A tiny team of House staffers could change the future of Big Tech. This is their story.
How a handful of fastidious and aggressive House staffers spent the past year working out how to curb Big Tech's power.
Slade Bond was fretting ahead of a congressional field hearing in Colorado last year: The lightbulbs in the courtroom where it would be held needed to be changed, and quickly. It was time to find someone with a ladder.
Bond, one of several staffers working for Congressman David Cicilline, knew that the hearing would be a blockbuster. After months of hard work, he and his team had finally convinced executives and lawyers from Sonos, Basecamp, PopSockets and Tile to come out, in public and on the record, about their allegations that some of the biggest companies function as monopolies. If all went well, it could be a game-changer in the antitrust world, empowering thousands more small firms to band together against the companies that some people see as the Big Tobacco of our time: Apple, Google, Amazon and Facebook.
But Bond is a perfectionist as well as press-oriented, and he knew that every single detail had to be camera-ready. The lights in the auditorium were dim, and he knew it wouldn't look good livestreamed on YouTube or C-SPAN. That's how Bond, the day before the hearing, found himself approaching the University of Colorado Law School's maintenance staff with a request: Could they replace the lightbulbs in the Wittemyer Courtroom?
"He was standing next to maintenance people on a ladder replacing light bulbs," said one source close to the House Judiciary Committee's antitrust investigation into the tech industry, which took over a year to complete. "He just wanted to make sure that everything was right all the time, even if it was, 'We have one of the biggest hearings of the investigation coming up, but let's make sure that the lightbulbs get replaced.'"
Cicilline, Bond's boss, has been dubbed "Big Tech's biggest threat" and "the House Democrat taking on Silicon Valley" in glowing profiles lauding him for undertaking one of the most extensive, serious and bipartisan investigations into corporate power that Congress has seen in decades.
But Cicilline is a high-ranking member of Congress. He ran the Democrats' messaging arm as they impeached President Trump smack in the middle of the tech antitrust investigation. Over the past six months, he's been navigating the dual crises of the coronavirus pandemic and a civil rights uprising. In September, he launched a bid to become assistant speaker of the House. In other words, he's been very busy.
The real driving force behind the sweeping probe of Facebook, Google, Amazon and Apple has been Cicilline's team of dedicated staffers. In reporting by Protocol, they were described as fastidious and aggressive, and passionate about proving that the companies have unfairly leveraged their enormous market power to crush competitors and buy out potential rivals. "They've revived a tradition in Congress that has sadly been forgotten, which is Congress can actually wield power and have an important impact," said Luther Lowe, senior vice president of public policy at Yelp.
They've revived a tradition in Congress that has sadly been forgotten.
Staffers on Capitol Hill are supposed to make it appear that their bosses, the elected members of Congress, act alone. But behind the scenes, Bond and his team — Lina Khan, Phillip Berenbroick and Amanda Lewis — often worked 70-hour weeks to keep the probe on track, all the way from the highly orchestrated questioning of the big tech CEOs down to whether Basecamp's David Heinemeier Hansson wore a jacket during his testimony. (He did, but over a T-shirt.) The future of antitrust in the U.S. will be indelibly tied to the work of these relatively unknown staffers, who wielded massive influence over issues that matter to tech executives and their businesses — for better or for worse.
On Tuesday, they finally released the fruits of their labor: a 449-page report laying out what they've discovered over the past 15 months and how they think Congress should proceed.
Tech companies and Republicans have accused them of pursuing a single-minded, politicized vendetta, promoting an aggressive interpretation of antitrust laws that does not appear to be popular with most of their party. "The staffers that David Cicilline and Elizabeth Warren have chosen to surround themselves with represent the far-left fringe of the Democratic Party," said Jesse Blumenthal, the head of tech policy with the Koch network. "It's certainly a vocal fringe, but they are far from representative of left-of-center or Democratic views of antitrust more broadly."
On the other side, progressives have alleged Cicilline's staff did not go far enough in their efforts. They didn't, for example, issue subpoenas, one of the investigative tools available to them, to any of the companies that they've been studying.
Amid the pressure, the House Judiciary Committee's investigation charged ahead, amassing millions of documents and holding a highly publicized hearing featuring the tech industry's most powerful executives.
This account of the team's work on the investigation is based on interviews with over a dozen people close to the investigation, including congressional aides, lobbyists, antitrust experts, lawyers and former government officials. Spokespeople for Cicilline, members of the antitrust subcommittee, and the full House Judiciary Committee declined to comment, citing a committee policy against staffer profiles.
