The Regulatory Impact for Tech of Switching From Biden to Harris
Biden is out. Harris is in. Maybe it changes the outcome in November. But if you’re a venture capitalist or tech founder, does the change at the top of the Democratic ticket change how you will be regulated if Harris prevails?
Probably not. Most tech regulation takes place at the state and municipal level, not federal. When we think about politics, we think about Congress and the White House, so we tend to overvalue their importance. In reality, most tech products touch consumers either directly or indirectly, and in most cases, that’s the purview of state and local government.
There are a few areas where Washington does matter to tech regulation and within a few of those, there’s some possibility Harris could govern differently than Biden. For example:
Crypto: This may be the biggest area of potential variance. Biden, through SEC Chair Gary Gensler, could not have been worse for crypto. Not only were regulations decidedly anti-crypto at every turn, the SEC often refused to even provide any guidance to the industry on what is and isn’t legal. It’s hard to imagine anyone worse than Gensler, so whoever Harris picks as her SEC Chair has to be better (and given that Trump is aggressively embracing crypto, if Harris wants to compete for that demographic/ donor, she needs to stake out a very different position from Biden).
Antitrust: This is the other possible difference, not only between Trump and the Democrats but between Biden and Harris. FTC Chair Lina Khan has been very, very aggressive in opposing mergers and acquisitions and trying to break up big tech. VCs may disagree on her policies around Amazon and Google (I think regulating big tech is essential to allow for new innovation from early stage competitors) but her chilling effect on tech M&A overall is undeniable. Like crypto, simply installing her own FTC Chair would probably make Harris better than Biden in this regard. (While it seems that Trump would be friendlier to M&A activity, his economic populism and his choice of JD Vance may prove otherwise)
Defense, the FDA and Health Care: DoD is a major purchaser of new technology, some of which comes from defense tech startups. The FDA has to approve every new drug from every biotech startup. HHS and CMS broadly, alongside the states, set telemedicine policies. None of those changed radically from Trump to Biden and none are likely to change radically whether we go from Biden to Harris or Biden to Trump. DoD will keep buying stuff. The FDA will keep reviewing new drugs. Telemedicine will continue to grow. We can find variance in the edge cases, but that’s likely the extent of it.
Social media regulation: This one is interesting. Both Biden and Trump are on record calling for the repeal of Section 230, which protects social media platforms from any liability based on post by its users and creates the perverse incentive for Meta and others to promote the most toxic content possible. Neither President had any success whatsoever in repealing Section 230. Harris has not taken a firm position on repealing Section 230 (she’s said appropriate things about protecting kids but that only truly happens if 230 goes away) and her status as a Northern California politician may indicate some allegiance to the big platforms. So if you support social media reform, Harris may not be your savior. On the other hand, Harris presumably supports the current law requiring Tik Tok’s divestment while Trump has indicated he opposes the law (likely influenced by the economic needs of his donors and other personal considerations).
Artificial Intelligence: Biden issued an executive order around AI last October laying out some very broad concepts and parameters but essentially, his order did nothing. It had no teeth and was yet another indication that Washington is not going to meaningfully regulate AI for a long time to come (Washington has yet to regulate Internet 2.0; on the state level, however, over 800 bills were introduced last year to regulate AI and they’re just getting started). I think it is unlikely either Harris or Trump will do much around AI regulation. Nor will Congress. Everything we see over the next few years will likely be performative.
Bonus Category — Abortion: Abortion is generally not a tech issue but after Dobbs, tele-abortion (doctors in blue states prescribing abortion medication to women in red states) grew exponentially. Abortion is Harris’ most powerful issue and she could open up a new front on the campaign by aggressively supporting the right to tele-abortion (the Supreme Court recently upheld the ability to ship mifepristone nationally but only on procedural grounds so the issue is very much in question). That gives women in red states a personal, tangible reason to go out and actively support Harris, which could make a difference in places like Georgia and North Carolina, as well as three states where abortion referendums may meaningfully impact turnout: Nevada, Arizona and Florida. It may also expand the map a little and force Republicans to spend more in red states than they’d like to. It’s an issue worth exploring.
There are other areas of tech regulation where Washington has some influence but the issues above — crypto, antitrust, the FDA, defense tech, telemedicine, social media regulation and AI — are the most salient. And the reality is, other than crypto and maybe antitrust (and maybe the Tik Tok law), not only is there not likely to be much difference between Biden and Harris, there isn’t much difference between either of them and Trump.
By virtue of her age and hometown, Harris may be a little friendlier to tech than Biden, but it’s not likely to matter much. Tech regulation is local. At best, Presidents get to pass one or two truly transformational bills throughout their tenure, and neither Trump nor Harris will want to use their scant political capital on better tech policies. There are massive, fundamental differences between the two candidates — differences that very well may shape the course of the nation for decades to come — but tech regulation is not one of them.