Senate Commerce Rejects Plan to Study Impact of First Amendment Violations on Investment

Markey’s amendment to S-2563 would have required the bill's proposed Commerce Department study, which would look at ways to increase foreign direct investment in U.S. companies, to examine how federal government actions that undermine the First Amendment could affect foreign investment in the U.S. Markey said his amendment, which also would have studied the impact of federal actions undermining “independent oversight” of federal agencies, is necessary partly because of Carr’s September comments against ABC and parent Disney, which were widely perceived as influencing the network’s since-reversed decision to pull Jimmy Kimmel Live! from the air (see 2509180055).

“I support the intent behind [S-2563], because foreign investment is an important part of the U.S. economy, and it makes sense to examine whether the [U.S.] is an attractive destination of foreign capital,” Markey said. But Commerce’s proposed study “cannot ignore the elephant in the room: the Trump administration's chaotic economic policies and its ongoing attack on the rule of law, which undermine foreign investor confidence in” the U.S.

“Actions that chill speech [and] intimidate journalists erode First Amendment protection [and] signal institutional fragility, the very risk foreign investors seek to avoid,” Markey added. That risk has “skyrocketed“ in the U.S. "From Carr's mafia boss threats against the media to Trump's firing of inspectors general, this administration has repeatedly sought to shut down dissenting voices across the country.” Foreign “investors weigh not only tax rates of labor costs, but also whether a nation's political climate respects transparency, accountability and independent oversight,” he said.

Senate Commerce Chairman Ted Cruz of Texas and all 14 other panel Republicans voted against Markey’s amendment. It was “not intended to improve or to add any practical value to” S-2563, Cruz said. “Instead, this amendment is meant to criticize the Trump administration over” the Kimmel incident. All 13 Commerce Democrats voted for the amendment.

Cruz didn’t mention his earlier opposition to Carr’s comments (see 2509190059) but emphasized that he supports “free speech regardless of which party is attempting to interfere with it.” However, “the Trump administration is not the first administration that has been less than fully supportive of free speech,” he said. Democrats “have spent years trying to deplatform Americans and broadcasters they disliked,” including with a 2018 letter from Senate Commerce ranking member Maria Cantwell of Washington and 11 other Democratic senators asking then-FCC Chairman Ajit Pai to review Sinclair's fitness to maintain its broadcast licenses (see 1804120026).

Senate Commerce “has already held one hearing on government censorship in the First Amendment, and we will be holding more hearings in the coming weeks,” Cruz said. The committee is eyeing a November FCC oversight hearing that will likely feature most panel Democrats criticizing Carr over the Kimmel incident (see 2510020041). Cruz again said he will soon be “introducing legislation to prohibit” future instances of government-launched secret censorship campaigns “and to empower Americans to vindicate their constitutional rights.” He said Markey “will soon have an opportunity to support my legislation, to put action behind his words,” but the S-2563 amendment “is not furthering the bipartisan objectives of this legislation.”

Amendments Agreement

Senate Commerce members were far more aligned on S-2666, which would direct the FCC to create a public-private task force to recommend new methods “to combat unlawful robocalls made into” the U.S. from outside the country. The task force would also examine whether creating a robocall-focused office within DOJ would improve the department’s ability to conduct enforcement against unlawful robocalls.

“With advances in technology, illegal robocalls are being made from all over the world more cheaply than ever,” Cruz said. “It is high time that we protect Americans, especially seniors, from these annoying and unwanted attempts to bilk them out of their money.” Cantwell agreed that it’s “very important” that the FCC “establish a public-private interagency task force on these unlawful foreign robocalls.”

Markey was successful in modifying S-2666, as Senate Commerce unanimously adopted four amendments he led or co-sponsored. One of them removed a requirement that the robocall task force study whether coordinating on technologies and incentives to combat unlawful robocalls outside the U.S. can also inform strategies to combat similarly situated illegal robotexts. Another proposal directed the task force to study whether requiring public disclosure of tracebacks “would impact the integrity and effectiveness of the trace back process.”

Senate Majority Leader John Thune, R-S.D., and Markey also attached language from their Robocall Traceback Enhancement Act that would provide legal immunity for the FCC's registered robocall traceback consortium for publishing traceback information. Another amendment, led by Markey and Ben Ray Lujan, D-N.M., would require all telephone companies registering with the FCC’s robocall mitigation database to post a $100,000 bond.