Last week, the Senate Judiciary Committee held a markup on the “Journalism Competition and Preservation Act,” legislation sponsored by Sen. Amy Klobuchar (D-Minn.) that would create an antitrust exemption for certain publishers to collectively bargain against Big Tech platforms.
The markup collapsed in dramatic fashion when Klobuchar pulled the plug on her own bill after Sen. Ted Cruz (R-Texas) successfully offered an amendment that addresses conservative censorship. Klobuchar’s total unwillingness to meet conservatives halfway on content moderation issues spells doom for her efforts to ram the “American Innovation and Choice Online Act” through Congress.
The JCPA creates an 8-year antitrust exemption for news companies below a government-determined size to form a legal cartel in negotiations with online platforms that host their content. This media cartel would then negotiate the terms in which digital platforms are allowed to distribute content.
During the markup, Cruz offered an amendment that would limit the negotiations between the media cartels and platforms to discussions of payment. The Cruz amendment would remove the antitrust exemption for news organizations if they discuss content moderation during negotiations.
“If you’re negotiating, you ought to be negotiating on the ostensible harm this bill is directed at, which is the inability to get revenues from your content,” Cruz said, adding: “You should not be negotiating on content moderation and how you are going to censor substantive content.”
Sen. John Kennedy (R-La.), the lead Republican sponsor, agreed with the Cruz amendment and said that it made ‘explicit what [he] thought was implicit’ in the legislation. Klobuchar balked at the Cruz amendment and at Kennedy’s support for it, threatening to pull the plug on the legislation if the amendment was included.
After the Judiciary Committee voted to adopt the Cruz amendment 11-10, Klobuchar made good on her threat and pulled the bill, ending the markup. The JCPA will get another markup this week, and it remains to be seen if the updated version of the bill will reflect the Cruz amendment.
Besides showing that the JCPA was not ready for the Senate floor, last week’s markup has important implications for the fate of AICOA, Klobuchar’s other antitrust bill that has failed to gain traction in either chamber of Congress.
A small handful of Republicans have lined up behind AICOA because they believe it will stop Big Tech censorship of conservatives online. In reality, the bill would marry Big Tech and Big Government by giving Biden bureaucrats sweeping new regulatory authority over the economy. If Big Tech companies have to run to the ultra-woke FTC for permission to conduct business, you can rest assured that the online environment will get worse for conservatives, not better.
Klobuchar has failed to get her own party on board with AICOA. Over the summer, four Senate Democrats sent a letter to Klobuchar with concerns that the bill would “hinder content moderation practices,” and suggest an amendment that would make it clear that nothing in the bill would hamper Big Tech’s ability to moderate content. Immediately after Democrats released their letter, lead AICOA Republican sponsor Chuck Grassley (R-Iowa) said that Republicans will walk if the proposed amendment is added.
The Cruz amendment is the mirror image of the amendment that Senate Democrats are asking for on AICOA. Klobuchar needs to get to 60 Senate votes to pass AICOA and avert a filibuster. If Klobuchar adopts the Democrat amendment, she loses all Republicans and it sinks AICOA. If Klobuchar does not adopt the Democrat amendment, she loses at least the four Democrats that wrote the amendment and still can’t get to 60 votes.
Recent media reports indicate that Klobuchar is hashing out a secret deal to add some form of content moderation language to AICOA, a last-minute attempt to shore up her left flank and get all Democrats on board. Conservatives should understand that Democrats will never agree to content moderation language that increases conservative speech online.
JCPA’s ultimate fate remains to be seen. One thing is for certain – the fact that Klobuchar would rather tank her own bill than address conservative censorship concerns should cast a large shadow on any content moderation language Klobuchar may add to AICOA. Republicans should stay far away from Klobuchar’s antitrust pet project, no matter what form of it she tries to ram through Congress before the midterm elections.