- - Friday, September 30, 2022

Bipartisan. It is an odd word, seemingly seldom exercised. Some would say it is an endangered species, but one current U.S. Senator is leading the effort for an ongoing bipartisan exercise by the full Congress. Before we dig into that, a little history may be in order.

On January 22, 1973, the Supreme Court struck down a Texas statute banning abortion and in doing so, declared abortion was a right guaranteed by the 14th Amendment to the United States Constitution. Prior to their finding, abortion had been expressly declared legal in only four states, Hawaii, Alaska, Washington and New York. As a result of the high court’s decision, it became legal in all fifty states.  

The Supreme Court’s declaration did not mean all Americans agreed. In the early years, a clear majority of Americans were opposed to abortion, most on moral or religious grounds. Recognizing the moral dilemma of the government funding something so many Americans passionately opposed, Congress developed and passed what became known as the Hyde Amendment. 

Named for one of the amendment’s most vocal champions, Congressman Henry Hyde, the amendment prohibited federal funding of abortions. The amendment was attached to the Health and Human Services appropriations bill and as a result, had no option but to be passed. Intended as a compromise of sorts, the Hyde Amendment recognized that the judicial branch had found abortion to be legal, but also recognized it was highly controversial and the government should stay out of funding the abortion business. Including the Hyde Amendment became an annual tradition for more than forty years with little or no discussion. 

To put that in perspective, there have been eight United States presidents since the Hyde Amendment was originally passed in 1976. Four were Republicans. Four were Democrats. President Jimmy Carter, a Democrat, supported the Hyde Amendment through legal challenges all the way to the Supreme Court. President Clinton, also a Democrat, verbally opposed the Hyde Amendment during his first campaign but signed it into law each year. Presidents of both parties have signed it into law year after year. 

In general terms, the Hyde Amendment served as a testament that the two parties could find common ground, could agree to disagree on certain aspects and yet recognize the government could stay above the fray. Not everyone liked it. Not everyone agreed, yet year after year it became law and in doing so, served as continuing proof that bipartisan agreement can be achieved when it is for the greater good. 

Oh sure, there are examples over the years, particularly on the Senate side, of bipartisan efforts. In the 1980s Colorado Sen. Gary Hart, a Democrat, and Maine Sen. Bill Cohen, a Republican, were known to collaborate on the creation of good law. (Cohen would later serve as the poster boy for bipartisanship, becoming Secretary of Defense for a Democrat President). In 2021 Sen. Maggie Hassan of New Hampshire was recognized for her efforts to reach across the aisle. While she is a Democrat, she managed to find at least one Republican co-sponsor for all 48 of the Senate bills she introduced. 

Often such cooperation is relegated to trivial matters. This year a Democrat senator from Wisconsin, Tammy Baldwin, joined with Republican senator from Maine, Susan Collins, to introduce a bipartisan resolution. The subject? National Loggers Day. Occasionally, however, something bigger brings the parties together. 

One of the big issues of 2022 is that Big Tech has developed an effective monopoly over the way news content is distributed online and, in turn, is able to control what news Americans can see. On September 8, 2022, during the Senate Judiciary Committee Business Meeting on the Journalism Competition and Preservation Act (JCPA), Texas Sen. Ted Cruz, a Republican, expressed concern about the persistent and ongoing pattern of censorship that in his view, only seems to target conservative voices. Mr. Cruz conditioned his support for JCPA on the inclusion of meaningful protections and prohibitions against censorship. The bill is intended to let newspapers and broadcasters work with other newspapers and broadcasters to negotiate with big tech outfits like Google on revenue streams. Mr. Cruz was concerned that it would also allow Big Tech and the media to negotiate on content.

The conservative firebrand spent weeks discussing and negotiating with other senators and was able to secure protections to prevent censorship. Specifically, the bill now protects against content moderation and censorship by limiting the bill’s antitrust exemption only to discussions of pricing terms while explicitly excluding any discussions or agreements between Big Tech and media outlets that concern content moderation. Mr. Cruz worked closely with Democrat Minnesota Sen. Amy Klobuchar in the effort to limit the power of the Facebooks and Googles of the world. 

The inclusion of language that prohibits online censorship by Big Tech is a landmark accomplishment. The language specifically bars content negotiations and bars them from being protected by the bill’s antitrust exemption. It took senators and staff from both parties to achieve and required a vision beyond typical partisan politics. 

The question and indeed the opportunity is if the “Cruz Amendment” will be accepted by the Senate as the model for future bills that will safeguard free speech online. Essentially, it could serve as the first step toward the creation of a “Hyde Amendment” of sorts for Big Tech legislation. At the very least, Mr. Cruz’s efforts give future legislators a starting point to make sure that Congress protects free speech as it works to regulate the tech giants.

  • Tim Constantine is a columnist with the Washington Times.

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