Tom Williams/CQ Roll Call via AP Images
Rep. Zoe Lofgren (D-CA) talks with reporters after a meeting of the House Democratic Caucus in the Capitol, March 3, 2020.
The dismissal of two Federal Trade Commission lawsuits against Facebook has renewed the call for congressional updates to the antitrust laws. If a company as dominant in social media as Facebook can’t be challenged under the current precedents, the theory goes, then Congress needs to step in and enable competition policy that fulfills the initial legislative intent. And if that ever happens, an unheralded internal election within the House of Representatives will be retrospectively seen as a major factor in how economic policy in the United States was transformed.
In December 2017, after the resignation of Rep. John Conyers (D-MI), two veteran House Democrats vied to become ranking Democrat on the House Judiciary Committee: Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA). Nadler emerged victorious, and at the time it was suggested that his expertise in constitutional matters during the Trump presidency swayed the caucus. For her part, Lofgren had played up her knowledge of immigration issues, also paramount concerns in the Trump years. Both were seen as committed liberals who would be sufficiently aggressive against executive branch excesses.
But 2017 was still the early stage of the backlash against Big Tech, and though Judiciary has jurisdiction over the antitrust laws, that wasn’t a major part of the debate. Today, it looms as a critical choice for anti-monopolists. Nadler, as chair, is a strong supporter of more aggressive antitrust enforcement, particularly against the tech platforms. Lofgren, whose district encompasses a large chunk of Silicon Valley, has a long history of defending her constituents in the tech world, and enjoying their campaign donations. She has visited their offices to talk policy, and she has welcomed their lobbyists at her fundraising events. Several members of Lofgren’s staff have gone on to work for Big Tech, both directly and indirectly.
Lofgren hasn’t changed her positions, even though Big Tech suddenly has few friends in Washington.
Lofgren’s positions on the industry came into focus in the recent markup of six bills that target Big Tech and stiffen antitrust enforcement, which featured strange coalitions for a normally polarized Congress. Time and again, Lofgren sided with Republicans in opposing the bills, which set nondiscrimination standards, mandated structural separation of business lines, introduced requirements for data portability, and prohibited mergers for larger companies. In the markup, Lofgren argued that the bills “create more harm than good,” and in some cases she pitched her argument as a defense of the little guy, claiming that smaller platforms would be more adversely affected by complying with the statutes than the tech giants. She even opposed the most uncontroversial part of the package, a bill to end “venue shopping” by companies seeking favorable judges, saying that there were benefits to a single judge overseeing cases of similar type.
“I do think, especially being in Silicon Valley, that there’s a need for reform,” Rep. Lofgren said in an interview with the Prospect. “In the end, it’s about how it’s drafted. We’re writing bills, not bumper stickers, and I don’t think they’re well crafted.” Many of her efforts to amend the bills failed in committee, though one that succeeded, which expanded some restrictions to firms outside of tech, was seen as a poison pill that would whip up more opposition to the effort.
Lofgren also appeared to have some sway over fellow members of the California congressional delegation. While she told me that there hasn’t been a big conversation within the delegation, in the Judiciary Committee, Democratic Reps. Lou Correa and Eric Swalwell expressed “concerns” over the bills, voting against several. Reps. Ted Lieu and Karen Bass, while they supported the bills in committee, both said they may oppose certain ones if they ever come to the House floor.
That action has become imperiled. While Speaker Nancy Pelosi has affirmatively endorsed the bills, House Majority Leader Steny Hoyer (D-MD) said Tuesday that they are “not ready for the floor,” noting specifically that “some very senior members opposed it.” That’s a clear reference to Lofgren, the most senior opponent. Rep. David Cicilline (D-RI), chair of the House Antitrust Subcommittee who designed the package of bills, acknowledged that they need to educate members and build additional support.
Other Democrats have wavered on the bills, including eight members of the New Democrat Coalition. And there’s a war inside the Republican Party over the initiative as well. A bipartisan House vote for the bills is certainly possible. But that’s going to be difficult given Lofgren’s advocacy for Silicon Valley, which is not only her home but a powerful part of her donor base.
LOFGREN ISN’T A NEW CONVERT to aligning with the tech firms that dot her district. As far back as 2009, she praised the Google Books settlement, which allowed the company to digitize books without individual copyright approval. In 2011, she endorsed a tax holiday for “repatriating” foreign earnings at a low 5.25 percent rate, a critical way that tech firms evade taxes on intellectual property stashed overseas. In 2012, she and Rep. Anna Eshoo, who represents another part of Silicon Valley, were the only two Democrats in Congress to vocally oppose the Federal Trade Commission’s efforts to investigate Google. When the FTC ended the investigation without a lawsuit, Lofgren and Eshoo applauded the outcome. In 2017, she was the only Democratic member of Congress to voice opposition to the European Commission’s 2.42 billion euro fine against Google.