Building a team
Bond, the antitrust subcommittee's chief majority counsel, has been a lawyer with the panel since 2014, when it was led by Republicans and called the Subcommittee on Regulatory Reform, Commercial and Antitrust Law. (Cicilline in 2019 renamed it the "the Subcommittee on Antitrust, Commercial and Administrative Law," symbolically emphasizing the "antitrust" part of its jurisdiction when Democrats flipped the House.)
A lawyer by trade and a devoted Hill staffer, Bond is intense and confrontational, known to never be without a venti cup of coffee with at least a couple extra shots of espresso. He's also flashy: He was named one of the most "stylish men of Capitol Hill" in 2014.
Even though his background in tech is limited, he expressed interest in the competition issues facing the tech industry since he first joined the committee. He first held meetings with companies alleging antitrust violations by the "Big Four" more than five years ago, and one source recalled watching Bond ask European regulators questions about tech antitrust "way before it was popular."
Cicilline was expressing an interest in launching an investigation by the time he became the chairman in January 2019. Indeed, Cicilline's determination to prioritize the issue and keep it in the headlines over the past year has been a crucial part of the investigation's success. His allies described him to Protocol as genuinely curious and interested in the topic, as well as keenly aware that there are political points to be won by taking on the big tech companies.
As Cicilline and Bond planned the investigation, Cicilline insisted he wanted to keep it bipartisan, pulling together the populist leanings within the Republican party with the progressive skepticism of corporate power of the Democrats to create an effort that could supersede the tribal party affiliations that define Congress today.
But Bond couldn't do that alone. So he was given the go-ahead to hire a team of young, ambitious experts, all of whom had deep ties to the various corners of antitrust law. First, he tapped Khan, the superstar academic whose writing about Amazon touched off a movement to reshape the future of antitrust law.
"Lina is not trying to get a job in a Biden administration or get a job at a platform or at a big law firm — that's not what her aim is," said Matt Stoller, her former colleague at the anti-monopoly think tank Open Markets Institute. "She wants to really achieve certain social goals, like having a more equitable economic order and political order."
Khan, who former colleagues described as soft spoken yet commanding, poured her "sweat and blood" into the investigation, according to a tech company lobbyist. She ultimately left her fingerprints all over the investigation. "I felt like I could see Lina's work everywhere in the [CEO] hearing," said Zephyr Teachout, a law professor at Fordham University, pointing out that many of the questions harkened directly back to her academic work. Khan was Teachout's policy director when she ran for New York governor in 2014.
Bond also hired Berenbroick, a policy director with digital rights group Public Knowledge and a prominent net neutrality advocate with close ties across Washington, and Lewis, a counsel on detail from the Federal Trade Commission, one of the two major agencies in charge of antitrust regulation in the U.S. Berenbroick and Lewis, with their respective nonprofit, think-tank sensibilities and FTC chops, were "a really great mix of minds," said one lobbyist with a company that has raised antitrust concerns with Apple and Google.
The team's work was helped throughout by aides including Reed Showalter, a fellow who was hired in January 2020, Anna Lenhart, a fellow who previously worked on AI ethics at IBM, and Joseph Van Wye, the House Judiciary Committee's legislative aide.
"This is a mighty staff of five or six that has done the work of 30 or more," Cicilline said last week at the last hearing of the investigation. "They have been a really important and indispensable part of this process and every member of this dais is grateful for all the work that's been done."
"The subcommittee assembled a team of people with very diverse skills, united around their passion for promoting strong competition policy and progressive values," said Gene Kimmelman, a senior adviser for Public Knowledge. Kimmelman, who formerly served as the chief counsel for the Department of Justice's antitrust division and the chief counsel for the Senate Judiciary antitrust subcommittee, provided advice and guidance to the staffers throughout the investigation.
And Cicilline gave them a "really long leash" to pursue what they wanted to, said one tech company source.
David vs. Goliath
The core team shared out the companies: Bond took Facebook, Khan handled Google, Lewis looked after Amazon and Berenbroick dealt with Apple. They each faced the wrath of a veritable army of lobbyists, lawyers and advocates both within the companies and outside of them, logging hundreds of hours of meetings and ultimately studying millions of documents, hundreds of pages of "questions for the record," and dozens of proposals from academics.
"It is a tiny staff," said Teachout. "When you think about David and Goliath, those images don't even get the scale when you imagine the number of staffers involved in getting Jeff Bezos' sixth lawyer coffee. There are more people doing that than there are working on the staff on the antitrust subcommittee."
