Gallagher: ByteDance divestment bill can clear legal hurdles

Rep. Mike Gallagher, the lead author of new bipartisan legislation directed at TikTok, said that the bill isn’t intended to ban the popular app, but to disconnect it from China’s influence by forcing Beijing-based owner ByteDance to sell it — and is written to clear legal hurdles that have stalled previous efforts.

“This is not a ban. Think of this as a surgery designed to remove the tumor and thereby save the patient in the process,” Gallagher (R-Wis.) said at a press conference Wednesday discussing the bill, which gained momentum Tuesday night with backing from the White House.

Gallagher and Raja Krishnamoorthi (D-Ill.) — the chair and ranking member of the House Select Committee on the Chinese Communist Party — introduced the measure on Tuesday. It would force the divestiture of TikTok over claims its owner, ByteDance, has ties with the Chinese Communist Party. If the sale doesn’t happen within about six months, the bill calls for the app to be blocked on U.S. app stores and websites.

Michael Beckerman, TikTok’s head of public policy for the Americas, disputed Gallagher’s claims the bill wasn’t a TikTok ban bill. “They can try to dress it up however they want, but this is a bill to ban Tiktok and give unprecedented power to take apps off your phone,” he told POLITICO. He also said ByteDance has no ties to the Chinese Communist Party.

White House backing: The legislation got the endorsement of the Biden administration Tuesday night, with a statement from the NSC spokesperson saying it was “an important and welcome step” to address the risks that ByteDance’s ownership poses to Americans’ sensitive data and national security.

Gallagher told reporters he thinks the bill has a path forward and that he has been working with the administration for six months to ensure the legislation holds up constitutionally. He also said the bill is his top priority during his last few months before retiring from Congress.

He said he’s learned from past mistakes in failed legislation last year that sought to ban TikTok outright, as well as the effort by former President Donald Trump to ban the app, which was blocked by a judge for exceeding his legal authority.

Avoiding ‘legal buzzsaw’: The legislation gives the president authority — after notifying Congress — to require divestment of an app if it is determined to be controlled by a foreign adversary, or face a ban on U.S.-based app stores or web hosting sites.

The bill claims ByteDance fits this criteria. It only applies to apps controlled by China, Russia, Iran and North Korea, according to a Select Committee aide.

“It's an executive/legislative collaboration that draws upon not only previous failed efforts legislatively, but also the experience of the Trump executive order, which did run into a legal buzzsaw,” Gallagher said.

One hurdle to app bans is the 1988 Berman Amendment, which prohibits the president from banning “informational materials” internationally. Gallagher said he didn’t expect the Berman Amendment to be an issue for his bill. “We had outside legal analysis of that and we had executive branch analysis of that,” he said, “and I think we're beyond that concern.”

TBD on Senate: Gallagher told reporters he’s gotten “a lot of outreach from senators” after they introduced the bill.

“I’m cautiously optimistic that we'll have a really good core group of support from the Senate,” he said.

Sen. Mark Warner (D-Va.), the lead Senate author of the RESTRICT Act, which would give the administration more authority to block apps owned by a foreign adversary, in part by amending the Berman Amendment, said in a statement that he’s still reviewing the bill.

Warner said he still has concerns about the constitutionality of an approach that names specific companies, like ByteDance.

Gallagher said the bill has undergone constitutional legal scrutiny and doesn’t violate the Constitution’s ban on “bills of attainder” that punish a specific individual person or group of people.