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January 6th Hearing Day 2
Rep. Zoe Lofgren (D-CA) attends a January 6th Committee hearing, June 13, 2022, on Capitol Hill.
It’s rare enough to see a primary race run by two incumbents, and rarer still to see a primary race with two incumbents who have served a combined 59 years in office. That’s the case in New York’s new 12th District, however, where Jerry Nadler, who has been in the House since 1992, is up against Carolyn Maloney, who has been in the House since 1993.
The Upper West Side vs. Upper East Side of Manhattan showdown is one of four Democrat-on-Democrat races keyed off by the redistricting cycle. This one in New York has by far the most seniority on the line. But it’s also a race with surprisingly high stakes for the party’s ability to see through its signature, sweeping antitrust legislation, which will remain a top priority for Democrats even after the midterms, especially if they are unable to pass the American Innovation and Choice Online Act before the legislative session is complete.
That bill, which was passed out of the Senate Judiciary Committee earlier this year, would go to great lengths to rein in monopolistic behavior exhibited by tech giants like Amazon, Apple, Facebook, and Google. Under the proposed legislation, those firms would be forbidden from giving preferential treatment to their own services in the marketplaces they also operate, like when Google places its own travel recommendations at the top of its search results, or Amazon ranks its own goods first in product searches and disadvantages its competitors’ listings. Such behavior would be penalized at a rate that could amount to 10 percent of those firms’ U.S. revenue.
The bill has been the object of intense lobbying by Silicon Valley industry groups and affiliates, but has thus far managed to survive as a robust and tone-setting package for an industry that has enjoyed precious little meaningful scrutiny for years. The bill is awaiting a full vote in the Senate, which has been anticipated for months. If there are indeed 60 votes for it—the House version enjoyed Republican support when it passed through committee, and there are multiple Senate Republican co-sponsors—it will then need to return to the House for a full vote before becoming law.
But time pressure is mounting, and not just from the possibility of a Republican takeover of the House. If Nadler loses his primary against Maloney, Democrats will lose a critical ally of the antitrust fight in the House, one who holds an extremely important position as chairman of the House Judiciary Committee. And the next highest-ranking Democrat in the committee is perhaps the party’s most vocal opponent of tackling Big Tech: Silicon Valley’s Zoe Lofgren.
It’s unlikely there would be a Big Tech antitrust package without Nadler. H.R. 3816, the House version of the bill, was introduced by David Cicilline (D-RI) in the Judiciary Committee in June of last year with Nadler as a co-sponsor. As the committee chair and highest-ranking Democrat, Nadler helped steer the bill through a relatively narrow 24-20 vote that featured meaningful Republican support. In the four years since he assumed the role as top-ranking Democrat in the committee, Nadler has aggressively pursued antitrust legislation for Big Tech, while his committee led a two-year investigation of the sector, primarily overseen by then–Cicilline staffer and now Federal Trade Commission chair Lina Khan.
Lofgren has received nearly $1 million in employee and PAC contributions from tech companies over her career.
One of the most vocal detractors of the bill, and one of its staunchest no votes, was Lofgren. She told the Prospect last year that the bill was not “well crafted.” After it passed out of committee, Lofgren teamed up with California Democrats Eric Swalwell and Lou Correa, and Republicans Darrell Issa and Tom McClintock, to condemn the package. She has continued to push her weaker, industry-friendly bill, the Online Privacy Act, as a substitute.
Lofgren has received nearly $1 million in employee and PAC contributions from tech companies over her career, and several former staffers of hers now work at Silicon Valley firms (like Apple) and associated trade groups. “Because I represent a district in Santa Clara County, when staffers leave it’s not surprising that they go to represent the tech world,” Lofgren told the Prospect last year.
The American Innovation and Choice Online Act might look very different if Lofgren, who herself was first elected to Congress in 1994, had succeeded in her late-2017 campaign for ranking member of the Judiciary Committee. House Democrats voted 118-72 to elevate Nadler over Lofgren for the position, which was vacated after Michigan’s John Conyers Jr. left Congress following allegations of sexual misconduct. Because of Nadler’s edge in seniority, he had been serving as acting ranking member since Conyers stepped down, meaning that there was every expectation that Nadler would take over the role. But Lofgren made a play for the seat anyway, at a time when her loyalties to Big Tech were well known. Lofgren was one of the only Democrats to pressure antitrust authorities to step down in their investigation of Google during the Obama years.
Since then, the elevation of Nadler over Lofgren has proven hugely consequential for Democrats’ ability to push antitrust legislation and rein in the monopolistic behavior of Big Tech.
As The Intercept reported last year just weeks after H.R. 3816 was passed out of committee, Lofgren chided members of the Congressional Progressive Caucus for supporting the bill, and noted that she had been generously spreading all of the money she’d raised from Silicon Valley on Democratic campaigns that weren’t hers since at least 1996. She suggested that those Democrats who supported the bill didn’t understand what they were voting for. Nadler was among those who spoke up against Lofgren.
And while Lofgren warned Democrats about not biting the hand that feeds, even substantial support for the legislation from Lofgren’s own district has done little to sway her away from her industry-friendly stance. According to polling numbers from Data for Progress, conveyed to The Intercept, respondents in Lofgren’s deep-blue district support the American Innovation and Choice Online Act 58 percent to 12 percent, good for a +46 margin.
If Nadler were to lose to Maloney, Lofgren would likely be a shoo-in for top Democrat on the House Judiciary Committee, given the continued reverence for seniority and her near miss the last time the position came open. “It would basically put Mark Zuckerberg in charge of Democratic antitrust policy,” said Matt Stoller, director of research at the American Economic Liberties Project.
Republicans have shown some interest in the antitrust bills, but Speaker-in-waiting Kevin McCarthy (R-CA), who is rather friendly with tech leaders, would be unlikely to have his party press the issue while in power. Still, with Lofgren as ranking Democrat, she would be unlikely to make Republicans pay for their unpopular stance of neglecting Big Tech’s power.
Even with a reinvigorated Federal Trade Commission and Antitrust Division in the Justice Department, Lofgren helming the House Judiciary would deal a crucial blow to Democrats’ ability to achieve anything further on antitrust, via legislation or congressional investigation. That would go back on one of the outstanding commitments of the Biden administration, and close down one of the few opportunities for bipartisan accomplishment going forward.
