Jacquelyn Martin/AP Photo
Senate Majority Leader Chuck Schumer (D-NY) on Capitol Hill this week
On January 4, while everyone’s attention in Washington was turned to the stalled vote for House Speaker, one of D.C.’s most prominent law and lobbying firms made a quiet announcement. Reggie Babin was joining Akin Gump as a senior counsel in its “public law and policy” practice, which is a euphemistic way to say lobbyist. Babin was previously chief counsel to Senate Majority Leader Chuck Schumer (D-NY). “I look forward to putting the knowledge and experience I’ve earned in nearly a decade working in the House and Senate to work for our clients,” Babin said in a statement.
Those clients include Big Tech. Akin Gump, which earned nearly $54 million in lobbying fees in 2021, received half a million dollars from Amazon over the past two years, and $420,000 from Google over the past decade, according to lobbying disclosures. (Schumer’s office told the Prospect that Babin didn’t handle tech issues.)
The hiring, which has only been mentioned in passing by D.C. media, adds to what has been reported as over 80 former Schumer staffers now working directly or indirectly for Big Tech. His former chief of staff David Hantman has lobbied for tech firms—his wife was Google’s first in-house lobbyist—and another former chief counsel, Stephanie Martz, lobbied specifically for Amazon and Google.
That helps fill in what has been a puzzle in Washington: Why did the Democratic majority in the last Congress punt on a bipartisan package of legislation to rein in Big Tech abuses, which its authors said consistently for months had the votes necessary for passage?
Other analyses have pointed to Schumer as the primary impediment for the bills. “If Schumer wanted this to happen it would have already happened,” one former Senate staffer told HuffPost. But a detailed timeline, constructed from interviews and publicly available information, is if anything more damning to the Senate majority leader. At a time when the public, the White House, and a supermajority of lawmakers were ready to hold Big Tech accountable, Schumer sided with $277 million in industry lobbying and ran out the clock on the process.
Though his stated rationale for not bringing the bills to the floor (after previously promising to do so) was that they couldn’t get past the 60-vote threshold to avoid a filibuster, sources indicate that Schumer never conducted a private whip count to test that theory. And erroneous sourcing on a tweet during the lame-duck session proved that Schumer’s office was directly trying to blame others for the bills’ failure, while covering his tracks.
“All of our worst fears about Schumer were totally true,” said one pro-reform person involved in the effort to pass the bills. “Any other theory of what was going on here is bullshit.”
In a statement provided to the Prospect, Schumer said, “This is something I believe in. I’m not giving up and we’re going to keep working to get something passed.”
THE TECH BILLS CAME OUT of an intensive, yearslong study of the industry. The American Innovation and Choice Online Act (AICOA) would ban large tech platforms from self-preferencing their own products over rivals on their platforms, and the Open App Markets Act (OAMA) would limit gatekeeping of phone-based applications by the two dominant mobile phone makers, Apple and Google. Both bills had bipartisan co-sponsors, and they consistently held overwhelmingly positive support among the public: 76 percent for AICOA and 80 percent for OAMA in one poll last summer, and similar support in all the battleground states.
Schumer sided with $277 million in industry lobbying and ran out the clock on the process.
In general, lawmakers believed they had the votes. Both bills passed the Senate Judiciary Committee with broad bipartisan support. Sen. Chuck Grassley (R-IA), then ranking member on Judiciary and co-sponsor of AICOA, at one point said he had more than 20 Republicans lined up to vote for it. Even Sen. Joe Manchin (D-WV) said there was “no excuse” for not holding a vote.
Sources engaged with the bills described the year as a roller coaster of hopes followed by disappointments and excuses. The House was keen to let the Senate go first, to see if it could cross the 60-vote threshold. Schumer first promised a vote on AICOA last May, saying it would happen “by early summer.” This came out shortly after the New York Post pointed out that Schumer’s two daughters worked for Amazon (as a registered lobbyist) and Facebook (as a product marketing manager).
Right after Schumer’s announcement on a vote, a leaked conversation among Senate chiefs of staff cited Marc Goldberg, chief of staff for Sen. Maggie Hassan (D-NH), objecting to holding a “controversial” vote. It’s unusual for anything from chief-of-staff meetings to leak to the press.