Roger McNamee, an early Facebook investor and venture capitalist who has pushed for sweeping changes in Silicon Valley, said that when he first started working with the committee in the early days of the investigation last year, its members were asking him how to think about and approach the tech industry.
"In those days, I think they had a fantastic understanding of antitrust law and, at best, a limited understanding of tech," McNamee said. "Roll the camera forward to the summer of 2020 and they're getting ready for the hearing … it's really extraordinary how clear their understanding is of how the industry operates."
This is a mighty staff of five or six that has done the work of 30 or more.
Of course, the staffers didn't operate alone. They were backed by dozens of small tech companies who offered insight into what it's like to work with the Big Four, dozens of antitrust academics and lawyers who offered advice every step of the way, and advocacy groups and anti-monopoly think tanks.
And on Capitol Hill, the staffers worked closely with fellow Democratic staffers, especially the senior staff of House Judiciary Committee Chairman Jerrold Nadler, and members of the antitrust subcommittee.
During the first months of the investigation, the Democrats made it their mission to include Republicans, including Rep. Jim Sensenbrenner, the top Republican on the antitrust panel, and Rep. Doug Collins, who was then the ranking member of the full committee. For the first half of the investigation, Daniel Flores, the chief minority counsel, was involved in all of the meetings and workshops, according to one company representative — at least, until Collins left.
Cicilline and his staff claimed they put a high premium on bipartisanship throughout the investigation into the tech companies, even as Republican lawmakers, tech lobbyists and free market advocates accused them of approaching the endeavor with a preset desire to "break them up."
"I find it difficult to believe this was an open-ended inquiry," said Blumenthal with the Koch network. "They were seeking justification for the decision they'd already made."
Ultimately, they were not able to issue a bipartisan report, following extensive lobbying by Jordan and his staff and a separate effort by Rep. Ken Buck. The Democrats put out their own report and recommendations, while Republicans offered separate proposals.
But a tenuous bipartisanship had remained intact for the first several months of the investigation, as Republican staff actively participated and weighed in while tempering expectations about their ultimate interest in changing the antitrust laws. "I firmly support this initiative," Collins said at a hearing last June. "The conversations we will have in our committee are critical as Congress evaluates the depth, breadth and importance of these tech issues and whether any amendments to the antitrust laws are needed."
But then Collins announced his run for Senate in January 2020. That meant he had to step down as the top Republican on the committee in February and was replaced by Rep. Jim Jordan, a fervent Trump ally with a knack for stirring the pot.
Not that all was rosy between Collins and the Democrats before his departure: In February, Collins publicly threatened the bipartisanship of the investigation after Nadler mentioned "breaking up all the large companies" at a closed-door event. But sources said the real challenges came when Jordan took over and chose not to retain Flores, the chief minority counsel who Bond and the other staffers already had a relationship with and who was heavily involved in the fact-finding portion of the probe. Flores did not respond to a request for comment.
"I think it was complicated to have a shift in Republican leadership when so much groundwork had been laid for a bipartisan process with specific members of Congress and specific personalities, and it just slowed things down," Kimmelman said.
It was hard to pin down how Jordan felt about taking on the tech companies, but he was far more critical of Cicilline's efforts than Collins had been. When Cicilline proposed a merger moratorium during the pandemic, Jordan led a letter against his idea. "We are deeply skeptical of what Cicilline's proposing here," a GOP source told Protocol at the time, calling it an "antitrust power grab in the middle of a crisis."
This is a serious hearing, not Diamond and Silk 2.0.
And Jordan accused the Democrats of excluding Republicans from the talks with the big tech CEOs ahead of the hearing, drawing pushback from a Democratic aide, who said, "It's clear Mr. Jordan is confused. This is a serious hearing, not Diamond and Silk 2.0."
On the other side of the aisle, progressives were pushing the subcommittee to question the CEOs one by one in order to better nail them down.
"The difficulty of analyzing their businesses virtually and in a single day will be compounded by the likelihood that the CEOs, whose businesses are, of course, distinct, will work together, if allowed to testify side by side, to evade and deflect questions while obscuring critical answers the Subcommittee seeks," the coalition of groups wrote in a letter weeks before the hearing.
Meanwhile, Cicilline's staffers were wrangling day and night with the companies and their teams of lawyers over every detail of the CEO hearing — first whether they'd agree to it, then what the format would look like, whether it would consist of multiple panels focused on individual companies, and whether it would involve the full committee or just the subcommittee.
