Sen. Chuck Schumer Can Pass Landmark Antitrust Bills Right Now. Why Isn’t He?

Bipartisan backers of a trio of proposals to rein in the power of Big Tech and stiffen antitrust enforcement have a simple question for Senate Majority Leader Chuck Schumer (D-N.Y.): What’s the deal?

As this Congress’s final days tick away, Schumer has yet to deliver a promised vote on the legislation, prompting pressure campaigns and pleading with the White House to intervene with the apparently recalcitrant New Yorker, who advocates believe is willing ― or maybe even eager ― to let the clock run out on the legislation.

The legislation, if passed, would be both bipartisan and a direct confrontation of corporate power, a near sure-fire recipe for a political winner and the fulfillment of two of the Biden administration’s stated goals.

Neither Schumer’s office nor the White House responded to emails seeking comment for this article.

Sen. Amy Klobuchar (D-Minn.), who has dedicated much of the past two years to antitrust policy, wrote a book on the topic and chairs the Judiciary subcommittee devoted to it, did not name names when HuffPost asked about the status of the bills last week. But she made it clear corporate influence was blocking them from passage.

“At some point, the people in the building are going to have to decide that they are not giving in to the dominant social media platforms,” she said. “If they’re willing to take the heat from these big companies, then we can get something done.”

Klobuchar then noted how quickly Congress had removed legislation aimed at tech giants compensating the news industry from a recently passed defense bill. “They folded like a cheap suit,” she said. A spokesperson for Klobuchar later clarified that Schumer “had been advocating to get the journalism bill in the NDAA.”

When a reporter asked if that was due to opposition from Meta, Facebook’s parent company, she was blunt: “Of course it was.”

The three antitrust bills that advanced out of the Senate Judiciary Committee, which is evenly split between Democrats and Republicans, are relatively moderate measures that stop well short of anti-monopolists’ dreams of breaking up the big technology companies.

Klobuchar’s American Innovation and Choice Online Act would bar technology “platforms,” such as Google or Amazon, from giving preferential treatment to their own products. The committee voted to advance her bill, which has the backing of ranking Republican Sen. Chuck Grassley, in a 16-6 vote.

Sen. Richard Blumenthal’s Open App Markets Act would bar companies like Apple that operate digital app stores from restricting the app stores on which app developers can sell their products. The committee voted to advance the Connecticut Democrat’s bill in a 20-2 vote.

And another Klobuchar bill, the Merger Filing Fee Modernization Act, would increase fees paid to the antitrust enforcement agencies by companies involved in the most expensive mergers. The bill passed the House on a bipartisan vote and advanced out of committee in the Senate by voice vote. Sen. Rand Paul (R-Ky.) is the only senator to voice opposition to it.

Schumer promised Klobuchar a floor vote on her platform bill. And given the bipartisan majorities in support of Blumenthal’s legislation and hers on the Senate Judiciary Committee, antitrust advocates are confident that there would be the 60 votes needed to pass them.

But antitrust advocates say that Schumer has insisted that they produce a whip count of the 60 votes on their own, which these advocates believe is a transparent stalling tactic. It is very difficult for an outside organization to force a lawmaker to publicly commit to a particular vote on controversial legislation without even knowing whether a floor vote will occur.

“Whipping by a majority leader or a whip in service of an actual floor vote that they know is going to happen is going to carry way more weight than whipping by outside organizations,” said David Segal, a co-founder of Demand Progress, which supports stricter antitrust regulation.

“Chuck Schumer could call a vote on the app store bill and the self-preferencing bill tomorrow with confidence that they would pass,” Segal added. “I have no doubt that he knows that they would pass.”

With their bills in limbo, antitrust advocates have largely focused their ire on Schumer for persistently delaying action.

Over the past year, many possible reasons have been put forward to explain Schumer’s decision to delay. There were the complaints from a small group of vulnerable senators in the summer that a vote on the legislation before the election would only increase Big Tech’s advertising campaigns targeting them. Another group of Democrats raised concerns that the legislation would make content moderation on social platforms difficult. And now Schumer points to the cramped end-of-session Senate schedule as a reason why the bill can’t get its promised floor vote.

“If Schumer wanted this to happen it would have already happened, but it’s not too late, and hopefully he’ll have a change of heart,” a former Senate staffer who works on antitrust issues said.

Antitrust advocates knock these reasons as “pretense,” as the former Senate staffer put it, used to delay consideration until the clock runs out. Worries about content moderation are “concern trolling” regurgitating industry talking points, they said. And advocates note that Schumer has found time for other priorities during the lame-duck period, including offering a vote on a proposal by Sen. Joe Manchin (D-W.Va.) to make it easier to get permits for energy projects.

There is a divide among antitrust advocates on how hard to knock Schumer for not giving their bills time on the Senate floor. Some have pointed out that Schumer’s daughters work for Big Tech companies Amazon and Meta, with one registered as a lobbyist, and that he frequently raises money in Silicon Valley from tech industry executives.

Silicon Valley and the Big Four tech companies ― Google (Alphabet), Amazon, Facebook (Meta) and Apple ― play an outsize role in Democratic Party politics. Combined, they represent one of the largest sources of funds raised by Democratic campaigns and party committees. While this heft has waned somewhat with the explosion and decentralization of small-donor fundraising in the past four years, Democratic candidates and party leaders still make the pilgrimage to the Bay Area for big-money fundraising events.

