As Congress nears its summer recess and the fall campaign season, the Senate has some high-profile measures that are just a few votes short of passing. There’s the $433 billion health and climate bill that hinges on whether Democrats can convince one of their own, Sen. Krysten Sinema of Arizona, to back it. And there’s the resolution codifying same-sex marriage protection that needs the backing of a few more Republicans to avoid a filibuster.
But amid all that jockeying for support, another bill is waiting only on one thing—for Senate Majority Leader Chuck Schumer to call it for a vote.
The sponsors of legislation intended to curb the power of Big Tech say they have more than enough support to pass it in the House and Senate and send it to President Joe Biden, who has signaled he would sign it. Yet Schumer, a Democrat from New York, keeps stalling, raising fears that he may be sabotaging the effort and giving in to the intense lobbying campaign against the American Innovation and Choice Online Act (AICO).
Schumer, speaking with reporters last month, suggested he was waiting until AICO had enough supporters before bringing it to the Senate floor. “I’m working with Sen. Klobuchar,” Schumer said, referring to Sen. Amy Klobuchar, Democrat of Minnesota and one of the most outspoken champions of AICO. “I support these bills. I want to bring them to the floor. We have to see that we have 60 votes.” He reiterated this week that he plans to bring the bill for a vote, but gave no timeline.
Both Democratic and Republican proponents of the bill claim Schumer’s cautiousness doesn’t make sense. “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 AICO, tells TIME, referring to it and a smaller companion bill. “It’s past time that the majority leader brings up our bipartisan antitrust bill cracking down on Big Tech’s anticompetitive behavior,” agrees Sen. Chuck Grassley, Republican of Iowa, in a statement to TIME.
The AICO legislation would prohibit dominant tech firms like Amazon, Google, Facebook, and Apple from preferencing their own products over competitors that have to use their platforms to reach customers. It has garnered some strange bedfellows; the bill is supported by virtually every Democrat who isn’t from California and some of the most conservative Republicans on Capitol Hill, such as Sen. Josh Hawley of Missouri and Rep. Ken Buck of Colorado. For seven months, supporters have stressed a tight deadline of moving the bill through both chambers by August 8, before Congress typically breaks for its summer recess and legislators shift to full campaign mode. At that point, the likelihood of passing major legislation diminishes.
Now, those same advocates have all accepted that AICO won’t come up for a vote before the break, as all the focus has turned to the reconciliation package that Schumer and Sen. Joe Manchin, Democrat of West Virginia, announced last week, stunning much of Washington. If a vote on AICO does come to fruition this year, it is more likely to happen in September or potentially during the lame duck session Congress will hold after Election Day. “My hope was that we would do it before we leave for the August recess,” Cicilline says. “I think that looks increasingly difficult just because of the press of other business. But I’m going to keep pressing them, and I’m certain that Sen. Klobuchar is going to keep pressing them, to get the bills to the floor, out of both chambers to the president’s desk.”
Sources familiar with the process say that Schumer keeps delaying the antitrust legislation to make sure Congress first passes bills that would help Democrats facing tough midterm election challenges, such as the Inflation Reduction Act to fight climate change and lower prescription drug costs, 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. Both the CHIPS bill and the PACT Act have made it out of both chambers.
“Right now, Schumer is taking care of his 2022-ers,” says a congressional aide working on the AICO bill who requested anonymity to speak more freely about the current state of play. “Then he can go to the rest of the caucus and say, ‘I took care of them, now I’m taking care of you.’ That’s why he’s the leader and able to make both segments happy.”
For months, lobbying groups on behalf of the major tech firms have poured tens of millions of dollars to sink the legislation. There are signs their efforts have at least given some lawmakers reservations. In June, four Senate Democrats wrote a letter to Klobuchar expressing concerns that the law would limit the ability of platforms to moderate content, thereby opening the likes of Amazon and Google to a raft of frivolous lawsuits. Two of the four lawmakers, Sens. Brian Schatz of Hawaii and Ron Wyden of Oregon, face reelection this year. Other Democrats with tough races in November, like Sen. Maggie Hassan of New Hampshire, have openly worried about passing AICO. Yet several polls suggest most Americans approve of legislation to take on the tech giants. A July 2021 survey by the Future of Tech Commission found that 80 percent of registered voters wanted the federal government to “curb the influence of Big Tech companies.”
