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'Not Over'?

JCPA Markup 'Blown-Up,' Bill Withdrawn After Cruz Amendment

The prospects for the Journalism Competition and Preservation Act are uncertain after a Senate Judiciary markup hearing Thursday in which co-sponsor Sen. John Kennedy, R-La., supported an amendment from Sen. Ted Cruz, R-Texas, that led JCPA sponsor Sen. Amy Klobuchar, D-Minn., to withdraw the legislation. The result was “a surprise,” said Judiciary Committee Chair Sen. Dick Durbin, D-Ill., in an interview. “Sen. Klobuchar thought she had an agreement with Sen. Kennedy, but he switched his position.” The JCPA (S-673) would create a limited antitrust exemption to allow news publishers to collectively bargain with tech platforms for the use of their content.

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The agreement we had was blown up,” Klobuchar said. “This was a surprise -- this was a long-negotiated bill.” Cruz’s amendment, which passed 11-10, would prevent tech and news companies from using the negotiations required under the JCPA to discuss content moderation, on pain of losing the bill’s antitrust exemption. Klobuchar said Thursday that the amendment “gives platforms an obvious opportunity for gamesmanship” since they don’t need the antitrust exemption while the publishers do. Without the amendment, the JCPA would be “a subsidy for censorship,” Cruz said in the hearing. Klobuchar said she had to hold the bill because Sen. Jon Ossoff, D-Ga., wasn’t present and hadn’t designated a proxy, giving the committee’s Republicans a majority. Ossoff’s office didn’t comment.

The bill’s inability to make it out of committee is not a good sign for its future on the Senate floor, said American Action Forum Technology and Innovation Policy Director Jeffrey Westling in an interview. “The #JCPA is, for now, dead,” tweeted Tech Freedom President Berin Szoka after the hearing. Klobuchar disagreed. “It’s not over,” she told us Thursday after the markup. “Every time you try to take on Big Tech, it’s not easy." She's optimistic Senate Majority Leader Chuck Schumer, D-N.Y., would bring the bill to a vote if it moves through committee: “At some point, the U.S. Senate is going to have to decide that they want to do something about Big Tech, both sides, and stop just talking about it.” “I don’t know if they’ll want to eventually vote on this or not,” said Sen. Josh Hawley, R-Mo. “They’re in favor of censorship.”

What happened today was a huge victory for the First Amendment and free speech,” said Cruz in an emailed statement. “Sadly, it is also a case study in how much the Democrats love censorship,” he said. During the hearing, Cruz said the amendment was aimed at preventing media organizations and tech companies from colluding to censor news. Klobuchar said the bill isn’t related to content moderation and contained provisions to ensure content neutrality. “They would rather pull their bill entirely than advance it with my proposed protections for Americans from unfair online censorship,” Cruz said. Cruz’s amendment was likely unnecessary and “could be interpreted to prevent providers from enforcing their community standards at all,” said Szoka, a JCPA opponent.

Kennedy said during the hearing that he didn’t find Cruz’s amendment objectionable, and that it “makes explicit what I thought was implicit in the bill.” The senator made it clear ahead of the markup that he was open to hearing out amendments, a Kennedy aide told us. If Ossoff had voted, the committee would presumably have tied at 11-11 on the Cruz amendment, leaving the decision on whether to adopt it up to Durbin, who voted against Cruz’s amendment Thursday.

Internet trade group NetChoice “applauds this move and hopes members will recognize and ultimately fully reject this proposal,” said a NetChoice release Thursday. “Good on the members of Senate Judiciary who made strong statements recognizing how this pro-collusion effort would empower government intervention into American news and views.” JCPA supporter News/Media Alliance said it encourages “the Committee to resume debate expeditiously and ultimately pass the bill.” Despite the bill being withdrawn, NAB President Curtis LeGeyt released a statement calling the markup "an important step toward leveling the playing field between local news outlets and Big Tech behemoths" and said the trade group "looks forward to working with the committee to finish its deliberation on this bill, and report it favorably to the full Senate in short order."

Prior to Cruz’s amendment, the committee approved several amendments from Kennedy that Klobuchar indicated had been previously agreed to as part of their arrangement. The bill was amended to include a sunset of six years rather than eight, and provisions requiring the losing party in litigation related to negotiations to pay the winner’s attorney fees. The committee also approved an amendment from Sen. Alex Padilla, D-Calif., to require the GAO to study the bill's in five years if it becomes law.

The committee voted down an amendment from Sen. Mike Lee, R-Utah, that would have removed carve-outs from the JCPA’s 1,500-employee limit for conglomerates. With the carve-outs, large companies that own many individual local newspapers or TV stations -- such as Gannet or Sinclair -- could benefit from the bill, while companies such as the Washington Post could not. “Why exclude some and not others?” Lee asked. Klobuchar said the 1,500-employee cap was a concession to Kennedy and Republicans, and that to give the publishers leverage against tech giants such as Meta and Google, she would have included all the large media companies. “You don’t exclude LeBron James from the player’s union,” she said. Just before Klobuchar withdrew the bill, Sen. Tom Cotton, R-Ark., offered up an amendment to reduce the cap to 150 employees, but it was tabled after the bill was held.

Before the bill was withdrawn, Committee Democrats Durbin, Padilla, Richard Blumenthal, D-Conn.; Patrick Leahy, D-Vt.; Diane Feinstein, D-Calif.; and Chris Coons, D-Del., all indicated they would support the bill with some amendments, while Republicans Hawley, Lee, Marsha Blackburn R-Tenn., and John Cornyn, R-Texas, all said they wouldn’t. Prior to the vote on his amendment, Cruz said Klobuchar likely had the votes to get the bill out of committee but that it would fail on the Senate floor if it weren't amended to appeal more broadly to Republicans. Whether the bill “has a realistic prospect of passing in the floor” will be determined by how the authors take his amendments, Cruz told the committee before the vote that led to the bill being withdrawn.