Big Tech will pour money into swing Senate races once the plan is introduced in committee – that significantly makes it harder for swing state Democrat senators to win

It took a marathon, 29-hour session in June 2021 for the full House Judiciary Committee to approve a package of six bills aimed at regulating Big Tech. One would have barred Google, Amazon and Apple from steering or requiring customers to use their products and services rather than those of competitors. Another would have limited how Google and Facebook monetize the data they collect from users to earn revenue from advertisers. And another would have prevented tech giants from buying up nascent competitors, as Facebook did with Instagram and Google with Waze and YouTube. And if those efforts proved insufficient to prevent the tech giants from using their dominance in one market to win dominance in related markets, courts would be authorized to break them up.

Yet while each of those bills were approved by bipartisan majorities that spanned the ideological spectrum from Democrat Pramila Jayapal (Wash.) on the left to Republican Matt Gaetz (Fla.) on the right, Buck and Cicilline were already running into resistance.

In the weeks leading up to the committee markup, Democrats from northern California mounted a campaign to convince their San Francisco colleague, then-Speaker Nancy Pelosi, to delay the vote. Over the years, Pelosi had raised tens of millions of dollars from tech company executives. As significant, one of her closest friends in the House was Rep. Zoe Lofgren (Calif.), a senior Democrat on the Judiciary Committee whose district includes much of Silicon Valley. At Pelosi’s request, Cicilline said he agreed to delay the vote for a week and accepted several changes to the bills proposed by Lofgren and industry executives. But in the end, the speaker stuck by her promise to let the committee do its work — and the bills were approved over bitter objections from Lofgren and several of her California colleagues.

Republicans were also backing away. Whatever bipartisan good will there was when the investigation was launched in 2019 had evaporated as Democrats moved toward impeaching President Donald Trump later that year. To lead the defense of the president, Republicans had named Jim Jordan as ranking member on the House Judiciary Committee, a partisan pit bull who rarely passes up an opportunity to stoke the blood feud with Democrats. Jordan wasted no time in declaring that the only Republican interest in regulating Big Tech was to stop the censorship of conservative views and voices — an issue that Buck and Cicilline had deliberately sidestepped in crafting their bipartisan package. Over the ensuing months, Republicans who voted for the bills began to back off, telling Buck they had been warned they could lose their seats on the committee if they didn’t.

By the summer of 2021, Pelosi had also come to see the effort as a threat to the Democratic unity she considered vital to the more important task of pushing through the rest of President Biden’s ambitious agenda. Despite her earlier promise to bring the package before the full House, Pelosi and her lieutenants told Cicilline they doubted he and Buck could deliver the necessary Republican votes to make up for the Democrats from tech-heavy districts inclined to vote against it. They were also reluctant to make Democrats take politically risky votes — ones that could invite industry attack ads and hamper fundraising — until the package had been passed in some form by the Senate.

Suddenly, Cicilline and Buck were face to face with the paradox at the root of congressional dysfunction: On most issues, both parties prefer gridlock because both believe it reduces the risk of losing the next election.

One of the original motivations behind the Progressive era antitrust law was to prevent monopolists from using their outsize profits to buy political influence and turn a democracy into a plutocracy. More than a century later, that dynamic was very much in play as the Senate’s Judiciary Committee met early in 2022 to consider how far it would go in regulating Big Tech.

Leading the charge was Amy Klobuchar of Minnesota, the Democratic chair of the antitrust subcommittee who had just published a 600-page book (including 200 pages of footnotes) on this history of antitrust. Klobuchar had recruited to the cause the committee’s ranking Republican, Charles E. Grassley of Iowa, neither a lawyer nor, at age 88, much of a techie, but who channels the prairie populist fear of corporate power. Other co-sponsors ranged from progressive Democrats such as Richard Blumenthal (Conn.) and Cory Booker (N.J.) to hard-right Republicans such as Mike Lee (Utah), Josh Hawley (Mo.) and Ted Cruz (Tex.). As in the House, their reasons for taking on Big Tech rarely overlapped.

In the months leading up to the committee vote, the industry had deployed a small army of lobbyists and industry-funded trade associations and think tanks to derail the antitrust bills in the Senate. Early on, Klobuchar and Grassley agreed to set aside the most controversial of the House bills authorizing judges to break up companies if their self-dealing proved unavoidable. Also set aside was the bill preventing firms from buying start-ups that might one day challenge their dominance. Instead of outright prohibition of certain business practices, regulators and courts would have to show that competitive harms outweighed consumer benefits. The right of customers and competitors to file private antitrust suits was eliminated.

Given the amount of money at stake, however, it soon became clear that no amount of compromise was ever going to satisfy the tech firms, whose lobbyists redoubled their efforts to sow seeds of doubt in the minds of senators who had come out in favor of the bills.

Senators with an interest in privacy and security, for example, received warnings from the likes of James R. Clapper, the former director of national intelligence, and Leon E. Panetta, a former defense secretary, that allowing users to download apps from unapproved sites would make phones and computers vulnerable to hackers and cyberattacks.

Senators who worried about economic competitiveness were pitched on the idea that restraining the growth and profits of the world’s most successful companies would disrupt the innovative ecosystem, undermine patent protections and jeopardize America’s tech dominance.

