Tom Williams/CQ Roll Call via AP Images
Reps. Jim Jordan (R-OH) and Ken Buck (R-CO) are seen during a House Judiciary Committee markup in the Rayburn Building, May 8, 2019.
What began in the House Antitrust Subcommittee as an open-ended investigation into the power of the large tech platforms has culminated over two years later in a package of five bipartisan bills informed by that investigation. Each targets a specific aspect of Big Tech’s power, from platform websites self-preferencing their own products, to serial acquisitions that entrench market dominance, to vertical integration across multiple business lines, to network effects that lock in customers. Each bill has multiple Republican co-sponsors, and one has already passed through the Senate.
But Congress is an inhospitable place these days for lawmakers who want to make things happen. Ideological distancing could still frustrate efforts on this legislation, regardless of their level of support. The relative narrowness of the package, despite a concentration problem that spans industries throughout the economy, could also present a challenge. This battle is more likely to be waged at the state level, in the courts, and inside the federal antitrust agencies than in precarious coalitions for somewhat myopic bills.
In any other context throughout U.S. history, a legislative agenda offered in tandem by the chair and ranking member of a committee would have good prospects for success. And if the “Opportunity, Innovation, Choice” agenda were to pass, it would have positive effects for the country.
The bills include the American Choice and Innovation Online Act, which would ban online platforms from giving their own services advantages over rivals, through for example placing their links at the top of the page. It would also prohibit conditioning access to platforms on buying services from them (a seeming reference to Amazon’s dangling of fulfillment services for third-party sellers as the only way to win the “buy box” where most products are sold); using nonpublic data to inform a platform’s competing goods or services (a reference to Amazon Basics informing their product line from seller data); or requiring pricing ranges from third-party sellers (something being litigated right now in D.C.’s lawsuit against Amazon).
This battle is more likely to be waged at the state level, in the courts, and inside the federal antitrust agencies.
The Platform Competition and Opportunity Act prohibits platforms of a certain size from making mergers or acquisitions. The Ending Platform Monopolies Act would structurally separate platforms that host sellers or partners from business lines they own that compete with them, by allowing enforcement agencies to force divestiture of anything that creates a “conflict of interest.” (Rep. David Cicilline has in the past compared this to a “Glass-Steagall” act for Big Tech.) The ACCESS Act would require platform sites to make their data portable and their network interoperable with competing services, the way texting services ICQ and AOL Instant Messenger and iMessage were all interoperable in the late 1990s and early 2000s. The idea here is to lower barriers to entry for building a new social media site by allowing Facebook or Instagram data and friends to freely move over.
Finally, the Merger Filing Fee Modernization Act increases payments for large corporations engaging in mergers, which would allow for more funding to the Justice Department Antitrust Division and the Federal Trade Commission without new federal outlays. This bill, which applies to all mergers and not just Big Tech, has already passed the Senate, inside the so-called “China bill” that now awaits House action.
House Antitrust Subcommittee chair Rep. David Cicilline (D-RI) and ranking member Rep. Ken Buck (R-CO) endorsed the package, and several Republicans co-sponsored some or all of the bills, including Reps. Lance Gooden (R-TX), Burgess Owens (R-UT), Chip Roy (R-TX), and even far-right members like Madison Cawthorn (R-NC) and Matt Gaetz (R-FL).
However, as the Prospect has reported, there’s an ideological split among Republicans on the House Judiciary Committee. Buck has become convinced that Big Tech has too much power and steps must be taken to weaken that, while the ranking member of the committee, Rep. Jim Jordan (R-OH), has been far more receptive to traditional pro-corporate, libertarian antitrust policy. When Jordan responded to former President Trump’s continued ban from Facebook by tweeting, “Break them up,” it was thought that he was perhaps moving to Buck’s interpretation of the issue. But upon release of this package, Jordan responded with the same old partisan bomb-throwing about Big Tech censoring conservatives and Democrats just wanting big government to solve the problem. A Jordan spokesperson expressed skepticism to Politico that any bill written by “impeachment manager David Cicilline and other progressives” would pass conservative muster.
Jordan simply has more juice among Republicans than Buck. When the House Judiciary Committee adopted the Big Tech antitrust report, they did it on a party-line vote, because Jordan rejected it wholesale. Many of the Republicans who co-sponsored these bills, including Ken Buck, voted no. If Jordan is not on board, most Republicans won’t be either, and it’s doubtful that the House would be able to pass much of this agenda, given that some tech-friendly Democrats would probably drop off as well. You can see how muddled Republican aims are by a Senate GOP antitrust bill introduced on Monday, which while claiming to strengthen enforcement would actually harm it by codifying the consumer welfare standard that artificially narrows harms arising from concentration down merely to price.
There’s an ideological split among Republicans on the House Judiciary Committee.
We’ve already seen Big Tech’s lobbying skill at fending off scrutiny in the China bill, when a measure that would have forced Amazon to confirm the identity of their third-party sellers to prevent largely Chinese counterfeits got stripped at the last minute. Lobbying would clearly be fierce here, given that the most powerful and free-spending companies in the world are on the opposite side.
The filing fee legislation, which doesn’t cost any money, is not really targeted at Big Tech, and already has Senate support, would be the likeliest candidate of the five to get out of Congress. It’s also the least impactful; more money for merger enforcement means little without the will and creativity to act.
The Biden administration has left key positions in those enforcement agencies vacant, nearly five months into his presidency. But other agencies with anti-monopoly capabilities have begun to act. The U.S. Department of Agriculture commenced work on a rewrite of enforcement of the century-old Packers and Stockyards Act. Among other things, the new rules would clarify that farmers and ranchers do not have to show sector-wide impediments to competition to bring action for individualized harm. This was one of the biggest barriers to enforcing this law. But the agency responsible for enforcement, the Grain Inspection, Packers and Stockyards Administration (GIPSA), was dissolved under the Trump administration and folded into an agricultural marketing service.
Two Republican senators, Chuck Grassley (R-IA) and Mike Rounds (R-SD), have introduced a bill that would add a specific anti-competition watchdog at USDA to monitor meatpacking industry concentration. That legislation didn’t get the fanfare of the suite of Big Tech bills, with their high-profile subject covered incessantly by coastal media. But it probably has a better chance of becoming law, and it indicates how the competition issue goes well beyond Silicon Valley, and could attract bipartisan support if it addressed other areas important to conservatives.
Meanwhile, outside Washington, anti-monopoly movement continues. In Ohio, Republican Attorney General Dave Yost last week asked a state judge to declare Google a public utility, following on the logic of conservative Supreme Court Justice Clarence Thomas. This would achieve what the antitrust bills banning self-preferencing want through court action, and since robust antitrust laws exist on the books, changing legal precedent would encompass much of what antitrust reformers seek.
At the state level, New York has shown the possibilities of real action. SB 933, which passed the state Senate last week, would upend the Empire State’s antitrust law, clarifying that an “abuse of dominance” standard predominates for antitrust enforcement, rather than a standard that narrowly focuses on consumer welfare. As Matt Stoller notes, this transformative change in how the state approaches monopoly was supplemented by two other bills. One passed by the state Senate allows a right to repair for users who buy electronics or other products; companies like Apple and John Deere often block third-party and consumer repairs, citing proprietary information. The other would regulate pharmacy benefit managers, obscure middlemen that lead to rising prescription drug prices.
PBM regulation and right to repair bills have been sweeping through red and blue states in the past few years. It reinforces that the action on anti-monopoly policy has been everywhere but Congress. Despite the promising array of Big Tech bills, that’s probably still the case.
