On Big Tech, Republicans Need to Keep Their Eyes on the Ball

A mid the headline-grabbing debates over abortion, inflation, and Ukraine, two significant Big Tech bills are quietly making their way through Congress with bipartisan support. The first, the Open App Markets Act (OAMA) — a bill that would bar large app stores from requiring that developers use the platform’s payment system — was voted out of the Senate Judiciary Committee by a margin of 20–2 in February. The American Choice and Innovation Online Act (ACIOA), which would prohibit Silicon Valley powerhouses from “self-preferencing” — i.e., giving preferential treatment to their own services on their distribution platforms — advanced out of committee by a margin of 16–6 just a few weeks prior. That bill, CNBC reported earlier this month, “is just a few steps away from becoming federal law”:

Jesse Lehrich, co-founder of Accountable Tech, expressed “cautious optimism” that this Congress would pass both the self-preferencing bill and a separate bill that is more specifically targeted at how companies display apps in mobile app stores.

Lehrich said he’s even “bordering on confident” that the self-preferencing bill will be signed into law by August. “I do think that this is kind of like a make-or-break time where stuff’s either going to start to move forward in this next upcoming month or two or the window is going to close quicker than people think,” he said. . . . Rep. Ken Buck of Colorado, the top Republican on the House Judiciary subcommittee on antitrust and one of the chief champions for the bills, alongside Democratic sponsor Rep. David Cicilline, D-R.I., predicted in a CNBC interview in April the self-preferencing bill will “have the votes in both chambers to move forward,” adding he believed it would pass before the August recess.

I defended the ACIOA when it was voted out of committee earlier this year, arguing that the conservative criticisms of the bill’s “socialist” provisions were misguided. While some libertarian-minded skeptics slammed the legislation for what they perceived to be an expansion of the power of the federal bureaucracy, “Big Tech already is working hand-in-hand with progressive technocrats,” I wrote. As a general matter, I tend to be more bullish on public-policy interventions in Silicon Valley than some of my colleagues: I’ve advocated for reforming Section 230 of the 1996 Communications Decency Act, for example — the controversial provision that protects powerful Internet platforms from being held liable for the content that users post on their forums — “to require more free-speech protections for users.” In October, I wrote:

There is no conservative principle that dictates that Big Tech is entitled to the special treatment it enjoys under Section 230. No clause in the Constitution dictates that Congress owes tech companies a liability shield without asking for anything in return. And there is nothing coercive or authoritarian about requiring beneficiaries of such immunities to observe a basic commitment to free and open debate.

But as bills such as the ACIOA edge closer to becoming law, it’s also worth pausing to consider what, exactly, conservatives hope to achieve when it comes to tech policy. There’s a deeper question here, which serves as a proxy for some of the broader divisions within the conservative movement: Is the problem with “woke capitalism” primarily the wokeness, or the capital?

When it comes to Silicon Valley, the answer is a little bit of both. The raw power that Big Tech exercises in American life, in and of itself, represents a challenge to republican self-government. It goes above and beyond the question of censorship and ideological bias. Robert Epstein, senior research psychologist at the American Institute for Behavioral Research and Technology — himself a Democratic Party partisan and Hillary Clinton voter — studied 13,207 Google, Bing, and Yahoo searches from the 2016 election to measure the search engines’ partisan lean and influence on voter behavior. The Google results, he reported in 2019 Senate testimony, “were significantly biased in favor of Secretary Clinton in all 10 positions on the first page of search results in both blue states and red states” — a powerful skew that “likely impacted undecided voters in a way that gave at least 2.6 million votes to Hillary Clinton (whom I supported).” In 2020, he predicted that Big Tech would “be able to shift upwards of 15 million votes.”

At the level of first principles, there is a viable argument that no private platform should have that kind of power. But the immediate problem, from the conservative perspective, is still ideological. In the long term, Americans of all political backgrounds will need to reckon with how to assimilate the unprecedented power of platforms such as Google into a political system where the people remain sovereign. But the GOP’s first task is to secure an arrangement that allows conservatives to engage on a fair playing field.

Which brings us back to the tech bills in Congress. Is antitrust for antitrust’s sake a worthy goal? There’s an argument that weakening Silicon Valley would redound to the benefit of conservatives. But bills such as the OAMA and the ACIOA are also a missed opportunity, insofar as they have little to say about the ideological biases of Big Tech companies: As the tech writer Allum Bokhari noted in April, referring to both bills:

Both allow Big Tech to discriminate against content if there is a “safety” justification. Safety has become a euphemism for censorship. Twitter, Google, Apple, Facebook, and Spotify all have “Safety” or “Trust and Safety” groups in charge of political censorship. Those concerns are compounded by the fact that in the immediate term, the law will be enforced by Biden’s far-left and pro-censorship FTC.

Progressives themselves have been defending the bills on the grounds that they would not hinder Big Tech’s ability to censor dissident voices: “It’s important to ensure that laws targeted at competition or privacy issues do not inadvertently undermine other areas of public interest such as improved content moderation,” a Center for American Progress report argued earlier this month. However, it concluded, “the litigation pathways offered by the bills seem highly unlikely” to impede efforts to ban or restrict speech.

Some would argue, not unreasonably, that Republicans’ willingness to go after Silicon Valley would make Big Tech censors think twice about cracking down on conservative speech. As I’ve written in the past, corporations are self-interested actors — they respond to incentives. And when Republicans show that they’re prepared to actually pick fights with companies that put their finger on the political scales, corporate America responds accordingly. But since these are bipartisan bills, championed by progressive activists and Democratic lawmakers — many of whom are, as Bokhari puts it, “amongst the most vociferous advocates for censorship” — there’s a non-negligible danger that Silicon Valley would learn the wrong lesson from their passage, further internalizing the idea that the primary threat of retaliation comes from the left.

The other potential problem is that Republicans might rally around antitrust action rather than ideological bias, losing sight of the central problem that they should focus on when it comes to Big Tech. If bills such as the ACIOA pass, their Republican sponsors will no doubt go home to their voters and report that they did something about Big Tech. But they won’t have confronted the fundamental issue of bias.

Someone who is confronting the issue is Representative Jim Banks (R., Ind.), the chairman of the Republican Study Committee. The Indiana congressman has been circulating a bill that “implements ‘common carrier’ rules for technology companies with platforms that are both open to the public and have more than 100 million worldwide monthly active users,” Jon Schweppe noted in January. That would bar Big Tech companies from discriminating “against users based on viewpoint, identity, class, or political, religious, or geographic affiliation,” or from “advantaging one of these groups over another” — a provision akin to the one floated by Clarence Thomas last April. (In a concurring opinion to Joseph Biden v. Knight First Amendment Institute at Columbia University, Thomas wrote that digital platforms “resemble traditional common carriers,” concluding that “if the analogy is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.”)

But while bills such as the ACIOA have continued to move forward with Republican support, Banks’s legislation has yet to go anywhere. Banks told National Review that he “looks forward” to his legislative proposals “to hold Big Tech companies accountable by no longer guaranteeing Section 230’s blanket immunity . . . being taken up in Congress by Republicans when we take back the majority in Congress later this year.” One can only hope he’s right.

None of this is an argument against the ACIOA and OAMA, per se. It’s important to think prudentially — we can’t afford to make the perfect the enemy of the good. But this is an opportunity to think seriously about what, exactly, “the good” means to conservatives, and where our priorities should lie. It’s important that Republicans keep their eye on the ball.