Conservative Republicans were warned about the broad new powers that would be handed over to liberal-leaning government bureaucrats to micromanage a rapidly changing industry, while progressive Democrats were warned that social media networks and search engines would lose the ability to remove dangerous or offensive content or block disinformation campaigns by right-wing conspiracists and foreign adversaries.

And all senators were made to understand there would be an avalanche of voter backlash once millions of consumers were scared into believing they might lose access to Prime, Google Maps and the Apple app store.

The industry talking points ranged from badly exaggerated to utterly specious, flagrantly mischaracterizing the proposals while ignoring the changes already made to accommodate industry complaints. What all these arguments had in common was that they rested on the premise that regulators and judges were incapable of figuring out whether a business practice would cause significant harm to competition — a premise undermined by more a century of antitrust enforcement. But in offering such arguments, the lobbyists were aware of the old K Street wisdom that those opposing legislation don’t have to prove they are right — all they need to do is create enough doubt to convince risk-averse legislators to put off a decision.

When the 22 members of the full Senate Judiciary Committee met to vote on the trimmed-down package in the first weeks of 2022, the result was tellingly ambiguous. While the two most significant bills were approved by lopsided bipartisan majorities, many of those voting in favor took pains to declare they still had serious concerns with the bills. To win their votes, Klobuchar had to promise to continue working with them on additional changes before the bills were brought to the Senate floor.

That’s not the way it’s supposed to work. Thirty years ago, a committee “markup” was the moment when committee members and staff would sit around a table, roll up their sleeves and work through the politics and the substance so that a sound and politically viable bill could be put before the other members of the Senate, who generally relied on their expertise and recommendations. But in today’s Senate that rarely happens.

One reason is that committees have become unwieldy. Previously, each senator served on only one major and one minor committee — a limitation that allowed them to develop a familiarity with issues, and with each other, and made it more likely that some consensus might be reached. But beginning in the 1990s, Senate leaders began doling out extra assignments to win support from members who saw the added assignments as a way to enhance their stature and raise campaign funds from a wider array of special interest groups. As a result, senators now typically serve on three and sometimes four committees, and any number of subcommittees, making it nearly impossible for them to sit through an entire hearing or a multiday markup, let alone develop much expertise or relationships with other members. The average committee now has a quarter of the entire 100-member Senate as members, with Finance and Commerce at 27 and Appropriations with 29. All of this has had the perverse effect of reducing the power and relevance of committees and the influence of individual members.

And so it was that the Senate Judiciary Committee came to advance major bills regulating one of the country’s most important industries without first coming to agreement on what exactly should be in them. Democrats on the committee were eager to be seen championing an issue of keen interest to young, progressive voters. Republicans were eager to be seen channeling right-wing anger over censorship. And few wanted to disappoint Klobuchar, who had invested much time and political capital in the issue and didn’t take well to being challenged. Absent a policy consensus, the easiest thing for all of them was to kick the can down the road and leave it for later — or, more likely, for party leaders — to make the tough decisions and compromises.

The TV ads began appearing in the spring of 2022 in states with contested Senate races. They were sponsored by front groups such as NetChoice, the America Edge Project, the App Security Project and the Chamber of Progress, along with more traditional business groups. They warned that Congress was about to “break the internet,” end “guaranteed two-day delivery,” prevent you from easily accessing your favorite apps and “make us less safe.” By one estimate, the companies spent $130 million for TV ads to turn the public against regulating Big Tech.

It would be hard to overstate the corrupting effect that such “dark money” has had on the legislative process. Now that the arms race for regulated and reported contributions has played out to a draw, the real competition is for the unlimited sums that billionaires and corporations can funnel into individual House or Senate races through “independent” nonprofits and super PACs that have no obligation to disclose the source of their funds. Significantly, much of that dark money is raised or funneled to campaigns by party leaders who have used it to enhance their own power — including the power to decide which legislation is put to a vote in the House and Senate.

No one doubts that Senate Majority Leader Charles E. Schumer (D-N.Y.) would have been eager to bring the Big Tech bills to the floor — and broker whatever deals were necessary to get them passed — if he had thought it would help Democrats retain their Senate majority in the 2022 election. But by May, there were reports that several Democratic senators in tight races — Maggie Hassan in New Hampshire was mentioned — had asked that any action be put off until after the November election to avoid making enemies of a tech industry willing to spend lavishly to support its friends and oppose its enemies.

Guest Opinion: Don’t overreach on anti-trust. Do this instead.

Other Democrats privately questioned the urgency of regulating Big Tech at a time when Biden was still struggling to enact major climate and health-care initiatives, and when the party was on the defensive on such issues as inflation and crime. And more than a few Democrats resented Klobuchar’s insinuations at a closed-door caucus lunch that those with concerns about her bills had allowed themselves to be bought and bullied by the industry.

Schumer channeled his caucus’s ambivalence. While reiterating support for the legislation in public, he continued to actively raise large sums from the industry, privately assuring donors that the bills still lacked the 60 votes to overcome a filibuster. It also did not go unremarked that one of his daughters was a registered lobbyist for Amazon while another worked for Facebook.