Congress Eyes Antitrust Changes to Counter Big Tech, Consolidation

WASHINGTON – Democrats and Republicans have been discussing the need to strengthen U.S. antitrust laws. This year you can test how seriously they want to take the legislation.

Congress is considering the most significant changes to antitrust law in decades, including several proposals that have bipartisan support. Lawmakers want to raise the bar on takeovers by dominant companies, make it easier for the government to crack down on anti-competitive behavior and possibly force some tech giants to separate their various businesses.

For these measures to become law, lawmakers must overcome their general unease with dominant companies, especially in the technology sector, and reach out to interest groups that disagree on the need for an overall overhaul or targeted changes to the antitrust laws.

There is bipartisan interest in antitrust reform or amendment, and I think legislation will be passed, said a former Justice Department antitrust lawyer.

Allen Grunes,

now at Brownstein Hyatt Farber Shreck LLP. The challenge will be to find a political consensus.

Thursday, a Senate subcommittee led by Senator Amy Klobuchar (D., Minn.) began the first of a series of hearings on changes to antitrust law. She opened the session by challenging the panelists to respond to the tech giants, and not by throwing popcorn at a CEO on the screen….. but by responding with action, by responding with legislation.

Ms. Klobuchar presented a package of proposals, including new civil penalties for antitrust violations and changes in legal standards to make it easier to challenge merger proposals and business practices that threaten competition.

Republicans have indicated they are open to proposals, which Democrats have supported. Senator Josh Hawley (R., Mo.) wonders aloud whether Congress should consider curbing mergers of dominant companies or banning self-distribution.

Amazon.com Inc.

use their own platforms to promote their products and services over those of their competitors.

CEOs, including Amazon.com’s Jeff Bezos, Alphabet’s Sundar Pichai and Facebook’s Mark Zuckerberg, were sworn in prior to Congressional hearings in July.

Photo:

Almond Ngan/Press pool

Congress can adopt a policy that says you can be a neutral platform where you can sell third-party products like Amazon, or you can sell those products yourself, but you can’t do it all at once, Hawley said.

Amazon claims to offer consumers the best product, regardless of the manufacturer.

Meanwhile, the House antitrust committee, led by Rep.

David Cicillin.

(D., R.I.) will hold a hearing Friday on a bipartisan proposal to allow local news stations to compete in negotiations with dominant platforms like

Alphabet Inc.

Google and

Facebook Inc.

Both political parties have been rocked by concerns about powerful technology companies like Google, Amazon and Facebook. The debate over the power of these companies in the American economy – and in much of American society – has turned antitrust law from a politically backward area into a hot topic in Washington.

Last year, a House committee released a report by Democratic commissioners that concluded, with the agreement of some Republicans, that loopholes in antitrust law and weak enforcement had allowed technology companies to gain monopoly power, hurting innovation and limiting consumer choice.

For Democrats, concerns about technology are at the forefront of a broader concern about dominant companies in all sectors taking over the market and tipping the balance at the expense of consumers.

It’s not just technology, it’s cat food for coffins, Klobuchar said in an interview before the hearing.

Mark my words: Change is coming. The laws are coming.

– Rep. David Cicilline (D., R.I.) in February.

Republicans agree that dominant tech companies have troubling power, motivated at least in part by a belief that they treat conservatives unfairly. They also see more antitrust regulation as a better approach than direct government regulation of the market.

There seems to be a broad consensus that the status quo is not working, the senator said.

Mike Lee

(R., Utah), the top Republican on the Senate Antitrust Committee, said recently, while warning that some Democrats might want to use this moment to radically change our antitrust system.

While Republicans are unlikely to support the Democrats’ most ambitious proposals, they do seem to have more in common with each other than in the past.

Makan Delrahim,

an antitrust official in the Trump administration at the Justice Department before he left office, said it makes sense for Congress to impose a heavier legal burden on companies with a market share of 50 percent or more to prove that their future acquisitions will not harm consumers. This proposal is included in the Klobuchar bill.

Big business is prepared to oppose many measures that it considers a threat to its profits. In 2020, Facebook and Amazon spent more on lobbying than any other American company to try to influence antitrust and other legislation. The tech giants say they face fierce competition that forces them to constantly innovate, and that they have captured a large market share because consumers love their products.

Meanwhile, Facebook and Google are fighting parallel battles in federal courts. Last year, the Justice Department and state attorneys general filed antitrust suits against Google, while the Federal Trade Commission and most states sued Facebook. All these cases involved allegations of illegal monopolisation.

New York Attorney General Letitia James spoke of a broad antitrust lawsuit against Facebook brought by the Federal Trade Commission and a bipartisan group of 46 states’ attorneys general against the company’s tactics against its competitors. Photo: Saul Loeb/ Agence France-Presse/Getty Images

These lawsuits could take several years or longer, meaning antitrust review will move closer to the legislature in 2021.

On the Democratic side, the more liberal members of the party are calling for radical changes.

Cicilline said he is considering legislation that would require technology companies to separate widespread digital platforms from other business areas. He called the idea a Glass-Steagall for the Internet, referring to the 1933 law that separated traditional banking from investment banking on Wall Street. The Republicans claim this would not have been intentional.

Rep. David Cicilline (D., R.I.), who was featured in February, said he was considering legislation that could split up some large technology companies.

Photo:

Joshua Roberts/Persole

Mark my words: Change is coming. There will be legislation, Mr. Cicilline said at a hearing last month.

Reporter Ken Buck

(R., Colo.), a senior member of the House GOP antitrust subcommittee, told his GOP colleagues that what they see as anticonservative bias can be addressed by changes to antitrust laws that reduce the power of technology platforms and allow for more competition.

Buck recommends a scalpel-like approach aimed at the technology sector and says he is willing to require dominant technology companies to prove that their acquisition plans will not harm competition.

I see the need for Big Tech because of the abuse, he said in an interview. I haven’t seen that in other areas.

Buck, referring to Amazon, Apple and Google, said he was open to the idea of prohibiting discriminatory behavior or self-deception when a technology platform has a monopoly right, including requiring a monopolist to split up its business units so it can’t make its own product and compete with other products in the marketplace. Mr. Cicilline also discussed the limitation of self-declaration.

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Lawmakers on both sides of the aisle have also called for increased funding for the FTC and the Department of Justice, including an increase in the fees large companies must pay when they submit merger proposals for review.

The Republicans have their own ideas that are not necessarily supported by the Democrats. These include proposals to bring the FTC’s antitrust enforcement procedures more in line with those of the Department of Justice or to transfer all antitrust enforcement authority to the Department of Justice rather than dividing it between the two agencies.

The Biden administration could play a key role in the legislative dialogue, but it has not yet committed to a detailed agenda. The White House is still considering candidates for the position of antitrust chief and Justice Commissioner for the FTC and is looking for politically savvy candidates who know they will have to work with Congress, according to a person familiar with the matter.

Last week,

President Biden

titled

Tim Wu,

law professor at Columbia University for a senior position on the White House National Economic Council. Wu wrote the 2018 book Curse of Dignity, in which he denounced the state of American competition policy.

The government also plans to

Lena Khan,

a critic of big tech companies and former antitrust official in the House, for a vacant seat on the FTC.

Email Brent Kendall at brent.kendall@wsj.com and Ryan Tracy at ryan.tracy@wsj.com.

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