The most fascinating aspect of political alliance and majority building is that people--or political parties--may agree on the adoption or rejection of a proposal for reasons that can be disparate or, in some cases, seemingly irreconcilable.
That is what could get the Open App Markets Act (OAMA) over the finish line now during the "lame duck" session of Congress. In the end, Apple and Google's national security and privacy pretexts and the pandering of a very few politicians may fail to prevent the OAMA from being passed into law. It could be--and I keep my fingers crossed--that Democrats who have long wanted to reverse the constant gutting of the antitrust laws will form a solid majority with Republicans who are normally not in favor of governmental intervention, but are weary of Silicon Valley "wokism."
In the end, a majority is a majority regardless of individual reasons. That even applies to judicial decisions, but those are not just a vote: it can be a huge challenge for a majority of a panel or full court to author a decision. The Federal Circuit's en banc decision in the Alice case (patent-eligible subject matter) came down to each judge taking a different position from the rest, and they then had to figure out a way to identify just enough of an overlap to identify a majority. In politics, that's not needed: they cast their votes, and tell their voters why they did what they did, but the vote itself is a straightforward yay/nay count.
Elon Musk is antagonizing Apple for a mix of reasons. Let's separate the App Store issues from the ad spend part (the "odd man out" in that mix). So, there is a problem with the app tax but also one with app review. Epic Games focused on the app tax in its litigation with Apple, but app review was also discussed in last year's trial. The OAMA would address both issues at the same time: the app tax will go down, and review guidelines and their application will become much more reasonable, if there is competition between app distribution channels.
According to Mr. Musk, Apple didn't even clarify why Twitter might be ejected from the App Store. We don't even need to know: it's bad enough that Apple has the power to do this over one or both of the possible reasons (Mr. Musk's resistance to the app tax and/or his vision of free speech). Whether an app is kept out of the App Store or economically unsustainable due to the app tax has the same effect. It now looks like Twitter already wanted to launch its new Blue subscription on Tuesday, but the unresolved app tax issue is the reason for further delay.
At a very important time--shortly before the end of the current Congressional term--immense political momentum is building. If it came to worst, the bill could always be re-introduced in one form or another. But with what's going on now, I'm increasingly hopeful that the OAMA may indeed be enacted in the coming weeks. Some Republicans such as Senator Marsha Blackburn (Tennessee) and United States Representative Ken Buck (Colorado) have been in favor of the OAMA for some time. But now more and more powerbrokers throw their weight behind the OAMA. At a press conference, Florida Governor Ron DeSantis--probably the next Republican presidential candidate--called on Congress to take action against Apple's monopoly power:
Governor DeSantis emphasized free speech. There is an interesting phenomenon in U.S. politics with Section 230 (the rule that allows Big Tech to claim free speech rights for itself, but to silence others exercising them) and antitrust issues getting conflated by conservative politicians. My theory is that they know exactly what they are doing, but the Section 230 controversy gives them an excuse for supporting stronger antitrust enforcement in areas where they know it's needed. It bridges an ideological gap. Antitrust enforcement as a means of combating cancel culture.
Defendants of Sec. 230 argue that everyone remains free to express any opinion--but not free to actually reach a given social network's or other type of platform's audience. But that argument has one fundamental flaw: short of fictional mind control in George Orwell's 1984, where thoughts were potential crimes and the Thought Police used surveillance devices, no dictatorship has ever been able to completely supress opinions: one could always say something in the privacy of one's home. What matters, however, is the ability to actually share those thoughts with others. The Constitution is about limiting government's ability to censor, but if a reasonable application and/or limited amendment of the antitrust laws ensures that private companies can't engage in censorship the way they currently can, that is also in line with the spirit of the First Amendment.
Senator Mike Lee (R-Utah) has a very principled approach to antitrust. And he states very clearly on his website that he doesn't want politicians to give in to the "temptation in Washington to expand the federal government’s regulatory role over the private sector and attempt to centrally control our innovation." But he does "believe[] a responsible approach to technology policy is one where the federal government restrains itself to its limited constitutional authorities and even then only acts in a manner that is narrowly tailored to address the specific challenge." Well, the OAMA is such a narrowly tailored measure to deal with a particular problem.
Some media reported yesterday that Senator Lee tweeted in support of Elon Musk's criticism of Apple, but the related tweet is not from Senator Lee's verified and official account, so it may just have been a misattribution:
This is unacceptable, and makes the case for the Open App Markets Act. https://t.co/bhx5bImACZ
— Mike Lee (@BasedMikeLee) November 28, 2022
It would, of course, be great if Senator Lee indeed supported the OAMA. No matter the reason. We need the votes now.
The OAMA situation reminds me of my own political work. I only did a limited amount of lobbying (during limited periods from 2004 to 2007), and in my last project, which was about soccer broadcasting rights and the related revenue distribution, I built a majority for an amendment (sponsored by Chris Heaton-Harris, who is now the UK's Secretary of State for Northern Ireland) to a European Parliament resolution by presenting two different sets of arguments. In fact, I even authored two distinct position papers. Some voted for the amendment because they shared my economic policy position--but we wouldn't have had a majority if not for others who simply supported it for subsidiarity's sake (limiting the EU's influence over matters that are better addressed at the national level). I was perfectly transparent about that, and everyone was glad to see that others would support the same cause.
