Congress can be like a frozen lake in the Midwest, solid on the surface but with schools of fish beneath the ice. While Democrats are locked into conflict over spending, and Republicans burrow into opposition, senators from both parties are cooperating to craft bipartisan legislation to subject a handful of Big Tech companies to stringent new antitrust regulations.
If they succeed, these senators are setting out to prove that with a little hard work and cooperation, leaders in Washington can still reach across the aisle to harm consumers and the economy.
For months now, several have been discussing legislation to curb the power of Big Tech. One of them, Sen. Chuck Grassley, the ranking member of the Senate Judiciary Committee, is concerned about business concentration. He’s also righteously steamed about major social media platforms that thumb the scales against conservative content. In this, he’s joined by fellow Judiciary member Sen. Ted Cruz, as well as Sen. Tom Cotton and other conservatives.
Taking on Big Tech is a red-hot passion for Republicans. Posts, books and videos with a conservative slant have been de-platformed by social media companies, and some right-leaning organizations have been de-monetized, with scant explanation. While these companies have a First Amendment right to sort their content, to be exiled by them is to be excluded from much of the national conversation.
Sen. Grassley thus sees a need to curb such excessive power. For months now, he has worked behind the scenes with his Democratic colleague, Sen. Amy Klobuchar, to craft legislation to trim the sails of “dominant platforms,” clearly aimed at Google, Amazon, Apple and Facebook.
In a recent webinar interview, the Iowa Republican told me that the bill he is negotiating with Klobuchar must not become an extension of five heavy-handed House bills advanced by antitrust subcommittee Chairman David Cicilline and other progressive leaders. I’ve since had a glimpse of the latest iteration of the Senate draft, which retains the worst features of the House bills with some new additions.
As with the House bill, the Senate draft assumes companies break the law when they “preference” their own goods or services. This could make it illegal for the retailer to highlight any of the products it sells to its Prime subscribers. It would hobble Apple by restricting its ability to promote its apps and preinstall useful features. It could conceivably prevent Google from displaying search results from YouTube.
Companies vilified as violators would be subject to fines of 15% of revenues, more than double Amazon’s net profit margin. Yet companies can be keelhauled in this way for “unfair” preferencing – a legal standard resting on a vague, subjective adjective that would leave regulators and politicians free to pick and choose their targets. Some see this as an import of the baseball bat antitrust tactics of European Union regulators. In truth, the Senate draft would give progressive regulators at the Federal Trade Commission the kind of unmoored, discretionary power that authorities in Russia enjoy.
The Klobuchar bill would be an economic demolition derby. Degrading Amazon, for example, would ripple out a chain of damage to hurt small- and medium-sized businesses that rely on this online sales network. Faced with crippling legal liability if it were to engage in any number of common retail practices, Amazon would be forced to close its marketplace to these sellers to remain competitive. These provisions, aimed at tech companies today, would be sure to follow the path of President Biden’s 72 executive actions on antitrust. Leaders in manufacturing, agriculture, finance, and retail are trying to keep their heads down. But antitrust action against Big Tech today will surely clear the path to them all tomorrow.
In sum, the Klobuchar draft – as it has so far unfolded – lacks the clarity and consistency of the current legal benchmark, the consumer welfare standard. For 45 years, courts have held that antitrust actions should be taken only when a proposed merger, acquisition, or practice harms consumers. Thus, courts protect competition to protect consumers. The Klobuchar draft would protect competitors, which would lead to no end of special pleading. The result would be the politization and weaponization of the law.
If Sen. Grassley and other conservatives want to counter the treatment of conservative speech, they should consider the Platform Accountability and Transparency Act (PACT), co-sponsored by Sen. John Thune. This law would require social media platforms that enjoy Internet liability protections to provide clear standards for content moderation, fuller explanations of why speech has been removed, and ways for consumers to swiftly appeal a decision.
Republicans who support sweeping antitrust legislation to get back at Big Tech over deleted posts and tweets are setting off an atom bomb to kill a weasel. The ultimate casualty could be the free market itself.