Big Tech firms from engaging in a range of activities that preference their own products and services over those of third parties. Klobuchar released a revised version of the bill in May that aims to address lingering concerns about the scope and ambiguity of the legislation.

“As dominant digital platforms — some of the biggest companies our world has ever seen —increasingly give preference to their own products and services, we must put policies in place to ensure small businesses and entrepreneurs still have the opportunity to succeed in the digital marketplace,” Klobuchar argued. To do this, the bill grants the Federal Trade Commission (FTC), Department of Justice (DOJ), and state attorneys general new authority to levy heavy fines on covered platforms that preference their own products and services.

Ultimately, the bill empowers the FTC and DOJ to interpret AICOA, and these agencies will have every incentive to push for the broadest possible reading. Given that penalties are as high as 10 percent of total US revenues, companies will also take an extremely cautious approach to navigating the law’s ambiguity—erring on the side of shutting down services many consumers rely on.

While AICOA has bipartisan support, it also has bipartisan opposition, particularly around the ambiguity of whom it would apply to. Sens. Mike Lee (R-Utah) and Marsha Blackburn (R-Tenn.) have been vocal about their concerns with the bill, while Democratic senators such as Maggie Hassan (D-N.H.) and Michael Bennet (D-Colo.) have reportedly expressed serious reservations behind closed doors. As Sen. Lee stated during the January markup, “I believe this would lead to an untold number of unintended and unforeseen consequences, like harming many of the very same consumers that we are trying to protect.”

While Republicans have harsher views of Big Tech than Democrats, their underlying grievances are different. While Big Tech critics on the left tend to focus on economic concentration, social justice, and harmful content, the right is mainly concerned with free expression and censorship. As Sen. Chuck Grassley (R-Iowa)—the original Republican co-sponsor of AICOA—recently proclaimed on the Senate floor, “Big tech is silencing everyone they disagree with. … We must stop these companies from arbitrarily deciding what speech is acceptable for the country.” While separate legislation attempts to address these concerns, AICOA does little for conservative policy goals other than punishing its perceived political adversaries.

Much has been made of the supposed urgency of passing this bill in the coming months, but this only holds if one supports the current majority’s approach. It is unlikely that the underlying animosity towards Big Tech will have receded by the time the 118th Congress gavels in—likely under new leadership, at least in the House of Representatives. Given that AICOA fails to address Republicans’ underlying concerns with Big Tech, Senate Republicans should question whether it is wise to support Klobuchar and Schumer’s plans to rush this bill through. 

Instead of going along with the Democrats’ agenda, Republican lawmakers interested in reining in Big Tech should focus on refining their own ideas. For example, the Tougher Enforcement Against Monopolists (TEAM) Act from Lee could serve as a better starting point for lawmakers seeking to hold Big Tech accountable. This bill would codify and expand upon existing antitrust law to clarify enforcement authority over free online services. This legislative vehicle could also be used to address issues of privacy and free expression. 

The desire to extract a pound of flesh from Big Tech is no reason to pass unsound legislation that may backfire when consumers lose access to beloved products and services. If conservative lawmakers are serious about tackling issues they care most about—such as privacy, harm to children, and free expression—they would do well to run out the clock on AICOA as if it were Merrick Garland, and pivot to getting their own ideas ready for 2023.

Luke Hogg is policy manager at Lincoln Network.