TikTok goes all-out in Washington with its U.S. survival at stake

The Chinese-owned social media platform TikTok is battling a potential U.S. ban with the signature tools of American democracy — lawyers, lobbyists and money.

TikTok has deployed Washington power brokers and $1,500-an-hour attorneys to fend off a new law barring the app unless its Beijing-based parent, ByteDance Ltd., divests. With a $4.8 million ad campaign, a full-court press on Capitol Hill and the U.S. Constitution, TikTok is in a multifront fight for its survival.

“They’re out in full force,” said Joel Thayer, a Republican lawyer who helped push the legislation, arguing the company’s data collection and ties to the Chinese government make it a national security threat. “It’s end-of-life for them. It’s a very well-orchestrated play.”

TikTok’s fate rests in part with U.S. courts after it sued to overturn the law signed by President Joe Biden forcing ByteDance to sell the app by Jan. 19 or be barred from operating in the U.S. The government’s response is due Friday ahead of oral arguments in September, and the company is prepared to take its case to the Supreme Court.

With more than 170 million monthly U.S. users, TikTok has a lot at stake. A ban would exclude ByteDance from the world’s most lucrative advertising market and give an immediate boost to rivals like Meta Platforms Inc.’s Reels or YouTube’s Shorts.

In court filings, TikTok called the law “fundamentally at odds with the Constitution’s commitment to both free speech and individual liberty.” It also insisted that China’s government cannot access U.S. users’ data and said Congress has not substantiated its claims of a national security threat.

“We remain convinced the law is on our side and the courts will overturn this unconstitutional ban,” said Alex Haurek, a TikTok spokesperson.

Outside Washington, the video-sharing platform is waging a parallel battle for public opinion.

Since 2023, TikTok has shelled out more than $4.8 million for ads promoting stories about how the app improved users’ lives, according to ad analytics company AdImpact. It’s also helping fund a lawsuit against the U.S. from content creators who were approached by Davis Wright Tremaine, a law firm that’s defended Big Tech companies including Meta and Amazon.com Inc.

Eight TikTok creators — including a Texas rancher, a college football coach and a Maryland book lover who promotes Black authors — appeared as plaintiffs, arguing that a ban would trample their First Amendment rights.

“I definitely couldn’t afford this,” said Paul Tran, one of the plaintiffs and a skin care line co-founder. “They are helping us to fight this.”

Supreme Court specialists

TikTok laid the groundwork for its defense long before the divest-or-ban law passed in April. In 2020, then-President Donald Trump signed an executive order banning the app on national security grounds, but it was rescinded under Biden amid a series of court challenges.

Back in 2020, TikTok was represented by a handful of attorneys from white-shoe law firm Covington & Burling, and since then the platform has added lawyers from Chicago-based law firm Mayer Brown.

Anticipating a Supreme Court review, TikTok brought on Mayer Brown’s Andrew Pincus, a former assistant to the U.S. Solicitor General who has argued 30 cases before the justices and represented other Big Tech companies, including Alphabet Inc.’s Google and Spotify Technology SA.

The creators also are getting help from Supreme Court heavyweights, including O’Melveny’s Jeffrey Fisher, who has argued four dozen cases in the country’s highest court and Joshua Revesz, who once clerked for Justice Elena Kagan.

“The creators have distinct and important First Amendment rights in this case and we’re proud to be challenging the government’s unconstitutional ban on their behalf,” said Ambika Kumar, a lawyer from Davis Wright Tremaine who’s the lead attorney for the creators.

Attorneys with Supreme Court expertise typically charge hundreds to thousands of dollars an hour. In 2020, Fisher billed $1,555 an hour to fight an anti-abortion law in Louisiana that the Supreme Court struck down, according to court records.

Those hires could give TikTok an edge at the Supreme Court, according to Adam Feldman, creator of the Empirical SCOTUS blog. Pincus and Fisher know the justices and how to frame their arguments, said Feldman.

“There is the ability for the interaction to be a lot more conversational than adversarial,” Feldman said.

Bloomberg Intelligence analysts now give TikTok a 60% chance of prevailing in court, up from 30% when the lawsuit was first filed. That could change if the Justice Department offers evidence of a national security threat that U.S. intelligence officials presented to Congress in closed-door sessions.

Lobbying blitz

TikTok shelled out millions in the months before the law was signed, and its lobbyists have continued to blanket Capitol Hill as the court case plays out. ByteDance spent nearly $6 million on lobbying during the first half of 2024, up from $3.5 million during the first half of 2023.

TikTok said part of the latest quarter’s spending rise was due to employees’ stock vesting, which counted as salary increases. But the company has also expanded its presence with new hires and forceful messaging against the potential ban.

TikTok’s roster of 47 outside lobbyists features several former lawmakers, including New York Democrat Joe Crowley, who was defeated by Alexandria Ocasio-Cortez after nearly 20 years in office; California Republican Jeff Denham; and Illinois Republican Rodney Davis.

A congressional aide familiar with TikTok’s lobbying said Davis, Crowley, Denham and former Republican Senate Majority Leader Trent Lott have been pivotal, thanks to their long-term relationships in Congress.

TikTok also has built a team of 15 in-house lobbyists, including Alex Harman, who previously focused on regulating Big Tech companies, and Elizabeth Oblinger, a one-time eBay Inc. lobbyist and staffer to former Ohio Republican Sen. Rob Portman.

The company’s representatives have lambasted lawmakers for passing an unconstitutional bill and argued that a TikTok ban will only benefit Meta, said two congressional staffers who requested anonymity to divulge private conversations. Several TikTok lobbyists have expressed confidence that the law will be overturned, framing it as a legislative failure by Congress.

“With Republicans, they are really trying to pitch themselves as the alternative to Instagram and Meta,” Thayer said.

That argument echoes Trump’s own turnabout on TikTok — and his criticism of Meta Chief Executive Officer Mark Zuckerberg over Facebook’s decision to boot Trump from the platform after the deadly Jan. 6, 2021, U.S. Capitol riot.

In a recent Bloomberg Businessweek interview, the Republican presidential nominee reversed his prior support for a ban, saying “I’m for TikTok because you need competition. If you don’t have TikTok, you have Facebook and Instagram — and that’s, you know, that’s Zuckerberg.”

TikTok responded by saying Meta had orchestrated an anti-TikTok campaign, citing earlier reporting by The Washington Post. Meta didn’t immediately respond to a request for comment.

As part of its campaign in Washington, TikTok has also assembled a group of hard-nosed communications staffers led by former Walt Disney Co. executive Zenia Mucha. Several spokespeople for TikTok and ByteDance previously worked at Big Tech companies, such as Jodi Seth, a veteran of both Meta and Amazon.

• With assistance from Jamie Tarabay and Kurt Wagner.