The full extent of tech’s money influence in the Democratic Party can’t be fully known thanks to the continued operation of dark-money groups by party leadership to allow anonymous funding of election campaigns. The Schumer-connected dark-money nonprofit Majority Forward was the biggest donor to Senate Majority PAC, Schumer’s super PAC, in the 2022 election with more than $50 million in donations to it and other affiliated groups. No one knows who is behind these donations, although in the past some donations from other liberal nonprofits, labor unions, corporations and private equity executives have been identified.

Schumer has also elicited some suspicion for his personal ties to the industry. His daughter Allison is a product manager for Meta, Facebook’s parent company, and his daughter Jessica is a registered lobbyist for Amazon in New York state.

Big Tech executives specifically targeted him over the spring and summer in their successful efforts to delay a floor vote on the bills. He fielded phone calls from the CEOs of Google and Amazon in June. And in August, Bloomberg reported that Schumer had received $30,000 in donations from top lobbyists for Apple, Amazon and Alphabet after receiving no comparable sums in the two preceding election cycles.

Alleging a conflict of interest, advocates called on Schumer in July to allow a floor vote on the antitrust bills or recuse himself from their consideration. They also called on Schumer to disclose any Big Tech-connected contributions to Majority Forward.

Still other advocates, along with members and staff in Congress who support the bills, aim to put softer pressure on Schumer as they see that they will have to continue to work with him in the future and don’t want to burn bridges. Instead, they point to the massive lobbying campaign the tech industry ran against the bills over the past two years.

The technology companies have spent enormous sums lobbying to prevent passage of the Klobuchar and Blumenthal bills, despite their moderate nature.

Through a series of front groups, Big Tech firms spent more than $120 million on television ads bashing the three bills from every angle possible since the beginning of 2021, according to Bloomberg.

The tech lobbying group NetChoice claims that Klobuchar and Grassley’s tech platform bill would lead to the end of ultra-popular programs like Amazon Prime and Google Maps, claims that are spurious at best and laughable at worst.

In a lazy call-back to Obamacare opposition, the conservative group Americans for Tax Reform ― long known for taking corporate money to help out lobbying campaigns ― knocked the bill as a “Trojan horse for big government” that would “increase government abuse of conservatives.”

A Meta-founded front group called American Edge Project enlisted national security experts and generals to claim the bills would empower “foreign adversaries” such as China.

Ads from The App Association, which is largely funded and run by Apple, claimed that the Open Apps Market Act would undermine parental rights by letting children download costly apps behind their parents’ backs.

On top of the record advertising campaign, the Big Four spent $95 million on lobbying in Washington over the past two years. The firms loaded up on revolving-door lobbyists with experience on Capitol Hill, hiring Klobuchar’s former deputy legislative director, a senior GOP committee staffer who helped write Klobuchar and Grassley’s bill, and the former counsel of the antitrust subcommittee, among other former key congressional and executive branch staff.

In addition to the national security front group American Edge Project, the big tech companies launched a progressive front called the Chamber of Progress. The group has helped to push arguments opposed to the antitrust bills from a progressive angle, including alleging that Klobuchar’s bill would make it harder for social platforms to engage in content moderation.

The Big Four also attempted the tried-and-true lobbying tactic of enlisting small businesses, small trade groups and platform users to be the face of their lobbying push in order to make it look like the legislation threatened the little guy and not four of the biggest companies in the world.

They contributed to local chambers of commerce and minority business groups to push their line against Klobuchar’s bill. And they also tried to stimulate grassroots support against the antitrust bills, to mixed success. Amazon tried to get sellers on its platform to join its push against Klobuchar’s bill, but the sellers rebelled by noting their support for the legislation because they have felt squeezed by increased costs imposed by Amazon and angered by the company’s refusal to do enough to stop the spread of scams on the site. Google similarly blasted users of its office products with messages to write their House and Senate members in opposition.

Though the bills are limited in scope, the industry sees passage as an existential threat because of the precedent it would create, according to a senior Republican aide supportive of the bills.

“If you let one go, coalitions can start forming that you can’t really allow because then you can be vulnerable to serious reforms,” said the senior aide, who requested anonymity to speak without authorization. “So they went balls out against these bills and successfully have basically killed them.”

The chances of any of the bills passing largely come down to their inclusion in what Washington calls the omnibus ― legislation that passes at the end of nearly every year to fund the government and often includes unrelated, typically bipartisan legislation Congress failed to act on earlier in the year.

Some advocates believe Klobuchar’s legislation to increase antitrust funding stands a good chance of inclusion, while her and Blumenthal’s legislation to directly take on Big Tech faces a much stiffer fight, with perhaps the direct intervention of President Joe Biden being the only hope of passage. (One advocate noted Biden put out a statement supporting Manchin’s certainly doomed permitting reform legislation but has yet to say anything about the far more popular antitrust laws.)

Overall, anti-monopolists have been pleasantly surprised by Biden’s commitment to passing and enforcing stricter rules designed to limit the consolidation of corporate power. Biden appointed vaunted antitrust crusaders to key positions in federal agencies, tapping Lina Khan to head the Federal Trade Commission and Jonathan Kanter to lead the Department of Justice’s antitrust enforcement division.

But some of these anti-monopolists warn that the Biden administration risks undermining the perception that it is serious about tackling corporate consolidation if it allows the two moderate antitrust bills to die on the vine.

“It would benefit Democrats to carry this mantle forward,” Segal said. “If they do not, I don’t particularly think Republicans will, but it creates ambiguity about the question of which party is really going to stand up against concentrated corporate power.”

Igor Bobic contributed reporting from Capitol Hill.