Tech on the Hill • Andrew Desiderio (Punchbowl News)

Punchbowl News reporter, Andrew Desiderio joins Niki in the studio to share his insider handicapping of the state of play of tech policy on the Hill. They talk KOSA/COPPA 2.0, the DEFIANCE Act, and legislative gridlock. Andrew shares why 2024 has been a good year for major tech policy legislation despite the Senate being de-incentivized to pass tech legislation, the House likely to shut down what few bills passed the Senate before August recess, and other agencies being reluctant to pick up the slack. 

“When we look back on 2024, in terms of major tech policy legislation, we'll have seen some pretty landmark bills…” -Andrew Desiderio

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Transcript

Niki: I'm Niki Christoff and welcome to Tech’ed Up. Today's guest is Andrew Desiderio. He's a senior congressional reporter at Punchbowl News. He covers the Senate primarily and today we're recapping and handicapping the state of play of tech policy while the Hill is in its August recess. 

Andrew, welcome to Tech’ed Up.

Andrew: Thanks for having me. 

Niki: Thanks for coming into the studio. 

Andrew: Great to be here. 

Niki: It's always fun to have people in person. 

Andrew: Yes. 

Niki: We have good vibes in this studio. 

Andrew: I love it.I love the vibes in this studio. It's awesome. 

Niki: We are going to talk about activity that happened very recently, right before everybody left for August recess. A bunch of legislation made its way through the Senate or died spectacularly in the Senate.

Before we get to those specific bills, you and I were talking before we started recording about a common misconception that the Senate is more functional than the House, but you have some details about that. 

Andrew: Yeah, look, everybody looks at the House of Representatives and sees dysfunction and chaos, and they're correct to see it that way because that's what it is, right?

The Senate is more sort of controlled, organized chaos [Niki: laughs]. Over the years, the incentive structures for the leadership in the Senate have really changed because you see members more willing to object to unanimous consent requests. Obviously the Senate is a chamber that runs on unanimous consent.

So, when we see these different pieces of legislation make it through committee easily or have overwhelming bipartisan support, sometimes unanimous support in a specific committee, and then they get to the floor, and everybody thinks, “Okay, this is going to pass, right? It's going to pass within, like, a week or so at most.” 

And that's not the case. In our hyper-polarized sort of political environment, more members are willing to object. Sometimes even when they don't have substantive complaints or objections to the underlying legislation or in this case with the Senate nominations that they're voting on.

Senate used to be able to clear judicial nominees almost unanimously without issue. Now judicial nominees have become more partisan and as a result, the Senate Majority, whatever party they're from, has to use that valuable floor time to go through the motions, all the procedural hurdles to get those through.

And what suffers as a result is legislation. 

The Senate very rarely legislates these days unless it's on things that they have to pass, like appropriations bills, the annual defense policy bill, the foreign aid package from earlier this year. All these other issue areas, including on tech policy, on defense, on healthcare, transportation, all this stuff, suffers as a result because the Senate Majority Leader is always going to prioritize taking two legislative days on one single judicial nominee. The American public would be surprised to learn that that's how they prioritize their time but that is just the nature of the Senate these days. We see legislation that sometimes easily makes it through committee, cannot get floor time, cannot get considered on the floor, because when they do want to pass it on the floor very quickly, it just takes one objection for the entire thing to be derailed. 

Niki: And even if there's bipartisan support for the underlying substance of certain bills, there's a desire not to give a win to the other side.

Andrew: Exactly. 

Niki: Especially in an election year!  

Andrew: Yes, exactly! So, that's something that has always been the case in the Senate but obviously in our hyper-polarized political environment now is more so the case. That's why you saw throughout the summer Senator Schumer, the majority leader in the Senate, doing a bunch of show votes on issues related to abortion and the child tax credit. All these things you hear about in the presidential race that are getting most of the attention.

The incentives for the leadership have just, drastically changed over time to the point where they're prioritizing judicial nominees and these show votes, especially during an election year, where you're trying to show that the other side is too extreme, is not focused on the priorities of the American people, et cetera.

Niki: Right. So you take time to have a vote on something you know absolutely has no chance of passing just so you can get everybody on the record that they opposed it. 

Andrew: Exactly. Rather than taking four or five days to vote on a wildly popular piece of tech policy legislation. 

Niki: And I do think you're right that when people think of the House of Representatives, it's such an obvious representation of the fringification of America.

It's, like, so clearly dysfunctional, but the idea that you can't unanimously pass things that should have unanimous support. Setting aside Senator Paul, who loves to oppose. [chuckle] 

Andrew: Yes. 

