Congress Trying To Sneak Through Internet Link Tax To Funnel Cash To Private Equity Firms That Are Destroying Local Journalism

Congress has a bad habit. They have stopped passing substantive legislation through normal procedure, debate and votes. The legislative process as designed by our Founders is not happening. Instead, Congress is saving most of its actual policy-making legislation for large end-of-the-year bills that can combine hundreds of separate pieces of legislation. And if reports are accurate, we could be shaping up for the granddaddy of them all this December. This process must change, particularly for bills as highly controversial and constitutionally concerning as the misleadingly named Journalism Competition and Preservation Act (JCPA).

The inclusion of controversial and poorly vetted legislation in these mega legislative packages is nothing new. In 2020 as lawmakers rushed off to their winter holidays, Congress included language in must-pass COVID relief that made unauthorized commercial streaming a felony that could lead to ten years in jail. Another controversial and likely unconstitutional small claims copyright tribunal was created at the same time, resulting in a colossal waste of time, money and resources. The CASE Act had only one hearing that had no witnesses from outside industry before inclusion in must-pass lame duck legislation.

This is a terrible way to make sound public policy.

This year, the Journalism Competition and Preservation Act (JCPA), is taking the lead as one of the most troubling riders being considered for the end of this Congress. This legislation uses antitrust law to circumvent constitutional guardrails for freedom of speech within copyright law, will boost the hedge funds and big media corporations already hurting local news, and would force Internet platforms to carry and pay for even the most extreme and false content coming out of news" organizations.

Despite an outpouring of opposition from twenty diverse organizations - ranging from small publishers, civil society groups, and copyright law experts - and significant concerns raised by bipartisan Senators at the markup, there has not been sufficient public discussion of the harmful, reverberating impacts the JCPA would have on local news and the online information landscape. Flouting legislative debate and regular order is bad enough. It's even worse when prospective legislation like the JCPA violates the Constitution and is poised to overhaul how consumers access information online.

Since massive media conglomerates like Gannett and Alden Global Capital stand to reap a financial windfall if it passes, it's no surprise that the JCPA was drafted in conjunction with these conglomerates' lobbyists behind closed doors. This insular process resulted in the bill's language only being shared the day before a Senate markup and many Senate Judiciary members also raised serious concerns about the JCPA's constitutionality and its intentional beneficiaries: massive media conglomerates.
Additionally, the process purposely turned a blind eye and ignored the many more structural problems facing local news. An FTC discussion draft on the issues facing local journalism found that the approach being taken by the JCPA is ill-advised.

So far, the legislative process surrounding the JCPA has been opaque. What is clear, however, is that massive media conglomerates' fingerprints are all over it. Despite the best efforts of hedge funds and umbrella corporations like Gannett and Alden Global Capital to force this through Congress, there are numerous policymakers willing to acknowledge the JCPA's expansive unintended impacts. Now, it's time for Congress as a whole to recognize that legislation as controversial and constitutionally concerning as the JCPA deserves careful consideration on its own. If the JPCA cannot stand on its merits alone, then Congress should not include it as a rider on end-of-year legislation.

Josh Lamel is the Executive Director of the Re:Create Coalition.