Chaos surrounding the “American Innovation and Choice Online Act” (S. 2992) has forced lawmakers to push back a potential vote on the bill until July at the earliest. This decision comes despite Sen. Chuck Schumer (D-N.Y.) promising a vote on the legislation by early summer.
This delay comes amidst a letter sent by several Democratic senators requesting language get added to the legislation to make online conservative censorship easier for social media organizations.
Make no mistake: the American Innovation and Choice Online Act, as currently drafted, does nothing to limit conservative censorship online. The closest language touching on the topic is in Section 3(a)(3) of the bill that would ban companies from “discriminat[ing] in the application or enforcement of the terms of service of the covered platform among similarly situated business users in a manner that would materially harm competition.”
Left-wing think tank Center for American Progress has already pointed out the many reasons why Section 3(a)(3) would not impact the ability of social media companies to censor conservative speech, which they, of course, find as a good thing. First, any defendant would need to convince either the FTC, DOJ or state attorney general to take on their case, as there is no private right of action under the legislation. Second, and even more disconcerting, all cases would be limited by a legal requirement to prove that the discriminatory act “resulted in material harm to competition, not just to the individual bringing suit.” In other words, the clause is intended to ban anticompetitive discrimination, not viewpoint discrimination. This distinction explains the reason for many liberal think tanks and progressive leaders, such as Hillary Clinton, Joe Biden and Bernie Sanders, endorse this legislation.
On top of this confusion, there has been bipartisan condemnation regarding the inherent risks associated with passing this legislation. Numerous Obama Administration economic officials have spoken out in opposition of the bill due to its potential to increase inflation. Rep. Eric Swalwell (D-Calif.) recently came out against AICOA citing national security concerns as well as the negative jobs impact that the bill would have on his constituents. The Wall Street Journal Editorial Board criticized the bill’s vague language that makes it, “hard to predict how regulators would apply the bill’s conduct prohibitions and mandates.” The US Chamber of Commerce and 175 state and local chambers of commerce, the largest organization representing small business interests to oppose S. 2992, wrote a letter condemning the legislation. Opposition for this wildly flawed legislation comes from various legislators, experts and organizations across the country. This fierce opposition has made it increasingly difficult for the sponsors to create a narrative wishcasting support for the legislation.
However, the vague language of the bill makes these questions about its impacts difficult to answer. The confusion amongst legislators regarding AICOA’s actual effects shows that the bill is not nearly ready for a floor vote. It is imperative that these issues of contention and speculation get sorted out before Congress is tasked with deciding whether to make it the law of the land.
If Schumer puts AICOA to the floor, Republicans should hold the line and vote no. Conservatives cannot support a bill that exacerbates censorship while empowering big government to choose economic winners and losers.