Niki: There's no unanimous consent vote that he hasn't, y'know - 

Andrew: [interrupts] Well, we'll talk about him later with COSA and KOPPA, [Niki: right] because he was one of two people who ended up slowing down the entire process and ended up voting against it in the end.

But yes, he's very, he's very well known for that. 

[both laugh]

Niki: Okay, so this is a good transition into the actual legislation. [Andrew: Yes] t's a nice reminder to people. I think especially even if you work in D.C. at a tech company, you often have to report back to headquarters why this popular legislation or supported legislation is just not gonna go anywhere.

Andrew: People always ask me that. They say, “Oh, this cleared committee with y’know, unanimous support or just one no vote in committee out of a committee of 20 senators. Like, how could it not pass? How could it possibly not pass on the floor?” 

And that's the reason why it's- 

Niki: Politics, baby! 

Andrew: It’s politics! 

[both chuckle] 

Niki: Okay, so we will jump in.

Let's talk AI and election bills. I was at an event where Senator Klobuchar gave some remarks and she was talking about there is bipartisan support for the idea that political ads should be labeled when they contain any AI adjustments or modifications. Give us the scoop. 

Andrew: Yeah, so, y’know, one of them was about labeling political ads that use elements of artificial intelligence, even if it's something as minor as a graphic or something that's not intended necessarily to be misleading, like showing another candidate saying something that they didn't say, but maybe again, a graphic, an element of the ad just making sure that that's disclosed. 

There is bipartisan support for that, but the issue for many on the right, particularly people who are in Mitch McConnell's camp on this issue - because McConnell has been very much out there on issues of on federal election regulations and not wanting the federal government to regulate really anything related to elections.

He's a very big proponent of the Citizens United decision. Obviously, money in politics is one of Mitch McConnell's legacies. This goes hand in hand with that. He doesn't want anything to sort of handicap campaigns, to handcuff them, to make their jobs more difficult, whether it's Democrats or Republicans, right?

And that means not forcing campaigns to make these sort of disclosures. And people like McConnell have been central to the opposition to this type of legislation over the years. 

We saw it after the 2016 election when the Russians interfered in our, in our elections, and there was this effort to make sure that ads on social media were properly labeled, right? You had then Senator John McCain, y’know, very much out front on that issue in support of that legislation. [Niki: My old boss!] So, in that, so in that sense, it was bipartisan, right? Because you had a Republican there and maybe a few other Republicans, but bipartisan, the word bipartisan doesn't mean it's, it's overwhelming in terms of the support.

Niki: Right. So, even what, to me, sounds like a pretty common sense thing, which is just labeling an ad. You're not tying anybody's arm behind your back. You're just having transparency. Can't make it through. 

Andrew: Right. Exactly. 

And what happened a couple weeks ago, right before the Senate went on recess, is Senator Klobuchar, as you mentioned, who's a sponsor of this legislation, tried to make a unanimous consent request on the Senate floor to do it. And Senator Deb Fischer, a Republican from Nebraska who is very much in McConnell's camp when it comes to campaign finance issues and the regulations of elections, objected to it.

When somebody objects to it on the floor, it just, it dies. Unless the majority leader wants to go through the process of filing cloture and going through all those procedural hurdles in the Senate to try to get this legislation done. Again, there's no incentive for Chuck Schumer to do that, to take five or six days to pass a piece of legislation like that.

Unfortunately. 

Niki: And so, it's it's D.O.A. Dead on arrival. [chuckles] I don't know why I just said that, I mean, it's - people know what D.O.A. means! 

Andrew: Yeah, no, it's not going anywhere [Niki: chuckling] [Niki: Not going anywhere] And, y'know, they can try again in the next Congress and the Congress after that, y'know, before the 2028 elections. But I have a strong feeling that this is not going to go anywhere anytime soon.

Niki: So, we do have another branch of government that could regulate. I don't want to say misinformation or disinformation, but just AI modifications or even deepfakes. There's a huge spectrum of how much AI could be used to impact our political advertising and in the next coming months.

The Federal Election Commission could do something, but they're not going to do anything either. 

Andrew: Right. So, you have executive branch agencies that draw their authority from Congress, right? Like the FEC, like the FCC, like the FTC. Um, And they are all basically saying, “No, we don't want to try our hand in regulating AI. We don't want to get creative with this without clear guidance from Congress,” because they're worried about overstepping. 

