By Glynn Wilson –

WASHINGTON, D.C. – House Democrats launched a series of legislative efforts this week to try tackling the monopoly power of Big Tech. But are they asking the right questions? And will the efforts simply fail because Republicans won’t go along?

Led by House Judiciary Committee Chairman Jerrold Nadler, a Democrat from New York, the committee is considering bills that are designed “to expand opportunities for consumers, workers, and small business owners by holding unregulated Big Tech monopolies accountable for anti-competitive conduct,” according to a statement.

H.R. 3816, the “American Choice and Innovation Online Act” prohibits discriminatory conduct by dominant platforms, including a ban on self-preferencing and picking winners and losers online. The bill is sponsored by Antitrust Subcommittee Chairman David N. Cicilline (D-RI) and cosponsored by Rep. Lance Gooden (R-TX).

H.R. 3460, the “State Antitrust Enforcement Venue Act of 2021” ensures state attorneys general are able to remain in the court they select rather than having their cases moved to a court the defendant prefers. The bill is sponsored by Antitrust Subcommittee Ranking Member Ken Buck (R-CO) and cosponsored by Antitrust Subcommittee Chairman Cicilline (D-RI).

H.R. 3826, the “Platform Competition and Opportunity Act” prohibits acquisitions of competitive threats by dominant platforms, as well acquisitions that expand or entrench the market power of online platforms. The bill is sponsored by Rep. Hakeem Jeffries (D-NY) and cosponsored by Antitrust Subcommittee Ranking Member Buck (R-CO).

H.R. 3825, the “Ending Platform Monopolies Act” eliminates the ability of dominant platforms to leverage their control across multiple business lines to self-preference and disadvantage competitors in ways that undermine free and fair competition. The bill is sponsored by Rep. Pramila Jayapal (D-WA) and cosponsored by Rep. Lance Gooden (R-TX).

H.R. 3849, the “Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act” promotes competition online by lowering barriers to entry and switching costs for businesses and consumers through interoperability and data portability requirements. This bill is sponsored by Rep. Mary Gay Scanlon (D-PA) and cosponsored by Rep. Burgess Owens (R-UT).

H.R. 3843, the “Merger Filing Fee Modernization Act” updates filing fees for mergers for the first time in two decades to ensure that Department of Justice and Federal Trade Commission have the resources they need to aggressively enforce the antitrust laws. This bill is sponsored by Rep. Joe Neguse (D-CO) and cosponsored by Rep. Victoria Spartz (R-IN).

The action started with the State Antitrust Enforcement Venue Act, which Nadler said ensures that state attorneys general who bring antitrust cases in federal court do not face delays or higher costs due to the transfer of such cases to a different venue.

“Congress has long recognized the essential role that states play in enforcing the antitrust laws. State attorneys general are often a crucial partner for federal antitrust enforcers. They also play an important role in independently enforcing the antitrust laws to protect consumers and competition in their states,” Nadler said.

Under current law, the Judicial Panel on Multidistrict Litigation, which plays an important coordinating role in litigation filed across multiple districts, cannot transfer an antitrust case brought by the United States from one federal district court to another. Additionally, antitrust cases brought by the federal government cannot be combined with similar litigation brought by private plaintiffs.

“That means that, in general, when the United States files an antitrust case, its choice of venue is final, and the case cannot be slowed down by having to coordinate or consolidate cases with private litigants,” Nadler said. “States do not enjoy these benefits. As a result, states may be forced to litigate in an inconvenient venue, even when the original venue they chose was appropriate. Additionally, states’ ability to bring timely action to protect their citizens can be delayed.”

H.R. 3460 updates this law to prevent state antitrust litigation from being transferred to another venue or consolidated with private antitrust claims by the Judicial Panel on Multidistrict Litigation.

“This change ensures that states can effectively litigate antitrust cases without unnecessary delays, inefficiencies, and higher costs that occur when state antitrust cases are transferred or combined,” Nadler said. “Importantly, this legislation applies only to the JPML process and it does not affect the rights of defendants to seek to transfer a case to a more convenient or appropriate forum under the federal change of venue statute.”

