Sponsors Optimistic as Self-Preferencing Big Tech Bill Heads to Markup

Sponsors of a bill that would ban Big Tech platforms from self-preferencing their products are optimistic about passage, but two Republican holdouts shared reservations in interviews last week. The American Innovation and Choice Online Act (S-2992) is set for markup Thursday after being held over one week. The bill would bar dominant platforms from acting to prevent rival products from competing on their platforms.

“You have a lot of opposition” from Republicans and Democrats against Big Tech, said ranking member Chuck Grassley, R-Iowa, the top Republican sponsor: “We actually have legislation, where all we’ve been doing for the last two or three years is talking.” Sen. Josh Hawley, R-Mo., sees the bill getting to the floor: “It’s in good shape in the Judiciary Committee. I imagine there will be tweaks, but [next week’s markup] is a good step forward.”

Sen. John Cornyn, R-Texas, hasn’t studied the text, but he raised concerns about Congress moving away from antitrust law’s consumer welfare standard: “I’m not sure antitrust is the best tool for getting at what we want to do, which is try to deal with the Big Tech companies, the censoring in particular, as well as the consolidation, purchasing of smaller startup companies that could provide some competition.”

Sen. Thom Tillis, R-N.C., said he doesn’t have a problem with the underlying bill, but his staff is considering amendments. Tillis said they may not seek a vote on the amendments but rather a commitment to continue tailoring the legislation. “It may be tailored differently, packaged differently,” said Sen. Cynthia Lummis, Wyo., one of the initial Republican sponsors. “It serves as an important starting place for this really important debate.”

Senate Intelligence Committee Chair Mark Warner, D-Va., an initial co-sponsor, said he looks forward to the markup process: “The idea that we’re starting to work on these Big Tech issues, as opposed to just” proposing legislation “is a great step.” He noted entities have approached him with concerns: “That’s what the whole sausage-making process is all about. What’s not acceptable is the status quo.”

“I don’t know if it’s ready to be signed into law, but we’re going to be moving ahead,” said Sen. Mazie Hirono, D-Hawaii. Klobuchar has done a good job getting “broad, bipartisan” support from a wide range of perspectives, Hirono said. The legislation will be the subject of a “lot of debate and discussion,” said Cornyn.

Chairman Dick Durbin, D-Ill., at markup last week sought patience from Sen. John Kennedy, R-La., who expressed frustration over Congress’ lack of concrete action against Big Tech. Kennedy is a sponsor of the Klobuchar-Grassley bill. “I don’t want to step on any news that will be issued after this meeting, but buckle your seatbelt,” said Durbin (see 2201130039). “This committee is going to be taking some forays into the field you just mentioned.” The House Judiciary Committee passed the companion version of the bill in June (see 2106240071).

The Computer and Communications Industry Association and NetChoice criticized the committee for not holding a legislative hearing on the bill before markup. “If Senators believe the bill is in the best interest of the American people, it need not be the subject of another rush job,” CCIA Vice President-Public Policy Arthur Sidney wrote Thursday.