Thune’s ‘Gag Clause’ Bill To Get Committee Vote Next Week

The Senate Commerce Committee is expected to move forward on a bill that would prohibit companies from suing or fining customers who post bad reviews of them online.

Despite the Senate’s crowded year-end schedule, Thune is hopeful it could make it to the floor this year. The committee is scheduled to mark up the bill next Wednesday, where it is almost certain to pass.

“We’ll hopefully try and move this bill so it’s on the floor and try and get some action there,” Chairman John Thune (R-S.D.), the sponsor of the bill, said at a hearing last week.

Although the Senate still needs to consider a highway bill and a government spending package, leadership could look for smaller, bipartisan bills to fill up floor time before more complicated legislation hits the floor. It also doesn’t hurt that Thune also serves as Chairman of the Senate Republican Conference and holds the third highest position in Senate Republican leadership.

Bipartisan bills funnel through the Commerce Committee often. Fourteen bills that went through committee have passed the Senate in this Congress. Six of those went on to become law.

The bill, S. 2044, would void any clause in a contract that bars consumers from posting poor reviews of a company.

Customers can get hit with fines and protracted legal cases due to these clauses that say a company can take legal action if the customer does anything to hurt their reputation or bottom line.

Many lawmakers and advocates worry that allowing the practice to continue could lead to fewer people reviewing companies online, which would hurt not only consumers but the market as well.

“Not only are consumers harmed, but other businesses who want to play by the rules and want a level playing field are also harmed by the existence of gag clauses that distort the market,” Adam Medros, Trip Advisor’s Senior Vice President for Global Product said at a hearing on the bill last Wednesday.

Thune has reason to be optimistic of this bill’s chances as well, which has six cosponsors from both parties who all sit on the committee with Thune.

Commerce Committee ranking member Sen. Bill Nelson (D-Fla.) joins Sens. Claire McCaskill (D-Mo.), Brian Schatz (D-Hawaii), Jerry Moran (R-Kan.), Richard Blumenthal (D-Conn.) and Steve Daines (R-Mont.) as cosponsors.

Senators’ lines of questioning hinted at an easy committee passage for the legislation as they took turns condemning businesses that include these non-disparagement clauses in lengthy terms and conditions agreements that catch consumers. Both senators and panelists pressed to put an end to it.

Nelson brought up the only concern of the hearing. He questioned if the bill could hinder businesses from taking action against customers who leave inflammatory false reviews.

Thune said anti-defamation cases would be protected under the bill, and panelists agreed the bill would not endanger companies’ legal protections.


Morning Consult