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Senate Vote on Big Tech Antitrust Bill Unlikely Before Election, Key Players Say

8 minute read

A high-profile antitrust bill intended to curb the power of tech giants like Amazon and Google appears to have enough support to pass Congress but likely won’t be voted on before Election Day. Multiple sources familiar with the matter tell TIME they don’t expect Senate Majority Leader Chuck Schumer to bring up the American Innovation and Choice Online Act, known as AICO, for a floor vote before the November elections.

“Doubt it,” said Sen. Josh Hawley, Republican of Missouri and a co-sponsor of the legislation, when asked whether there would be a vote on the measure before the midterms. “I hope, but it doesn’t look like it to me.” A senior Democratic Senate aide likewise told TIME that there is “no chance” the Senate will vote on the bill before Congress breaks on Sept. 30, at which point most lawmakers turn their eyes to the campaign trail.

That’s not to say a Senate vote on the bill before the midterms is impossible. Only Schumer, as majority leader, controls the Senate floor, which is where AICO must first pass before Speaker Nancy Pelosi will allow the House to vote on it. But many of the bill’s fiercest champions have essentially given up hope that they will be able to send the legislation to President Joe Biden’s desk ahead of the congressional recess.

“It will be difficult to get it up in the next two weeks,” Sen. Chuck Grassley, Republican of Iowa, and one of AICO’s lead sponsors, told TIME, referring to the tight time frame when legislators will be mostly focused on passing a continuing resolution before Oct. 1 to avoid a government shutdown. After that, the chances of passing a bill before the election are slim to none.

If Congress doesn’t vote on the legislation by then, lawmakers could potentially take it up during the so-called lame-duck session that takes place in November and December. On Thursday, a bipartisan group of Senators working on a bill to protect the right to same-sex and interracial marriage announced that the vote on that would be pushed back until after the election, when more Republicans may be willing to support it.

Sen. Amy Klobuchar, Democrat of Minnesota and the author of AICO in the Senate, acknowledged in a statement to TIME the possibility that the bill may be taken up in the lame-duck session.

“Against all odds, we have passed a bill out of committee to take action to protect consumers and small businesses and put rules of the road in place for dominant tech platforms,” Klobuchar said. “We have a strong bipartisan coalition in both the House and Senate pushing this bill forward, and the American people are on our side. Sen. Schumer is committed to working with me for a vote, and whether this bill comes to the floor before or after the midterms, we will take action.”

The delay brings yet another obstacle in the continuing saga for Congress to rein in Big Tech’s monopoly power. The AICO legislation would prohibit the likes of Amazon and Google from prioritizing their own products on their platforms over competitors. It’s being held up along with a narrower companion bill, the Open App Markets Act, which would force Apple and Google to open up their app stores to rival marketplaces. Bipartisan majorities in both the House and Senate judiciary committees have already voted to send both of the bills for floor votes in their respective chambers. That’s led to months of waiting on Schumer to schedule a vote in the Senate.

Sources tell TIME that the House won’t act on AICO until the Senate does because Pelosi doesn’t want to needlessly put her caucus through what would be a difficult vote for some of her members, especially those in California. The maneuvering has been a source of frustration for some of the measure’s House champions, such as Rep. Ken Buck, Republican of Colorado, who is a lead sponsor of the bill. “Why don’t they bring it up in the House?” Buck told TIME. “Maybe Big Tech owns them. I have no idea. They point the finger at each other. It’s ridiculous. They pass legislation when they want to. Pelosi has had plenty of tough votes for her members.” The speaker’s office did not respond to a request for comment.

The main sponsors of the bill’s Senate version, Klobuchar and Grassley, both say it has more than enough votes to pass the upper chamber, which has 50 Democrats and 50 Republicans. Grassley, for his part, says there are more than 20 Senate Republicans prepared to vote for it. Most Senate Democrats are expected to vote for it as well. Yet Schumer, who says he supports the bill, has been noncommittal about when he will bring it to the floor.

While his office has suggested he intends to hold a vote on the measure, his reluctance has led some advocates to suspect he is playing into Big Tech’s strategy of running out the clock. In recent weeks, supporters of the bill, including privacy-focused tech companies like DuckDuckGo and Mozilla, have urged Congress to vote on the bill as soon as possible.

Sources familiar with the process say that Schumer delayed a vote on the antitrust legislation through the spring and summer to make sure Congress first could pass bills that would be most helpful to Democrats facing difficult election challenges. Indeed, Schumer surprised much of Washington last month when he managed to shepherd the Inflation Reduction Act to Biden’s desk. The historic bill aims to mitigate climate change, lower prescription drug costs, and raise taxes on some of the richest corporations. Then he helped to pass the CHIPS and Science Act to subsidize domestic semiconductor manufacturing and research, and the PACT Act to provide health care to military veterans exposed to toxic burn pits.

Now, Democratic operatives say he’s afraid to put his vulnerable members in the crosshairs of Big Tech months before an election, when those companies and their wealthy leaders can pour money into helping efforts to sink their bids for reelection.

Others speculate that the more than $120 million that the tech behemoths have spent campaigning against the bill—including through ubiquitous television and online ads that argue the bill will stifle innovation, harm consumers, and jeopardize cybersecurity—is paying dividends.

“Pressure from Big Tech,” Hawley said, when asked why he thinks Schumer won’t bring AICO up for a vote. “It’s just millions of dollars spent. Truthfully, I also think that Democrats have fallen in love with the power of Big Tech. It’s very useful to them. I think they kind of like it, so I think they don’t really want to get rid of it.”

Schumer’s office did not respond to a request for comment.

The majority leader’s stalling has drawn the ire of progressive activists who are eager for lawmakers to prevent the tech giants from abusing their gatekeeper status. Over Labor Day weekend, Fight for the Future, a liberal advocacy group, hired an airplane to fly a message over New York beaches that said, “Schumer: Help NY Workers, Not Big Tech!” That same group has for months been playing a John Oliver segment in support of the bill on repeat on a large screen outside of Schumer’s Brooklyn home.

Some lawmakers are skeptical the bill has the votes needed to pass, and suggest that that’s the real reason Schumer hasn’t called a vote. “I don’t think there will be a vote unless the authors are fairly certain that they have 60 votes,” Sen. John Kennedy, Republican of Louisiana, told TIME. “That’s pretty standard protocol for Sen. Schumer. He tells people, ‘You gotta demonstrate you have the votes before I commit to burning the floor time.’”

Yet earlier this summer, AICO’s authors said they had precisely that. “I think it’s very clear that we have the votes to pass both those bills in the House and in the Senate,” Rep. David Cicilline, Democrat of Rhode Island and the author of the House version, told TIME. “Grassley and Klobuchar have the votes,” a lobbyist pushing for the legislation previously told TIME. “Sen. Grassley has stated he has more than 20 Republican votes. He doesn’t get the whip count wrong.”

But whether the votes are there or not, some of the bill’s supporters are growing less optimistic that the bill will become law than they were earlier in the summer. While AICO certainly isn’t dead, those who are hungry for Congress to crack down on Big Tech are getting more nervous by the day.

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