The Senate removed the AI moratorium provision from the reconciliation bill in a 99–1 vote early Tuesday morning. Sen. Marsha Blackburn (R–Tenn.) and Sen. Maria Cantwell (D–Wash.) co-sponsored the amendment to eliminate the provision after Blackburn reneged on a compromise with Sen. Ted Cruz (R–Texas) to amend it over the weekend.
The Senate Commerce, Science, and Transportation Committee released the text of its original AI moratorium provision on June 5. This earlier version imposed a 10-year period during which $500 million of newly appropriated Broadband Equity, Access, and Deployment (BEAD) funding for “the construction and deployment of infrastructure for the provision of artificial intelligence models” could be withheld from states found “limiting, restricting, or otherwise regulating artificial intelligence models” by the commerce secretary. Last week, the Senate parliamentarian ruled that the moratorium satisfied the Byrd rule, which allows only budget issues to be considered in reconciliation text, after the committee specified that it would not condition all $42 billion of BEAD funding appropriated in the 2021 Bipartisan Infrastructure Law on the nonenforcement of state-level AI laws.
Still, intraconservative debates about the AI moratorium continued.
Blackburn did “not want the moratorium to apply to state laws affecting recording artists…and laws affecting child sexual abuse material,” explained the Institute for Law and AI. Sen. Rand Paul (R–Ky.) opposed the moratorium as federal overreach that compromises state-level experimentation in AI regulation, according to MarketPulse. Meanwhile, Cruz defended the AI moratorium as preventing states from “strangling AI deployment with EU-style regulation,” according to talking points put out by the committee, which he chairs.
The amended AI moratorium, agreed to by Blackburn over the weekend, conditioned the disbursement of the $500 million BEAD funding to states on their nonenforcement of “any law or regulation…regulating artificial intelligence models” for five years. States would still be allowed to enforce “generally applicable” laws, like those “pertaining to unfair or deceptive acts or practices, child online safety, child sexual abuse material, rights of publicity, [and] protection of a person’s name, image, voice, or likeness [that] may address, without undue or disproportionate burden, artificial intelligence.”
The Institute for Law and AI warned that the compromise’s “undue or disproportionate burden” language would “generate additional litigation [and] uncertainty” while failing to shield those laws Blackburn sought to protect. Neil Chilson, head of AI policy for the Abundance Institute, disagreed and argued that an expanded “generally applicable law” exemption would have made it more likely that those laws Blackburn sought to shield would have been protected.
Despite signaling support for the provision’s revised language on Sunday, Blackburn backed out late Monday night. Blackburn said, “This provision could allow Big Tech to continue to exploit kids, creators, and conservatives,” The New York Times reports.
The Blackburn-Cruz compromise represented “a much-needed measure that will help America address the growing patchwork of over 1,000 AI-related laws popping up across the nation,” said Adam Thierer, senior fellow for the technology and innovation team at the R Street Institute. Chilson tells Reason the elimination of the AI moratorium is disappointing but not surprising.
Now that the provision has been struck from the reconciliation bill, only time will tell if a patchwork of conflicting state-level regulations hamstrings the American AI industry. Though the moratorium provision has been defeated, Congress still “has a job to do to establish a federal framework that keeps the US open for innovation, and that work continues,” says Chilson.
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