The congressional aide posited that the Democrats facing reelection are less concerned about blowback from voters for supporting the bill than they are worried that Big Tech firms will pour dark money into their races to bolster their opponents. At the same time, those same Democrats would face a backlash from progressive activists and some of their own constituents if they voted against it. “The only reason [Schumer] would take this much water is to protect vulnerable Democrats,” the congressional aide says.
That’s part of what makes the AICO vote a complicated matter for Schumer, even though the bill appears likely to pass even without the support of those five Democrats. The Senate is split 50-50 between Democrats and Republicans, and the legislation needs 60 votes to avoid a filibuster.
Grassley, a co-sponsor of the Senate version, says there are nearly two dozen Senate Republicans prepared to vote for the bill. And GOP sources familiar with the process confirm that the Republican support is indeed that widespread. “Grassley and Klobuchar have the votes,” a lobbyist pushing for the legislation tells TIME. “Senator Grassley has stated he has more than 20 Republican votes. This tracks with the conversations I am having with Republican lawmakers as well. He doesn’t get the whip count wrong.” Another source familiar with the process tells TIME that Schumer hasn’t yet directed the majority whip’s office to conduct an official whip count on the legislation. According to Grassley, however, Democrats could afford to have more than 10 defectors.
Dan Geldon, a consultant who has been lobbying for the bill, also predicts the legislation would pass easily if there was a vote. “If Schumer calls a vote, there will be more than enough support for passage,” Geldon, a former chief of staff to Sen. Elizabeth Warren, tells TIME.
In the House, sources familiar with the process say that Speaker Nancy Pelosi is waiting for the Senate to advance the legislation before she goes ahead with what would be a tough vote for some of her members, especially in the California delegation.
Earlier this year, Schumer signaled that he would schedule the vote for this summer, prompting many in Congress to believe it would happen before the August recess. Now that such a vote seems unlikely, lawmakers and advocates are pushing harder for Schumer to move quickly.
“Senator Klobuchar and I have worked meticulously to prepare our legislation for a floor vote,” Grassley says. “All the while, armies of lobbyists for the tech giants continue to mislead about our bill. We need a date certain for a vote, and I call on Senator Schumer to name one if not before August recess, then this fall.”
Schumer’s stalling has made him the target of multiple protests. Fight for the Future, a progressive advocacy group, has been playing a John Oliver segment in support of the bill on repeat on a large video screen outside of Schumer’s Brooklyn home. And last week there was a demonstration outside of a fundraiser he attended in Capitol Hill. Social media has also been replete with theories that he may be beholden to the tech behemoths; a few weeks ago, he was spotted during a week the Senate was working near Amazon’s Seattle headquarters. Schumer’s office did not respond to questions asking what he was doing there.
“It is an open secret that we have the votes,” Evan Greer, Fight for the Future’s president, tells TIME. “Schumer knows we have the votes, and yet he hasn’t scheduled it. So it does start to raise eyebrows, and it certainly does seem like Schumer may be hoping to run out the clock on this.”
If the tech firms opposed to the bill can’t convince enough lawmakers to block it, delaying the vote is their next best option, in hopes that Congress won’t get to it this year and Republicans will win back one or both chambers in November. Rep. Kevin McCarthy, Republican of California, is the leading candidate to replace Pelosi as speaker in a GOP-controlled House, and is one of AICO’s fiercest critics in Congress.
But some AICO advocates are optimistic that Schumer is simply keeping his strategy for passing the bill close to the vest, and will ultimately surprise them all, much like he did on the climate and tax bill.
“I think that he is going to bring it to the floor,” says the congressional source. “It cannot be the case that he would lie publicly over and over again about it coming to the floor, let alone to us privately, simply because of the political hatred and vitriol that will generate long term. I can’t think of an analogy where a leader of a party said they were going to do something clearly and then did the opposite—and there wasn’t a reckoning.”