That was supposed to be “the kill shot” for the bills, one source told me. But at the same time, Tech Oversight Project executive director Sacha Haworth was conducting polling in New Hampshire with Schumer’s own pollster. “There are a limited number of reputable pollsters in D.C.,” Haworth said. “We wanted to make sure that people who pay attention to Senate races would pay attention.” The poll found that New Hampshire voters would be more likely to back Hassan if she voted for AICOA and OAMA, contradicting Goldberg’s claims. (Hassan, according to two sources, would eventually endorse the bills and urge Schumer to hold a vote. Her office did not respond to a request for comment.)
The summer brought another roadblock. As the Prospect has reported, a group of law professors, one of whom received numerous rounds of research funding from Google, claimed that the antitrust bills would make content moderation on social media impossible, and further hate speech and disinformation. Four Democratic senators followed up, writing to Sen. Amy Klobuchar (D-MN), co-sponsor of AICOA with Grassley, asking her to fix one section of the bill to allow for content moderation.
The content moderation issue was complex—supporters of the bill said it wouldn’t be touched by the legislation—but the reason it came up was reasonably clear: to drive a wedge between the fragile coalition of Democrats and Republicans on the bill. Republican co-sponsors didn’t want an explicit provision that in their minds would allow platforms to target conservative speech. The proposed exemption for content moderation was designed to kill the bill.
Sen. Brian Schatz (D-HI) was a leader of this effort. He later told the Prospect and other outlets that he met with Klobuchar and was “assured that modifications will be made to the bill” to address the concerns; Klobuchar’s office confirmed the meeting. Some reformers saw this as an attempt to drive the wedge further by publicizing a change on content moderation that would rile Republicans. Schatz would later get a newly created leadership position from Schumer at the end of the year.
“Schumer’s hostility to Big Tech accountability was the central problem but Schatz went out of his way to do their bidding throughout the process and was incredibly disingenuous about it,” said one former Hill staffer who worked on the legislation. “He let Big Tech exploit his progressive credentials again and again.”
Schatz spokesperson Michael Inacay responded that the senator “strongly supports measures to stop Big Tech’s anti-competitive practices,” and reiterated that he received assurances that the content moderation issue he had was resolved. “He plans to support the bill this Congress, assuming it is reintroduced with those changes still included,” Inacay added.
THROUGHOUT THIS TIME, advocates were pressuring Schumer to hold a vote, including by disrupting donor events. A segment on John Oliver’s show about the bills got nearly eight million views online. Klobuchar gave an hour-long floor speech asking for the vote she was previously promised. Schumer’s spokesperson in New York, in response to a New York Post story, said in August that the majority leader still planned to bring AICOA up for a vote in the fall. This was later scrubbed from the article, but because it was public, his office had to support the quote.
Meanwhile, Schumer was on the road looking for funding for the Senate midterm races. He found himself in Seattle, site of the headquarters of Microsoft and Amazon. It was later confirmed that he met with Microsoft president Brad Smith about the antitrust bills. Schumer spoke with Amazon CEO Andy Jassy that summer as well. (Google CEO Sundar Pichai also contacted Schumer’s office.)
Donations were flying around the bills as well as lobbying cash (a record amount for Apple, for example). Big Tech lobbyists bundled $1.7 million for the Democratic Senatorial Campaign Committee, the arm of Senate Democrats. But that’s only the money we know about. Schumer, like all congressional leaders, has a dark-money vehicle, Majority Forward, which contributed over $74 million to candidates in the 2022 cycle. Those donors are not disclosed. (Schumer was asked repeatedly to disclose these anonymous donations and did not.)
Furthermore, a preoccupation of Senate leaders and threatened incumbents is dark money that large corporations could spend but choose not to, as long as the members stay on their good side. The relative popularity of various policies is often beside the point. “One of the tech front groups ran billboards in Atlanta accusing Warnock and Ossoff with collaborating with Ted Cruz,” said Haworth. (Cruz was a supporter of the tech bills.) “That’s BS obviously, but when you’re up for re-election and nervous about it, you don’t want to do something that can come back and bite you.”
Eventually, Schumer said there wasn’t enough time to pass the bills before the midterms. The White House was engaged throughout, but went public after the midterms, as the Republican takeover of the House became apparent. White House competition czar Tim Wu, who recently left his post, said the administration was “committed” to moving the tech legislation, and press secretary Karine Jean-Pierre confirmed that.