In testimony before the Antitrust Subcommittee earlier this year, one witness explained that cost and time are the biggest obstacles to antitrust enforcement. He explained that every extra year it takes an antitrust case to get to trial is an extra year of monopoly.

Earlier this month, the National Association of Attorneys General wrote to the committee to express its strong support for H.R. 3460. In a letter signed by every state attorney general in the country, they urged Congress to pass this urgent legislation ‘as soon as possible so that our citizens can benefit from more efficient, effective, and timely adjudication of antitrust actions.’

“I agree with the state attorneys general, including my friend, Letitia James, the Attorney General of New York, that H.R. 3460 will promote better and more timely enforcement of the antitrust laws,” Nadler said.

According to New York Times coverage of this issue, if passed, the bills could “bulk up antitrust agencies, make it harder to acquire potential rivals, and prevent platforms from selling or promoting their own products to disadvantage competitors.”

While there was some “growing bipartisan agreement for taking on the tech companies,” and a handful of Republicans joined the widespread support among Democrats for the bills, the debate on the House floor on Wednesday “exposed the fault lines among Republicans and Democrats — and underscored why final passage of all the bills is expected to be difficult.”

The focus of the legislation is on the market power of Amazon, Apple, Facebook and Google. Some Republicans say that the bills only add more government intervention into the economy while not directly addressing their concerns about free speech.

Representative Jim Jordan of Ohio, the top Republican on the committee, said the bill was a power grab for the Democratic-led antitrust agencies, making them bigger and more influential. He also said the proposals and the other antitrust bills failed to address the ability of Facebook and other social media companies to cut off political voices.

“Big tech censors conservatives,” Jordan said. “These bills don’t fix that problem, they make it worse.”

The evidence, however, is that up until the Capitol insurrection with the president and commander in chief challenging the results of the election, there was not enough regulation and moderation of so-called “conservative” speech from Republicans, which had nothing to do with political or economic conservatism but spreading fake news propaganda to manipulate under educated voters into voting for a party that can’t compete anymore by telling the truth. From 2015 through 2020, the content of Google and YouTube especially was full of false content favoring Republicans on the side of Donald Trump.

The president used Twitter as his primary platform for spreading lies and propaganda, and all of this was spread far and wide on Facebook as well without any regulation or moderation whatsoever, even confusing progressive Democrats at times into sharing false messages about Hillary Clinton, for example, during the 2016 presidential campaign.

It was not until the Capitol insurrection that Facebook, Twitter and YouTube started flagging and banning false statements about the outcome of the election, which ultimately required kicking Trump off the platforms completely because everything he said was a lie that incited violence and threatened democracy itself.

It would also not be censorship anyway, since it would not be the government censoring speech. Private companies have every right to ban customers from spreading falsehoods on their platforms, just as a private restaurant can refuse service to anyone who disrupts their business and airlines can kick customers off of planes who cause trouble.

Representative Ken Buck of Colorado, a Republican and a co-sponsor of the bills, publicly went along with the notion this week that tech companies silence conservatives, which on the face of it is NOT true. But he implored his party for unity to take on the power of Big Tech through the proposals, which he said would limit the overall power of the companies.

“These bills are conservative,” Buck said.

While progressive members of Congress largely back the bills, the proposals have frustrated Democratic lawmakers from California, who say they go too far in regulating their state’s most prominent companies.

Representative Lou Correa, a Democrat from Southern California, said that the number of people in the state working for the big tech companies had grown substantially, helping the state fund services like public education and support for people affected by Covid.

“We want to make sure that we don’t kill the goose that lays the golden eggs,” he added later.

“These firms — high tech — are the reason California has a budget surplus, as opposed to a deficit, enabling the state of California to invest in public education, to help those affected by Covid, the middle class, those who are trying to get to the middle class,” he said.

Other California Democrats who expressed concerns about the bills included Representative Zoe Lofgren, whose district includes part of San Jose, and Representative Eric Swalwell.

Lofgren worried during the hearing that the bills could ensnare companies that do not share the tech giants’ immense scale. Mr. Swalwell said before the hearing even began that he would oppose several of the bills.

