CONGRESS’S STRANGE BEDFELLOWS FIGHTING BIG TECH BY BRITTANY GIBSON

Congress’s Strange Bedfellows Fighting Big Tech

Coming from two different perspectives, there’s an emerging consensus on blunting the market power of digital platforms. Now the parties have to legislate.

BY BRITTANY GIBSON

MAJOR BIPARTISAN legislation has been an endangered species in Congress the past several years. But an unlikely confluence of events has created a coalition of lawmakers, from far left to far right, in favor of regulating Big Tech monopolies. Now the question is whether they can actually legislate on an issue where they have stumbled into common cause.

Other attempts at bipartisanship this year have thus far led to partisan standoffs and filibuster threats. But the impact of a 16-month investigation and report from the House Judiciary Committee’s Antitrust Subcommittee, alongside a culturewar fear of internet censorship on the right, has generated the conditions for Congress to act. Regulating technology companies was found to be one of two top areas of consensus in a poll of senior staffers on the Hill, conducted by Locust Street Group and Punchbowl News.

The Democrats’ report on competition in digital markets, published last October, was meant to rally bipartisan support for its expansive set of legislative recommendations. It came after months of hearings in the Capitol and the field put a spotlight on antitrust generally and Big Tech specifically (especially after calling the CEOs of Apple, Google, Facebook, and Amazon to testify last summer). But the subcommittee’s work doesn’t have a straightforward path to success, and the potential unification behind it wasn’t immediate.

While Democrats are in control of the House, the whole caucus is not likely to be on board with the Antitrust Subcommittee’s recommendations. The House Judiciary Committee recently adopted the subcommittee report, but Democratic Rep. Zoe Lofgren (D-CA), who represents a district around Silicon Valley, submitted an “Additional Views” document for consideration, which stressed enforcement agencies and courts’ role in antitrust over congressional action. Lofgren, a senior Judiciary Committee member, is not the only House Democrat with long-standing ties to the tech industry. Those members may be reluctant to break up or significantly regulate the platforms.

That makes conservative buy-in on any legislation even more important, not just to break a filibuster in the Senate, but even to pass the House. This alone narrows the scope of any potential compromise. While the most progressive Democrats have pushed to extend the anti-monopoly conversation to other sectors of the economy, Republicans have made clear the limits of their interest. “I see the need in Big Tech because of the abuse … I haven’t seen that in other areas,” Rep. Ken Buck (R-CO), ranking member of the Antitrust Subcommittee, told The Wall Street Journal.

On Big Tech specifically, there is dialogue between Democrats and Republicans. Buck became convinced during the course of the subcommittee investigation that something needed to be done. In response to the Democrats’ report, Buck wrote his own response to tackling Big Tech, called “The Third Way,” along with Republican Reps. Doug Collins (R-GA), Matt Gaetz (R-FL), and Andy Biggs (R-AZ). (Collins is no longer in Congress.) The report agrees that “the ball is in Congress’ court” when it comes to regulating the power and market share of the Silicon Valley platforms. This raised hopes that a big bipartisan agreement in the House could put pressure on the Senate to act.

Buck’s sway over his colleagues is limited. When the full Judiciary Committee adopted the subcommittee report, they did it on a partyline vote, with no Republicans in support. That does not bode well for a bipartisan solution.

But things are changing quickly. On May 5, after Facebook’s Oversight Board (sometimes referred to as its own Supreme Court) decided it would continue its ban on Donald Trump’s account (while also saying it did not have the authority to permanently block the former head of state), Rep. Jim Jordan (R-OH), the most powerful Republican on the House Judiciary Committee, tweeted: “Break them up.” Jordan borrowing progressive Sen. Elizabeth Warren’s Big Tech battle cry was especially shocking, because ahead of the Antitrust Subcommittee’s Big Tech CEO hearing, he shared an internal memo warning that antitrust law shouldn’t “punish success” or focus on the “mentality that ‘big is bad.’” This internal memo was written by Tyler Grimm, a Jordan staffer who is particularly hostile to changes in antitrust.

Buck also responded to the Facebook Supreme Court decision by calling for antitrust reform. But Jordan’s three-word tweet signals an opening, because he has much more influence over the Republican caucus. If he is breaking with his more corporate-friendly staffers and demanding action, that could move other members.

