As United States heads into Christmas season, advocates for technological freedom will have one less victory to celebrate this holiday season. On Tuesday night, Punchbowl News reported that the AI moratorium is dead—again. Congressional leadership once again insists this is not the end of the road for the AI moratorium—because if it were, they would quickly run out of pavement to kick the can down.
Maybe Congressional leadership is right. Maybe putting such consequential, controversial legislation in end-of-year, must-pass National Defense Authorization Act (NDAA) was just the wrong legislative vehicle. Maybe. But the problem only gets more problematic and more difficult to solve the longer the AI patchwork is left to metastasize.
If you don’t believe me, just look at how Congressional hearings played out in the House Energy & Commerce committee earlier that same day. In that much anticipated hearing, House E&C heard 19 bills on legislative solutions to protect children and teens online. Congress once again stumbled over how to craft federal legislative language to pre-empt state-level laws, this time on social media regulation.
Before the AI moratorium debates and before the state onslaught of state social media laws, the same ugly issues plagued the privacy wars—stopping federal efforts in their tracks. Despite broad bipartisan agreement, Congress debated a national, pre-emptive, federal data privacy framework for more than two decades, but Congress squandered that rare bipartisan opportunity by waiting too long. By the time federal debates became serious, state laws were entrenched—especially the California Consumer Privacy Act (CCPA). Unable and unwilling to override California’s privacy law with broadly pre-emptive language, federal debate stalled and state privacy policy remains a mess to this day.
This 25-year pattern of Congressional self-destruction is about to get worse. Instead of one theme where states abstractly agreed on principle (e.g. data privacy), in the intelligence era policy debates span a much broader spectrum of policy disagreement: liability, bias, transparency, safety, and general business pricing, not to mention many sector-specific state AI regulations on everything from insurance to healthcare to education. Earlier this October, the California legislature alone passed 18 AI bills.
The demise of the AI moratorium will be seen by many as vindication of the widely held belief that states must act because the swamp is too dysfunctional and too polarized to get anything meaningful done. Others will see it as an opportunity to give policymakers inside the beltway ideas for a federal standard. Here’s how New York Internet and Technology Committee Chair Kristen Gonzales described it: “[States] really have a mandate now to use our power that we protected as states to regulate this technology and be idea beds for what could become comprehensive federal legislation.”
It’s not just states that likely feel emboldened—it will soon be cities too. Soon-to-be Mayor Zohran Mamdani’s decision to appoint anti-market, anti-tech crusader, Lina Khan, to co-chair his transition team has opened the floodgates for advocates of all kinds to map out heavy-handed proposals to regulate technology at the city-level in leading technology policy publications.
If Congressional leadership is seriously considering future legislative vehicles where the AI moratorium may fit, that would be commendable—but it is still a mistake to not strike while the iron was hot and find a way to include it in the NDAA.
With more than 1,100 AI bills under consideration in statehouses across the country, as Congress continues to kick the can down the road, existing state AI laws will become more entrenched and new ones will emerge. Opposition will fade from some of the most well-connected companies and industries as they lobby and receive carveouts in state AI laws. Voter opinions will calcify as politicians make promises they cannot keep. And opponents to the moratorium will be united by their opposition to the idea, instead of their support for a better path forward. By the time it’s all said and done, political inertia will be too strong to overcome, and the AI moratorium will have died the death of 1,100 statehouse cuts. The political window for the AI moratorium is rapidly closing.
Logan Kolas is the Director of Technology Policy at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, follow us on X @ConsumerPal.