They're worried, obviously, the Supreme Court ruling recently overturning the Chevron doctrine, uh, was, was key to that as well. You're seeing executive branch agencies be much more hesitant to put out these regulations on their own without first getting specific clear instructions from Congress. They don't want to run afoul of the intent of Congress, in other words. And so, there you have that problem where there's no intent coming from Congress because they can't pass anything, right? So, that's why we saw the FEC basically say they're not going to weigh in on this issue and try to regulate AI as it relates to elections and campaigns at the federal level this time. 

Niki: Shout out to rival reporter but friend of the pod, Ashley Gold. 

Andrew: Yes, we love Ashley! Ashley and I worked together at the BBC, eight or so years ago, so. 

Niki: So, she scooped that news? 

Andrew: Yeah, yeah. Ashley's great. 

Niki:  Yeah, she is. I know. We love her.

Okay. So, that's AI and election bills. Nothing is likely going to happen. 

Moving on. What did happen is COSA/KOPPA 2.0. Wait, what are they calling it? Something terrible. 

Andrew: KOSPA, I don't know. Acronyms are not Congress's, I mean sometimes they're Congress's strong suit, depending if you have a really creative member. [Niki: The SWIFT Act?!] 

Yeah, I mean it's just, y'know, this one's not good. 

Niki: Ugh. No, it's not good. But the Senate passed 91 to 3 a piece of legislation that is intended to protect kids on social media. 

Andrew: Right, so this was a long time coming, many months in the making. There were so many members of the Senate who had objections to the way it was crafted. They were worried about civil liberties concerns. Conservatives worried about this idea of censorship. 

Ultimately, they weren't able to persuade everyone and Senator Schumer, who made this a priority, had to go through the procedural hurdles and take about five or six days to pass this piece of legislation, but he looked at it and said, “Look, this is something that has 90 plus votes in the Senate. This would be a landmark bipartisan achievement.”

Schumer has been really trying to focus on that kind of stuff, especially for his vulnerable incumbents this year who are up for reelection. He saw this as an easy win that both sides could get behind. And basically, the way he did it was, y’know, over the last few months, he incorporated changes to the legislation that accommodated those concerns from people like Rand Paul, from people like Ron Wyden on the civil liberties side of things. Those two senators didn't end up voting for this legislation in the end, but it got as close as possible to resolving those concerns. 

From Schumer's point of view, this is the most important thing, which was maximizing the vote count, right? And saying to the House of Representatives, “Okay, You got, we got 90 plus votes on this. There's no way you could ignore this piece of legislation.”

Now, what the House leadership has said is, “We are very much going to ignore this piece of legislation.” [Niki: Right] The House leadership has communicated to the rank and file and we reported a couple of weeks ago that they are not going to take up COSA and KOPPA 2.0.

What they've said is that, “They've heard from many of their members who have concerns about X, Y, Z elements of the legislation,” and I think that's just a smokescreen for they don't want a big bipartisan victory this close to the election.  They don't want to, to give vulnerable members on both sides, frankly, something to point to as a victory. Even though Speaker Johnson has been very complimentary of this effort in the past. I think it's fascinating that the Speaker, went from very much saying, “Hey, I want to get this done,” to the next week saying, “We're not going to put this on the floor at all.”

Niki: Some of my colleagues in tech certainly will have issues with this legislation, different pieces of it, specifically that it creates a duty of care, right?

These tech companies have some kind of duty of care specifically for kids. So, under 18. We've talked a lot on this podcast about eating disorders and screen time addiction and -

Andrew: [interrupts] Promotion of suicide, these other. 

Niki: Correct. Promotion of suicide and the impacts on mental health. You mentioned civil liberties. On the progressive side, people are concerned that companies might end up restricting transgender information or access to LGBTQ kids who need that support in that community. 

Andrew: Reproductive rights, as well. 

Niki: Yeah. Don't get me started! Reproductive rights. Sorry! That's like [Andrew: chuckles] Childless cat lady here, but yeah, reproductive rights, too.

And so, there's a fear on the left that you might censor those things. There's a fear on the right that you might have politically censored things by big tech. Unfortunately, I think it's a damn shame that it's not going to pass through the house because Americans actually care about this. They don't really care about TikTok divestiture.

I care! [chuckling] But I don't think, I don't think the American public cares. [Andrew: Yeah] They do care about their kids' privacy online. They are concerned. It's a positive voting issue. And it's unfortunate that the politics are getting in the way of passing something that I think would be widely popular. 