The Facebook decision is just the latest Republican grievance with how Big Tech does business. Since the 2020 general election, GOP outrage has grown over the belief that Big Tech companies are censoring their speech in ways that specifically target conservative lawmakers, content creators, and then-President Trump. The January 6th insurrection at the Capitol signified this shift. After months of Trump’s tweets being flagged or hidden behind a factchecking square, Twitter and Facebook decided to cut Trump’s main lines of communication, suspending his profiles on their respective platforms. Two days later, Twitter made its decision permanent.

By Saturday, January 9, Google and Apple had both banned the conservative alternative social networking platform Parler from their respective mobile app stores. Parler, like Trump’s specific social media

accounts, was targeted for its connection to the Capitol invasion and singled out as the platform of choice for riot organizers (although Facebook and its groups were also used). Parler was subsequently kicked off Amazon’s website hosting service, and without a new host, the app went dark for several weeks.

These unilateral Big Tech business decisions have brought Republicans around to questioning the extent of Big Tech’s power, and its ability to limit communication. What if Amazon Web Services was separate from Amazon the online retailer? Is Facebook (and its Supreme Court) so powerful that it can bar an elected official? Should Google be separated from YouTube and Google ad services?

Another major factor is a Supreme Court opinion authored by Clarence Thomas, arguing that tech platforms should be regulated like public utilities. This again was in reaction to claims of Trump censorship, as Thomas claimed that “there is a fair argument that some digital platforms are sufficiently akin to common carriers,” meaning they would have to treat everyone on their platform in a neutral manner. Like Jordan, Thomas carries a lot of weight with conservatives, particularly on legal issues.

Democrats reacted to the Facebook decision by calling for Trump to be banned forever from the platform, but Sen. Elizabeth Warren’s (D-MA) statement ended with a similar call to action for antitrust regulation. While Democrats and Republicans differ on their grievances with Big Tech, they are landing in places similar enough to find legislative compromise.

House Antitrust Subcommittee chair Rep. David Cicilline (D-RI) recognizes this opportunity. He conceded to Axios earlier this year that large sweeping reform bills are unlikely to happen. But multiple more-targeted bills could be on the table. Cicilline suggested that ten or more bills would be harder for the likes of Google, Apple, Amazon, and Facebook to attack, even with their expansive lobbying budgets.

“It also is an opportunity for members of the committee who have expressed a real interest or enthusiasm about a particular issue, to sort of take that on and champion it,” Cicilline told Axios.

Cicilline’s office declined to comment to the Prospect on the status of any legislation.

Bipartisan Big Tech legislation would exclude Sen. Amy Klobuchar’s (D-MN) antitrust reform bill that would have an impact on all sectors of the economy, strengthening federal enforcers to stop mergers and acquisitions deemed anti-competitive. Klobuchar, Cicilline’s counterpart on the Senate Antitrust Subcommittee, has started her own series of hearings focused on Big Tech, the first of which focused on Apple and Google’s app store gatekeeping.

Klobuchar did get one victory on May 13, as the Senate Judiciary Committee passed a bill with bipartisan support increasing merger filing fees, giving more money to antitrust agencies to enforce the law.

Subcommittee ranking member Sen. Mike Lee (R-UT), like Rep. Buck, has rhetorically gone after big technology companies. Before the app store hearing, Lee and Klobuchar co-authored an aggressive letter to Apple, after the company initially said it wouldn’t send a representative to the hearing. At the hearing, Lee grilled Apple and Google about how they treat other companies that want to reach smartphone users through their app stores. While he mentioned Parler and its removal from the app stores, he also had broader interests, inquiring about the treatment of the app developer Tile when Apple released a competing product.

Lee has often made rhetorical hay with Big Tech firms, but has shown little appetite to formulate actual legislation that would get in their way. He would have to set aside his libertarian economic philosophy to join in agreement on a regulatory regime.

Both sides will also benefit from the added support of organized labor. The failed Amazon warehouse union campaign in Bessemer, Alabama, earlier this year revived tensions between Big Tech monopolies and labor. In addition to labor leaders looking to support organizing within major corporations like Amazon, they have the added task of defending union workers who work in shipping. UPS, FedEx, and the U.S. Postal Service all do business with Amazon, but its own shippers, who are often non-unionized contract workers, are edging them out of work.

It’s unclear where all this will lead. But the groundwork laid through reports and hearings has met an unique opportunity to partner with conservative Republicans on this specific slice of antitrust reform. The dynamic is unlikely to make broad change, if it does anything at all; anger between the parties remains high. But on Big Tech reform, there’s a sliver of possibility, a Venn diagram that is increasingly overlapping with time. n

Reps. Ken Buck (R-CO) and Jim Jordan (R-OH) had been on opposite sides of the debate, but now both support breaking up Big Tech.