Sen. Maria Cantwell (D., Wash.), the head of the powerful Senate Commerce Committee whose former senior aides work for TikTok, is throwing cold water on the bipartisan House bill targeting the Chinese-owned app, saying she thinks it is likely to be struck down in court if it becomes law.
Sen. Cantwell told reporters Monday night that the bill requiring TikTok’s China-based parent company, ByteDance, to divest from its American operations or face a ban, "could be better." In particular, Cantwell said the House bill might not stand up to legal scrutiny if passed.
"But you also can’t, as a Congress, just decide one day, ‘Ah!’ And pass a law. Well, you can, I just don’t know if it’ll hold up in court … Let’s get something that can be upheld," said Cantwell.
Cantwell’s criticism comes as senators express concern that her slow approach will give TikTok time to rally lawmakers against the bill. As chairwoman of the Senate Commerce Committee, Cantwell has jurisdiction over the bill, but her ties to the app have drawn scrutiny. In particular, several of Cantwell’s former senior aides are now working for TikTok as it lobbies lawmakers to kill the legislation.
Cantwell's former deputy chief of staff, Rosemary Gutierrez, is a lobbyist for TikTok through Mehlman Consulting, the firm she joined roughly one year after leaving Cantwell's office in 2020. The Washington Democrat's former chief of staff, Michael Meehan, left Cantwell's office to launch Squared Communications, a consulting firm that is working for TikTok. And Kim Lipsky, who worked as the Commerce Committee's staff director under Cantwell, is on TikTok's payroll as a government relations staffer. Last year, Lipsky contributed $1,500 to Cantwell’s reelection campaign, while TikTok’s senior director of tech policy and senior counsel, Lisa Hayes, contributed $500.
A constitutional law firm that analyzed the legislation disagrees with Cantwell’s claim that the bill might not stand up to legal scrutiny. A memo released by Cooper & Kirk found that the divestment bill "is consistent with the United States Constitution." The firm also found that the House bill "regulates conduct—the foreign ownership of a covered platform—not speech, so the First Amendment likely does not apply."
Cantwell also suggested that it should be up to the executive branch, not Congress, to determine what constitutes a threat that requires action, taking a swipe at House Republicans for being hesitant to give the executive branch more authority.
"But the House, in this world of Trumpisms and everything else, is worried about giving anybody [the White House, the Commerce Department] that authority."
On Friday, Senate majority leader Chuck Schumer (D., N.Y.) said that lawmakers can make progress "on a path forward on TikTok legislation." And on Monday, Senate minority leader Mitch McConnell (R., Ky.) backed the divestment bill, warning that Chinese ownership poses a serious national security threat.
"America’s greatest strategic rival is threatening our security right here on U.S. soil … in tens of millions of American homes. I’m speaking, of course, about TikTok," McConnell said. He added that "this is a matter that deserves Congress’ urgent attention," and that he’ll "support common sense, bipartisan steps to take one of Beijing’s favorite tools of coercion and espionage off the table."
Cantwell’s skeptical approach to the bill stands in sharp contrast to her colleagues’ calls for action. As a bipartisan group of senators emerged from a classified briefing on TikTok last month, Republican and Democratic senators alike sounded the alarm about the threats posed by the social media app. Sen. Richard Blumenthal (D., Conn.) called the app "a gun pointed at Americans’ heads," while Sen. Ted Cruz (R., Texas) added that "there was deep concern about the threat of TikTok from both sides of the aisle," and called on the Senate to "expeditiously" advance the legislation.