Andrew: It's a positive voting issue and it's something that you've even seen these outside groups run ads based on. Right? I mean, like, think about it. Obviously living in the D.C. area, we see policy-specific ads from these outside groups all the time. But ones that are running throughout the country that actually connect to people relate to things like this, like social media, parents who have concerns about what their kids are able to see and do on these social media platforms, addiction, all these things that, y’know, that are really underscore the harms of social media, especially to children.

It is a shame that something, regardless of what the issue is, something that gets 90-plus votes in the Senate cannot get a vote in the House of Representatives. The reason obviously is politics. They're not saying what the reason is, because if you put this bill legislation as is on the House floor it would easily pass. It would clear the two-thirds threshold necessary for passing it under suspension of the rules, which is a sort of like a fast-track process for passing legislation in the House. They know that.

Niki: And President Biden would sign it into law! 

Andrew: And Biden would sign it into law. Exactly. 

So, you really saw, y'know, especially these Republican members of the Senate, like Marsha Blackburn, who's, who's really been the lead Republican on COSA-KOPPA over the years, really dismayed with what she's seeing in the House of Representatives, because again, she knows that this is a popular issue, something she's been working on for years obviously, so it's near and dear to her heart. So, selfishly, she wants to see it passed, obviously, but also for her as a former House member. 

Can't imagine what's going through her mind right now, seeing her former House colleagues just rejected out of hand when it got 90 plus votes in the Senate. 

Niki: Right. Congress, in general, has a PR problem. This isn't helping it. 

Andrew: Yeah, and look, as you said, these are issues that are popular with the American people. This is not a partisan issue. It's not a partisan piece of legislation. It's not something that, falls neatly on party lines. It really is a shame when you can't find a consensus on something that is really as broad as this. 

Niki: Right. Protecting kids [Andrew: mm-hmm] online. Which also, as someone who used to be at Google for a long time, Big Tech can comply with these rules. They can absolutely absorb it. So for them, it might be actually helpful to get a little bit of legislation passed [Andrew: yeah] to take some of the heat off of them, because this is one of the biggest issues.

Andrew: Exactly, because they get heat from parents, they get the heat from advocacy groups, they get heat from members of Congress, obviously, too. And now that they, y’know, if they were to have this enacted into law, they would be able to point to it and say, “Well, we have to do this now.” [Niki: Right]

The critics wouldn't be able to y'know, to, to lobby these attacks against them in terms of how they're interpreting it and how they might be enforcing it versus not enforcing it.

It, it would sort of insulate them from those criticisms. Um, But, obviously, not gonna see that, at least not this year. 

Niki: Okay. So, bummer, bummer, bummer. 

[both laugh]

Andrew: That's my job as a congressional reporter is to tell people, “No, that's not going to happen. That's not going to happen. That might happen.”  But most of the time things are just not going to happen on the Hill. [chuckling]

Niki: Okay, what about, we'll end on this, what about the DEFIANCE Act? 

Andrew: Yeah, this was a rare victory in AI and tech policy legislation. It passed unanimously on the Senate floor right before the recess.

It would basically apply current revenge porn laws. It would apply it to AI and deepfakes, right? In other words, the creation of non-consensual sexually explicit images through AI and deepfakes. It would allow victims to sue the federal government or to sue the perpetrators of those crimes more effectively, more easily by including AI and deepfakes as part of what is considered to be revenge porn under federal law.

Niki: And just for listeners who may not think about revenge porn that often. So, going back in history, I was at Google before there were any laws outlawing revenge porn. So, often it would be someone's former intimate partner [Andrew: Right] would use nude images of them, post them all over the internet, and since it was - 

Andrew: [interrupting] Blackmail them sometimes.

Niki: Blackmail them; cause an enormous amount of damage. And I remember sitting at Google and we would say, like, “It's not illegal. Do we take it down? Y'know, generally we take down things that are outlawed.”

Well, now there are a lot of laws outlawing revenge porn. [Andrew: Right] And we've added the, special ingredient of AI [chuckling], so you may not have even sent a nude, you might just be deepfaked into having a sexually explicit image of yourself.

Andrew: Right. Something created via, y'know, via artificial intelligence, via all these different technological platforms that allow these images to be created more easily and make them look real, right? And so, this gives victims the ability to sue if they are the victim of this. And it basically applies the current revenge porn laws to AI and deepfakes.

And that was something that [chuckles] miraculously the Senate could agree on, and it passed unanimously right before the recess. 

Niki: Well, it's so vile. I mean, we had a reporter from the Washington Post on this podcast, and she had had this happen to her. So she no longer has images of herself online. She has one image because it was used as a threat against her to, y’know, push her offline, which it sort of effectively did. And it can silence people. It can blackmail people. 

