Can antitrust reform legislation get to 60 votes?

With the August recess underway, it is time to take stock of Congress’ remaining agenda. One big item that is still on Majority Leader Chuck Schumer’s (D-N.Y.) public to-do list is the American Innovation and Choice Online Act (AICOA). After promising a floor vote on the bill earlier this summer, the majority leader has shifted the deadline to later this fall. This delay raises the question of whether Senate leadership really intends to bring AICOA to a vote and, more importantly, whether it could pass through the Senate’s 60-vote threshold.

The American Innovation and Choice Online Act is the result of a years-long, bicameral push to reform antitrust law to rein in Big Tech firms. It would prohibit large online platforms from preferencing their own products and services over those of third parties and grant the Federal Trade Commission new authority to levy heavy fines for violation. Led by Sens. Amy Klobuchar (D-Minn.) and Chuck Grassley (R-Iowa), AICOA has bipartisan support in both chambers and passed the Senate Judiciary Committee earlier this year. But disagreement about what the bill does and what it should do have also resulted in bipartisan opposition.

The key difference of opinion about AICOA, split along party lines, centers around whether the bill would impact content moderation. One provision of AICOA would prohibit large online platforms from discriminating “in the application or enforcement of the terms of service.” Klobuchar maintains that this provision will not impact content moderation decisions by large online platforms. But this assurance is not enough for some Democrats who want platforms to counter misinformation through more stringent content moderation.

An open letter from Sens. Brian Schatz (D-Hawaii), Ron Wyden (D-Ore.), Ben Ray Luján (D-N.M.), and Tammy Baldwin (D-Wis.) expressed concern that this provision of AICOA would “hinder content moderation practices, such as the application of community guidelines and policies, which are used to remove hate speech and fight misinformation online.” The group proposed that Klobuchar amend the bill to clarify that AICOA would not inhibit the ability of platforms to moderate content in accordance with their community guidelines. Klobuchar reportedly rejected this amendment, maintaining that AICOA as drafted “is not focused on content” and will not impede content moderation. 

Meanwhile, Republicans in both the House and Senate believe that this provision of AICOA will promote free expression online by reining in Big Tech’s content moderation practices. They see the terms of service provision as an essential component of the law. For example, Grassley reportedly threatened to walk away from the bill should Klobuchar accept the Democrat’s amendment or make any other changes to clarify the content moderation issue. If Grassley were to abandon AICOA, the remaining Republicans would almost certainly follow suit.

This state of play puts Klobuchar between a rock and a hard place. She can either placate Democrats or Republicans, but not both. Passing AICOA will require a 60-vote majority. But it is unclear that such strong, bipartisan support exists, especially given the growing divide on the issue of content moderation. 

With Democrats expressing serious reservations both in public and in private, it is likely that Klobuchar would need to address the content moderation question to shore up Democratic support. Doing so might be enough to get 50 votes, but it would risk losing the Republican votes necessary to overcome the filibuster. This is probably why Klobuchar has thus far rebuffed Democrats’ amendments.

Klobuchar’s other option is to ignore her Democratic colleagues and consolidate Republican support. But this scenario also holds a fair amount of risk. It is unclear whether there are enough Republican votes to make up for the potential of losing some Democrat support.

Schumer surely understands this dynamic and sees the obstacles to garnering 60 votes. Forcing his party to take a tough vote only to see the bill fail on the floor would be the worst outcome politically for Democrats in a contentious election year. If there is even a slim chance that AICOA would not pass a floor vote, then Schumer would presumably not call the vote. 

There remains a vigorous debate about whether AICOA will solve either side’s concerns about content moderation. Unless there is a major political shift between now and the November elections, it appears improbable that Klobuchar will garner the 60 votes needed to pass AICOA. Instead of continuing to focus on AICOA, lawmakers on both sides of the aisle should look towards the next Congress and prepare for a continued debate over regulating Big Tech.

Luke Hogg is policy manager at Lincoln Network.