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Jan. 8, 2020, 12:05 p.m.

Don’t expect McConnell’s Paradox to help news publishers get real money out of Google and Facebook

Republicans and Democrats are (surprisingly!) teaming up to help news organizations negotiate with the tech giants. But it’s unlikely to have a substantial impact on the dysfunctional relationship between publishers and platforms.

In political science, Fenno’s Paradox holds that Americans generally hate Congress — but tend to like their own local member of Congress.

In media, there’s no fancy name for it, but it’s well established that people generally hate “the media” — but tend to like their local newspaper just fine.

Mash those two together and you can create a third rule of thumb: Members of Congress love to talk about how much they hate “the media” — but they tend to be happy to send a little legislative help to their local newspapers back home.

Call it McConnell’s Paradox.

Senate Majority Leader Mitch McConnell has agreed to cosponsor a bill that offers antitrust relief to American newspapers (and other news publishers) who want to negotiate en masse with Google and Facebook. Here’s Bloomberg:

The Kentucky Republican added his support to the bill on Monday, according to Congress’s website. The legislation would grant publishers a four-year exemption from antitrust laws so they could negotiate financial terms with the tech giants that often serve as a gateway for readers and online advertisers.

McConnell’s support arrives as the companies increasingly come under fire in Washington on issues ranging from privacy to election interference. They have also been accused of controlling too much of the advertising market, to the detriment of news outlets who rely on the companies to reach advertisers and their audiences.

The bill, which has seven Senate supporters in total, was introduced by Senators John Kennedy, a Louisiana Republican, and Amy Klobuchar, a Minnesota Democrat. A companion measure in the House was introduced by the chairman of the antitrust subcommittee, Democratic Representative David Cicilline of Rhode Island, and the Judiciary Committee’s top Republican, Representative Doug Collins of Georgia.

Last month, two additional senators, Cory Booker, a New Jersey Democrat, and Rand Paul, a Kentucky Republican also signed onto the legislation.

Who would have thought it’d be an issue around media regulation that brought all these D’s and R’s together? Especially at a time when opinions about the media are one of the clearest fissures between left and right, anti-Trump and pro-Trump.

You’ve got a few factors converging here.

First, you don’t have to be much of a cynic to note that every member of Congress has newspapers back home, and that a lot of them make endorsements in congressional races.

American newspapers have been historically quite successful at getting carveouts in the law that benefit their businesses. They’ve gotten themselves declared exempt from sales taxes, encoded inflexible requirements for legal advertising in law, and benefitted from substantial postal subsidies.

You can argue that these are civic-minded, policy-driven state subsidies of important local information sources. Or you can argue they’re the spoils of the political power that comes with influential endorsements. You pick! But either way, it’s not hard to imagine why a Rand Paul — he of “Rand Paul literally flips off media after debate firestorm” and “Rand Paul and the media: No love story” headlines — would be willing to get on board.

(Actually, he’s proposed ending all antitrust enforcement, so this isn’t out of character for him.)

Second, disdain for the tech giants has become an oddly bipartisan affair, if not always for the same reasons. On the left, Elizabeth Warren wants to break up Google, Facebook, Amazon, et al.; on the right, Josh Hawley thinks that maybe they should just be stricken from the face of the earth. So a bill that pushes back against Big Tech is in everybody’s sweet spot.

What would the bill do? Here’s the Senate text. It defines “news content creator” broadly (“any print or digital news organization that (i) has a dedicated professional editorial staff that creates and distributes original news and related content…(ii) is commercially marketed through subscriptions, advertising, or sponsorship”). So if we buy a few Facebook ads promoting this story, Nieman Lab counts.

But it defines “online content distributor” — the bad guys — narrowly (“any entity that (a) operates a website or other online service that displays, distributes, or directs users to news articles, works of journalism, or other content on the internet that is generated by third-party news content creators; and (b) has not fewer than 1,000,000,000 monthly active users, in the aggregate, of all of its websites or online services worldwide”). A billion MAU is a big number; that’d include Google, Facebook, and (depending on how you interpret “online services”) maybe Amazon, Apple, and Microsoft.

The bill gives those publishers a four-year exemption from antitrust laws “for engaging in negotiations with any other news content creator…to collectively withhold content from, or negotiate with, an online content distributor regarding the terms on which the news content of the news content creator may be distributed by the online content distributor.” For that exemption to hold, the terms they negotiate must be “available to all news content creators” — so newspapers can’t work out a deal just for themselves that wouldn’t also apply to Bustle — and “nondiscriminatory as to similarly situated news content creators.”

So publishers could get together and say: “Hey, Google [or Facebook] — you suck. You need to pay us $X to include us in Google News or Google Search [or the News Feed or the News Tab or Watch]. And if you don’t, we’ll all withhold our content from you.”

To which a tech company could then say: “Sorry, we’re just organizing the world’s information to make it universally accessible and useful [giving people the power to build community and bring the world closer together]. We don’t pay every site on the Internet for the privilege; indexing web pages and displaying headlines are both definitely fair use. Get behind a hard paywall if you want off the open web, byeeeee.”

Based on Google’s experience in Europe, it’s hard to believe either company’s response would be anything different. (Oh, and they might throw a few million bucks the industry’s way, too, for “innovation.”)

Is the threat of a bunch of news sites going Benedict Option on Google and Facebook in unison credible? Even if every single newspaper in America agreed to — would local TV stations? Would BuzzFeed or Vox Media or Vice? How about CNN, Fox News, or ABC/NBC/CBS News — each part of giant conglomerates that do lots of business with Google and Facebook in lots of different ways? Would The Washington Post or The New York Times, which have built successful subscription models happy to take in lots of top-of-funnel traffic? How about NPR, other public media, or nonprofit outlets that either don’t run advertising or don’t rely on it heavily?

No matter how many major publishers stepped away, surely there’d also be lots who’d see “suddenly being a top source of news on Google” as an attractive proposition. And almost by definition, people who get a lot of their news via Google and Facebook are people who don’t have a lot of loyalty to any particular news brand. Would they miss those publishers when they’re gone?

Publishers today get around 85 percent of their external traffic from Google or Facebook, and around 40 percent of all traffic. Is everyone going to be okay giving all that up as a sort of ersatz mass labor action? Any news site that doesn’t want to be on Google can deindex itself today; they don’t.

I get it — publishers want to put pressure on the guys with the money, and this is one more arrow in their quiver to do that. The bones that Google and Facebook have thrown the industry’s way — not particularly meaty ones, mind you, but bones nonetheless — have come as a direct result of government and industry pressures in Europe and the companies’ concomitant desire to head off similar pressures back home.

But the reality is that news content isn’t nearly as important to Google and Facebook as publishers think it is. Only about 1 in every 25 News Feed posts contains any “news,” defined broadly. Google’s ad dollars come from people’s searches about products, not Iran or Trump. A news product can be useful to tech companies as a way to keep some users coming back. But there’s a reason that Facebook’s new News Tab is hidden behind a bunch of taps and submenus — it’s just not core to their business.

So even if an antitrust exemption for news is what ends up bringing all of Congress together for a few hours of Kumbaya, don’t expect it to make much of a difference in the long run. Maybe that’s the real McConnell’s Paradox: The issues that draw surprising bipartisan support are often the ones that won’t have much of an impact.

Photo of Mitch McConnell by Gage Skidmore used under a Creative Commons license.

POSTED     Jan. 8, 2020, 12:05 p.m.
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