So, I am glad it passed unanimously. What happens now? 

Andrew: Well, it's got to go to the House of Representatives. It's something that passes unanimously in the Senate. Again, even something that gets 90 votes in the Senate doesn't automatically [chuckling] mean it passes in the House, but you do have House sponsors who are prepared to put this forward, either under a unanimous consent request or, as I mentioned before, this procedure in the House called the suspension of the rules, where you can pass something with a two-thirds majority.

This would obviously get more than two-thirds in the House of Representatives. 

Any member can sort of bring up that type of legislation and put it on the calendar, Democrat or Republican alike. And so, I expect that once the House comes back in September at some point, they will pass this piece of legislation.

And then, when we look back on 2024, in terms of major tech policy legislation, we'll have seen some pretty landmark bills. Not just with the TikTok forced divestiture bill that was included as part of the foreign aid package earlier this year, but COSA-KOPPA, as we were just talking about, and now this, the DEFIANCE Act.

And I think that when you look at it, sort of as a whole, that is a pretty successful year in Congress when it comes to tech regulations. 

Niki: I agree. And two of the three might actually, well, one became law already. You might get the DEFIANCe Act, too. And certainly, we're going to see COSA-KOPPA back next year.

Andrew: Absolutely. Yeah. And, and, y'know, a lot of it depends on what the party breakdown is next year in Congress and in the Senate and the House. I will say in the Senate, with Republicans highly favored to take back the majority in the Senate, one of the leading contenders to replace Mitch McConnell as Senate Republican leader is John Thune, who chaired the Senate Commerce Committee for a long time, has been very much involved in AI and tech policy over the years. And so, I could definitely see him wanting to revisit COSA-KOPPA in the next Congress. 

So, you do have people who are primed to be elevated to these different positions, both in the House and Senate, regardless of which party takes control that would, I think, want to advance legislation like this. 

Niki: I'm going to ask you a quick question. Is it coe-pah? I keep saying kappa.

Andrew: Y'know, Schumer says kappa, and so every time we've talked to him about it, he's like, he's like, “kappa, kappa, kappa.” [Niki: laughs] But coesah coepah just to keep the O kind of like- 

Niki: [interrupts chuckling] Right, coesah coepah sounds better. 

Andrew: He says, I think Schumer says, if I'm remembering correctly, “coesah kappa.” Yeah, coesah kappa is what he says.

So, anyway. 

Niki: Okay, well, nobody knows. 

[both laugh]

Andrew: Somebody knows. It's Chuck Schumer. He's a very eccentric guy. [both laugh] People don't know that about Chuck Schumer, by the way. He's a very eccentric guy, and when you interview him in his office, he gets very animated about certain issues. He gets very -  I'll just leave it at that.

Niki: Well, the first time we met, [Andrew: chuckling]  just to not leave it at that, the first time we met, we were having a conversation where you said that you felt like all these reporters were sort of held, I don't want to say hostage, but hearing him talk about artificial intelligence, he just had so much to say about it. 

Andrew: He did.

Yeah. And look, y'know, he started these working groups and he's really found good Republican partners in this effort. Probably not going to be a majority leader next year. Just the way the elections are most likely to go. So, you got to wonder what's going to happen to this, this AI working group, this larger AI effort that he's been spearheading. The Republican leaders of that effort that have been partnered with him are Mike Rounds of South Dakota and Todd Young of Indiana. And so, y'know, and y'know, as I mentioned, John Thune is very much interested in AI and tech regulation as well.

So, potentially, if Thune is the Republican leader next year, and they're in the majority, y'know, he could empower then Mike Rounds and Todd Young to be the Republican sort of leaders on this effort, to work with Schumer, who would presumably, in that case, be in the minority and try to get something done, especially when you don't have an election hanging over you [Niki: Right] as that sort of dark cloud like we have this year.

Niki: Right. The dark cloud. [Andrew: laughs] Well, and we're sitting, I think, about half a mile from the White House. So, it's just full - everybody's back in district. The election is in full swing and we are just doing a little autopsy of  [chuckling] 

Andrew: Yeah, that's a good word for it! 

Niki: Sorry, not autopsy, well, forensic analysis [both laugh] of tech policy making its way through the Hill.

We have a few months left, not a lot of time on the shot clock and must pass bills that have to get done. 

Thank you for taking the time to explain it and walk everybody through it. 

Andrew: Of course. Happy to do it.