The Effort To Ban TikTok Faces Potential ‘Graveyard’ In Senate

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The Senate often becomes a key stumbling block in Washington’s efforts to confront Big Tech. The question now is whether that will change as the upper chamber weighs the fate of TikTok in the US.

A possible ban of the popular social-media app is atop the Senate’s agenda as lawmakers return to the nation’s capital This comes after a 352-65 House vote to advance legislation that would force TikTok’s Chinese owner ByteDance to sell the app or face that ban in the US.

The Senate in past years has served as a flashing red light to other technology reforms that found bipartisan enthusiasm in the House, including data privacy efforts and a move to prohibit tech giants from favoring their own products.

“The Senate may very well be a graveyard of this,” said Mark MacCarthy of the Brookings Institution and Georgetown University, in an interview about whether the TikTok legislation could fit a similar pattern.

There’s “some buyer’s remorse that is beginning to develop over the rapidity with which the action was taken.”

The signals so far from the Senate are that it will move slowly, if at all. Senate Majority Leader Chuck Schumer has yet to tip his hand, saying only that the Senate will take a look at the legislation once it formally arrives.

While the bipartisan energy behind any effort to take on China could overwhelm efforts to slow the bill, there are also significant legal issues that senators may not be keen to overlook.

For one, the bill’s decision to name TikTok specifically would almost certainly be challenged in court. There is also a broader concern that it would be challenged for taking away the First Amendment rights of American users.

“I don’t see how they can change that,” MacCarthy says of the free speech concerns. “That’s the heart of the bill.”

Washington’s supposed ‘cooling saucer’

Tech, of course, is far from the only issue where the Senate has taken on the role of tempering enthusiasm elsewhere in Washington.

It goes back to the beginning. George Washington reputedly said the Senate was created to “cool” House legislation like a saucer can be used to cool hot tea. To cite a more recent example, a bipartisan tax bill passed the House overwhelmingly in January of this year and is also currently languishing in the Senate.

But tech is where that pattern was particularly noticeable in recent years. Some activists charged that lawmakers in the upper chamber, and Schumer in particular, were too accommodating to the objections of CEOs.

One example came in 2022 when a bill that aimed to stop companies from favoring their own products over competitors seemed to be on the cusp of passage. After a furious lobbying effort from Big Tech CEOs, the bill never received a Senate vote as leaders like Schumer raised questions about whether it had the votes to pass.

Another episode took place in 2023 when the tech topic of the day was privacy, and the Biden administration and House lawmakers were pushing for action around a bipartisan bill called the American Data Privacy Protection Act. That bill still hasn’t been considered after concerns were raised in the Senate and elsewhere.

In addition to Schumer, the fate of the TikTok bill could also be in the hands of Sen. Maria Cantwell, an influential Washington state Democrat who chairs the Senate’s commerce committee.

She has been only slightly more forthcoming than Schumer so far. She praised the idea of taking on the issue but didn’t sound like a fan of the House approach in a statement that said in part “I will be talking to my Senate and House colleagues to try to find a path forward that is constitutional and protects civil liberties.”

And TikTok itself clearly views the Senate as the key battleground, with CEO Shou Zi Chew focusing his lobbying efforts on senators. In a recent video, he urged his 170 million American users to pass along their concerns to friends and family and also “share them with your senators.”

He also said in the video that his company was exploring its legal options.

A scrambled politics around TikTok

Further complicating the path ahead are different alliances this time around when compared to previous tech fights.

Some advocates who are still pushing last year’s privacy efforts — and who have been deeply critical of the Senate’s role there — are opposed to taking action on TikTok.

In just one recent example, the left-leaning group More Perfect Union renewed its calls to pass a privacy bill while also arguing against a TikTok ban. It said in a video on the issue that “the only real chance TikTok has is in the Senate.”

And there is also a recent flip on the issue from former President Donald Trump.

After years of pushing to ban TikTok, the presumptive GOP nominee for President argued against the bill in multiple recent Truth Social posts because he said getting rid of TikTok would help Mark Zuckerberg. Trump called Facebook (META) “a true Enemy of the People!”

House Republicans largely ignored Trump’s stance and voted for the bill by a margin of 197-15, but the former president’s point about the side effects of a TikTok ban is one others are raising as well.

In a recent Yahoo Finance Live appearance, Jefferies senior analyst Brent Thill noted of TikTok “if it was shut down, the place you’re going to go is probably on YouTube and the advertisers would flip over so Google could be a beneficiary.” Facebook and Pinterest (PINS) also could be helped, he added.

The House bill has also won the backing of two key senators in recent days with Senate intelligence committee chair Mark Warner and the top Republican Marco Rubio expressing their support and observers like Professor MacCarthy saying the bill still has a significant chance of passage.

At the end of the day, Washington and the tech sector are waiting to see where Senate leaders end up. Schumer is currently focused on feeling out where his Democratic colleagues stand, according to MacCarthy.

“And I think it’s the right job for a majority leader to be doing,” he said.