The inclusion of a proposed 10-year moratorium on state-level artificial intelligence law enactment and enforcement in U.S. Congress' reconciliation bill enjoyed narrow but mostly uncontentious support when it passed the House of Representatives 22 May. There are growing indications the moratorium will not encounter the same smooth sailing in the Senate, which is scheduled to take up its reconciliation work over the coming weeks.
The Senate's work is expected to begin this week with draft text submissions from committees, according to Politico. It would be a surprise to see draft text emerge from the Senate Committee on Commerce, Science and Transportation without the moratorium, which Committee Chair Ted Cruz, R-Texas, floated as a concept during an 8 May committee hearing on AI before the House included it in reconciliation.
"I think it’s terrific policy,” Cruz told Privacy Daily ahead of Senate consideration. “It’s something I have vocally advocated. It will surely be challenged under the Byrd rule, and it’s not clear it would survive that challenge in the Senate or not."
The Byrd Rule allows the Senate Parliamentarian to remove reconciliation bill provisions deemed "extraneous" and having no connection to the proposed budget.
House consideration of the AI provision was spurred by unity among the Republican majority. That will not be the case in the Senate, as bipartisan opposition is already surfacing and jeopardizing the moratorium's odds of making it into the final bill.
Mounting objections
The public opposition in the Senate first came from Republicans, with U.S. Sens. Marsha Blackburn, R-Tenn., and Josh Hawley, R-Mo., speaking out in the hours before the bill advanced out of the House. Blackburn was specific with her criticism, citing the negative impacts the moratorium would have on her constituents that are covered under Tennessee's AI law pertaining to proprietary rights over voice and likeness.
"We certainly know that in Tennessee we need those protections," Blackburn said during a 22 May Senate committee hearing. "And until we pass something that is federally preemptive, we can’t call for a moratorium."
Sen. Mike Rounds, R-S.D., told Privacy Daily he supports the policies in the AI provision, however, he is "not confident" the moratorium will survive the Byrd Rule and "if the parliamentarian says it doesn’t fit, then it doesn’t fit."
More recently, Senate Democrats have begun chiming in on the viability of the moratorium.
The reconciliation bill requires a simple majority vote for passage in the Senate, meaning the Democrats are at a disadvantage even with expected unanimity among the minority. However, Sen. Jeff Merkley, D-Ore., offered confidence about a straight removal of the moratorium in a recent NPR interview.
"I think that's likely to come out as well. And we see that when Democrats have used reconciliation, the reverse has occurred," Merkley said, referring to a Republican challenge and subsequent block of insulin caps in a 2022 Democratic-led reconciliation bill.
Sen. Ed Markey, D-Mass., took to the Senate floor 3 June to specifically call attention to the moratorium, characterizing it as "quite shocking" and means to "tie the hands" of governors and state legislatures from addressing potential AI harms in the absence of federal intervention.
"This provision would be devastating for our country," Markey said, alluding to the harms unregulated AI could bring to children, the elderly and other vulnerable groups. "This is a recipe to repeat the failures from the last decade. Our failure to hold Big Tech accountable for its abuses."
Markey also raised how the states themselves do not want their legislative power removed. He called attention to recent bipartisan opposition letters from 40 state attorneys general and 260 state lawmakers.
"They've moved to protect young people online, secure consumer privacy and confront algorithmic bias," Markey said. "This provision in the bill would erase this progress. It would roll back years of hard-won protections and prevent future action just when it's needed the most."
House hindsight
And while the bill sits with the Senate, the potential House Republican fragmentation could impact its fate.
The Senate's planned revisions to the bill will require it to return to the House for concurrence. Sending the bill back to the lower chamber with the moratorium intact may prove costly now as Rep. Marjorie Taylor Greene, R-Ga., indicated she will not approve AI provisions after admitting she had no knowledge of the moratorium's inclusion in the bill when she voted 22 May.
"I am adamantly OPPOSED to this and it is a violation of state rights and I would have voted NO if I had known this was in there," Greene said on the social platform X. "We have no idea what AI will be capable of in the next 10 years and giving it free rein and tying states hands is potentially dangerous."
House Democrats remain steadfast in their opposition and are not likely to suddenly support the moratorium in a concurrence vote. House Committee on Energy and Commerce Ranking Member Frank Pallone, D-N.J., took time at a 4 June Energy and Commerce subcommittee hearing to reemphasize Democrats' stance and support for Congress to begin "learning from what states are doing."
"This provision, included in the budget reconciliation, is nothing more than a giant gift to Big Tech," Pallone said. "Republicans want to ban the enforcement of all these state laws with absolutely no national bill ready to go to address these concerns. Instead of enriching Big Tech, we should be working towards strong federal legislation to govern and guide the development of these powerful AI systems, which are rapidly being incorporated into more and more aspects of our everyday lives."
Joe Duball is the news editor for the IAPP.