A preoccupation of Senate leaders and threatened incumbents is dark money that large corporations could spend but choose not to.
During the lame-duck session, two must-pass bills—the National Defense Authorization Act and the omnibus spending package—were potential final vehicles for the tech antitrust bills. “These bills emerged from committee with margins that obviously meant they would overcome a filibuster, and certainly wouldn’t have undercut any must-pass bill that they could have been folded into,” said David Segal, executive director of Demand Progress.
At one point, OAMA was primed to be inserted into the omnibus spending bill. An internal process between the chair and ranking member of the Senate Judiciary Committee was cleared. But suddenly, a tweet from Politico’s Emily Birnbaum said that “OAMA was elevated from the committee level to the leadership level and Leader McConnell rejected it.” The version of this tweet that currently exists on Twitter sources that quote to “a person familiar with the negotiations,” but an earlier version sourced it to Schumer’s office.
McConnell’s office never responded to a question about whether he actually rejected OAMA. But to many reformers, Schumer’s fingerprints on the tweet were proof of his intent. The entire year, he was stating publicly that he supported the bills and was working with Klobuchar and others to round up the votes. That Schumer’s office called a reporter to point the finger at McConnell showed that he was actually trying to kill those bills behind the scenes while keeping his hands clean.
Eventually, a minor antitrust bill did make it into the omnibus that was not focused on tech. It gave more money to the antitrust agencies for enforcement, and tightened venue-shopping so corporations couldn’t essentially choose their judges. But as the Prospect has reported, an errant copy of the bill made the venue-shopping piece retroactive, meaning that Google could have faced a change in venue for its active antitrust lawsuit with the state of Texas, which got moved to New York in 2021.
As a result, Google complained, and Schumer posted an amendment to the bill to eliminate retroactivity. Klobuchar used the opportunity to deny unanimous consent for that change without getting more money for the antitrust enforcement agencies. That had to go to a vote, and it got 88 senators.
“Of the 4,200-page bill, the only tech amendment Schumer was working on was a Google-specific carve-out,” one source said. The fact that there had to be a public vote, which passed resoundingly, also showed that there was no interest in blocking antitrust action inside a larger bill, which made the claim that the tech bills wouldn’t have the votes more dubious. “The question of Senate passage reduced to one factor: Schumer’s unwillingness to call a vote,” Segal said.
THE DISAPPOINTMENT STANDS in contrast to the White House’s largely successful efforts to challenge corporate power, including in the tech sector. This week, the Justice Department sued Google for monopolization of online advertising.
But legislative action is certainly less likely now. House Speaker Kevin McCarthy (R-CA) has been an ally of Big Tech in private, despite public statements to the contrary. Though prominent Republicans (including Sen. Lindsey Graham of South Carolina and former Attorney General Bill Barr) have endorsed some aspects of the tech bills, and President Biden himself in a Wall Street Journal op-ed asked the parties to “unite against Big Tech abuses,” signaling a renewed White House push, the climb will be even harder in this Congress. (That the new White House chief of staff previously sat on Facebook’s board could also be a hurdle.)
And even if McCarthy was worn down, Schumer remains an apparent obstacle. Schumer is a crucial ally of the president on nominations and judicial vacancies, as well as holding a strong line in negotiations with the House over the debt limit and other measures.
For their part, the coalition isn’t giving up. “The bills will be reintroduced,” Haworth said. “We put this motley crew of a coalition together, advocates across the spectrum, left and right, civil rights groups, free press groups, tech watchdogs. And we don’t have to do that again.”
Wu, in an exit interview with Kara Swisher, called the tech bills “exhibit A of a story where Congress is unable to do what the vast majority of the American public wants.” But the timeline makes clear that it wasn’t Congress as much as it was Sen. Schumer. As Wu acknowledged, “When things don’t come to a vote, there’s something extraordinarily anti-democratic about that.”
UPDATE: An earlier version of this story included a reference to Sen. Tammy Baldwin (D-WI) not agreeing to be on the letter about content moderation before it was released. Sen. Baldwin's office confirmed that they did agree to it. We regret the error.