Lofgren hasn’t changed her positions, even though Big Tech suddenly has few friends in Washington. After the House Antitrust Subcommittee (on which Lofgren does not serve) released its 450-page report about the dominant tech platforms, the full Judiciary Committee voted to approve the report along party lines. But Lofgren issued an “additional views” document, saying that her vote to approve “should not be taken as agreement with each and every one of its specific findings and recommendations.” She indicated that enforcement agencies and courts would be “better suited than a Congressional committee” to study potential anti-competitive conduct in digital markets—effectively waving away the report. She also intimated that dominant platforms induce greater competition in the markets that feed them, and that what she calls “gatekeeping power” may simply be “good-faith efforts to serve user interests.”
It’s hard to separate Lofgren’s positions from her record of support from the tech industry and its financial angels.
In general, Lofgren has promoted privacy of user data as the most pressing need in the digital space. Her Online Privacy Act, introduced with Eshoo, would regulate user privacy through a new federal agency. “The tech companies don’t like it,” she said. “But if we wanted to be serious about problems in the tech industry, we should do that.” The focus on privacy regulation, of course, moves away from the calls for the breakups and merger enforcement to challenge Big Tech’s power. Indeed, Lofgren has explicitly stated that the problem is not bigness, but whether users are being harmed.
It’s hard to separate Lofgren’s positions from her record of support from the tech industry and its financial angels. The Center for Responsive Politics finds that Lofgren has received $964,816 in her career, in employee and PAC contributions, from tech companies, including Cisco, Intuit, Google and its corporate parent Alphabet, Microsoft, Oracle, Adobe, the National Venture Capital Association, and leading VC company Kleiner Perkins. She’s received individual donations from Kent Walker, a top Google lobbyist in Washington. A 2017 campaign fundraiser called the “Taco Truck Fiesta” was attended by Google lobbyists.
In 2013, Google paid to have Lofgren’s then–chief of staff Stacey Leavandosky fly to Google headquarters to hold meetings on “patents, cybersecurity, copyright, innovation.” Policy adviser Ricky Le also flew to Google HQ on the company’s dime in the same year. Lofgren told the Prospect that she personally hadn’t been to Google headquarters in four or five years, and hadn’t visited Apple in over a decade. She couldn’t remember her last trip to Facebook’s campus.
Lofgren has disclosed on government forms that as of 2018, she owned a modest amount of stock in Google, Apple, Facebook, Intel, and Microsoft, the sum of which totaled between $5,000 and $75,000. In March 2020, she sold some portion of those shares, but in June 2020 purchased between $1,000 and $15,000 in Cisco. Lofgren correctly indicated that the filings denote that the stocks are held by her spouse, John Collins. “I shouldn’t admit this, but I have personally never purchased a share of stock in my life,” she said, adding that her husband’s retirement fund is separately managed by an outside broker.
Several Lofgren legislative staffers have found their way into Silicon Valley companies once revolving out of government. ZJ Hull, former congressional aide and counsel, is now a senior government affairs official for Apple. David Thomas, Lofgren’s former chief of staff, represented the Information Technology Industry Council, whose members include Amazon, Apple, Intel, Google, and many more. Ricky Le, the former policy adviser who traveled to Google headquarters, also lobbied for ITI, before returning to the office of Rep. Linda Sánchez (D-CA). Erik Stallman, a former counsel, was a lobbyist for the Internet Association, another Big Tech trade group, and a public-policy counsel for Google.
Lofgren said that all relevant ethics rules are followed regarding contact between prior staffers now working as lobbyists and current staff. “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 said, adding that they can earn a far higher salary from tech companies than from the government. She noted that she hasn’t talked to Hull, who currently represents Apple, about the suite of Big Tech bills, in which Apple would be implicated.
There is clearly interest to rein in market concentration throughout the economy. The White House is drafting an executive order on competition, and significant progress is being made on cracking down on the consolidated meatpacking industry. Other industries may have their own friends on Capitol Hill and their own fortunes put toward persuading Congress to back off. But a giant phalanx of special interests has descended on Washington to argue against the Big Tech bills, and they share the perspective of Lofgren, who represents part of their stomping grounds.
Lofgren insists that her contention is merely with the language of the bills. “I like Rep. Cicilline very much,” she said. “I just don’t like his bill.”