“In my district alone, I represent thousands — likely in the five digits — of employees affected by the proposed laws,” he said. “It is these people whose jobs, families and livelihoods I was elected to protect — and must advocate for today.”

Eight Democrats in the House have asked Speaker Nancy Pelosi, who has tremendous sway over when bills are taken up in the full House, to slow the process. The lawmakers repeated arguments made by companies like Apple that say the bills could open up security and privacy vulnerabilities for customers.

The challenge is even stiffer in the Senate, according to the Times, where the bills will each require significant Republican support to reach the needed 60 votes. A few Republicans, including Josh Hawley of Missouri, have pressed for stiffer antitrust laws. But it is unclear whether many more will join him.

Some bills, like the one to generate more money for the Federal Trade Commission, could face less resistance than others. The most contentious is a bill that bans platforms from selling their own products, such as Amazon selling its own branded Amazon Basics toilet paper and putting rivals like Charmin at a disadvantage.

“We think it’s an uphill climb for the toughest bills,” said Paul Gallant, a research analyst at Cowen and Company. “The Senate filibuster is always the highest hurdle and I suspect it will hold back the toughest of these bills. But the House is going faster and farther against tech than anyone expected.”

The bills face fierce opposition from technology companies that have marshaled their considerable lobbying operations. Ahead of the votes on Wednesday, Apple sent a letter to committee leaders warning that the if the bills were passed, the company would not be able to offer certain privacy and security features for users. Think tanks and lobbying groups funded by tech companies issued critical statements before the votes.

The bills “single out a handful of America’s most innovative and globally competitive tech companies for divestiture and draconian regulation,” said Alec Stapp, a director of the Progressive Policy Institute, a nonprofit think tank that received sponsorship from tech companies.

Chamber of Progress, a newly formed tech trade group representing Amazon and Google, said a recent Morning Consult poll showed that voters didn’t see tech regulation as a top priority.

“Consumers want the government to scrutinize and regulate the tech industry, but don’t want Congress redesigning the apps and services that make their lives easier,” said its chief executive, Adam Kovacevich.

Alex Harman, a competition policy advocate at Public Citizen, which had been pushing for the bills, said Wednesday’s votes represented an important moment. Almost a decade ago, he said, there had been little Capitol Hill support for an investigation of Google’s practices by the Federal Trade Commission, which ultimately decided not to pursue a case against the company.

“Nine years later, we are in a world where a serious bipartisan effort in a committee is not just trying to push on an investigation, they’re trying to break them up,” he said. “That is a big deal.”

The tech giants have mounted an aggressive campaign to block the bills. Tim Cook, Apple’s chief executive, has been calling members of Congress to express his concerns. Executives at other companies have made statements in recent days opposing the bills. And scores of groups funded by the companies have urged lawmakers to oppose the proposals.

The Right Questions

According to Dina Srinivasan, an antitrust scholar and fellow with the Thurman Arnold Project at Yale University who is consulting with the Texas Republican attorney general’s office on its case against Google, the search engine company has been able to corner much of the online ad market and keep trading costs high for websites, apps and advertisers.

Google Is Dominating This Hidden Market With No Rules

[Disclaimer: I have been in consultation with Srinivasan about our own potential lawsuit against Google for under counting traffic to the New American Journal and underpaying for Google ads on our news site.]

In Europe, there have been successful anti-trust lawsuits against Google for years, resulting in the company Alphabet Inc. paying out about $9 billion in lawsuit settlements for putting other search companies out of business there. Those actions continue.

Google’s Internet Ad Dominance Draws Fresh E.U. Antitrust Inquiry

But companies and governments in the U.S. have been reluctant to sue this American company.

That is starting to change. But given the grinding and unpredictable pace of litigation, Srinivasan argues, “I believe that we need a faster, more robust solution.”

She urges Congress to grant a federal agency like the Federal Trade Commission the power to police conflicts of interest and pass rules against self-dealing in emerging exchange markets like advertising.

“Fixing the digital-ad marketplace is a rare issue with bipartisan support,” she says. “Now is the time to make this regulation happen.”

According to the Brookings Institute, a so-called liberal think tank, improving antitrust law in America is critical.