It takes a lot
The antitrust investigation was conducted by one of the most active committees in Congress during a time marked by vitriolic division and gridlock. Yet somehow, by the time the CEO hearing rolled around over the summer, it was applauded as exceptionally well-informed, as Democrats laid out a methodical antitrust case against the biggest tech companies, though it was not the bipartisan blockbuster that they'd hoped for as multiple Republicans focused heavily on the issue of online censorship rather than antitrust.
The Democratic staffers were deeply involved in coordinating behind the scenes ahead of the CEO hearing, according to several sources. They held mock hearings, anticipating the many ways the tech executives would try to deflect and avoid answering direct questions. They strategized over how to ensure the witnesses didn't filibuster. And they worked with every member's office to ensure they had the materials they needed and understood what the obtained documents said.
"I've been doing this stuff for 20 years," said the lobbyist working for a company that has raised concerns about Apple and Google. "I've never experienced staffers or [legislative assistants] or counsel on the committee more prepared for a hearing than this one."
Making the investigation work took a chairman who was singularly committed to the issue. It took a staff that was insulated from the impeachment process; none of the Democratic antitrust subcommittee staffers worked on impeachment directly. It took an academic like Khan, who proposed radical ideas that would make the average congressional staffer cringe; an operator like Berenbroick, who had testified before Congress before and resisted enormous pressure from the largest telecom companies during the net neutrality fight; and a secret weapon like Lewis, with eight years of experience at the FTC, during which she helped challenge the proposed merger between Staples and Office Depot.
It took countless workshops, briefings, background memos and meetings over the course of months, both at the staff and member level, to get the members of the subcommittee up to speed with notoriously complicated issues like monopolization law and what the concept of "consumer welfare" means.
"House Judiciary Committee hasn't held hearings like this in around 50 years, and is now positioned to take the lead on this issue," read a document circulated by the advocacy groups Demand Progress and the Institute for Self-Reliance to all the members of the antitrust subcommittee at the beginning of the investigation. "This presents an opportunity for both Congress and the general public to learn about the market power and business models of these platforms, identify any problematic anti-competitive practices, and point the way towards potential solutions."
It took sensitive relational work to encourage small companies to speak up about their negative experiences with some of the most powerful firms in the country.
"That requires building trust," said one antitrust expert who has worked with the committee for over three decades. "It doesn't happen right away."
And ultimately, all of that work had to happen over Zoom and phone calls, as the pandemic required lockdowns across the country.
Fortunately, the investigation probably held the members' attention because it revolved around a highly political topic with a lot of built-in news coverage. The tech industry is surrounded by a surplus of reporters willing to write about every move by regulators and members of Congress, and beating up on Big Tech has become an increasingly appealing position for both Democrats and Republicans since the 2016 election. Ultimately, no member was able to resist the limelight when they were given the opportunity to grill some of the most recognizable business leaders of our time: Jeff Bezos, Mark Zuckerberg, Tim Cook and Sundar Pichai.
When Bond was first trying to lay the groundwork for the investigation last year, he approached multiple former government officials and Capitol Hill veterans to figure out how to pursue a productive, successful congressional investigation. Kimmelman said Bond approached him two years ago to begin discussing how Congress used to hold "detailed hearings on a complicated industry sector for the purpose of oversight and legislation," today a rare endeavor.
"I think the most important thing that we gravitated to … was the fact that there's a natural process where, if members know that important companies are being brought before the committee and there's going to be public hearings, they need to get educated about issues and they need to be prepared for the questioning," Kimmelman said.
Proposals to fear?
Ultimately, none of the Republicans on the subcommittee signed onto the Democrats' final report. But Rep. Ken Buck, the most sympathetic Republican on the subcommittee, offered his own report highlighting the proposals that he believes could gain bipartisan support, such as giving more resources to the antitrust enforcement agencies and making it easier to challenge acquisitions. He said he agreed with nearly all of the report's conclusions, beyond the legislative proposals.
The big tech companies emerged from the investigation bruised after enduring months of extensive, single-minded congressional scrutiny. But it's yet to be seen what the probe will actually mean for them in the long run. Right now, the Federal Trade Commission is nearing the end of its antitrust investigation into Facebook, and the Department of Justice is rounding the final bend toward its impending case against Google. One of the main purposes of a congressional investigation, beyond ginning up energy for legislative action, is to put political pressure on the agencies to act.
According to the text of the final report, the subcommittee compiled an oversight record that includes 1.3 million documents, testimony from 38 witnesses, a hearing record of more than 1,800 pages, and interviews with 240 tech industry players.
And the staff left open the possibility that the battle still is far from over. "While we determined that insufficient time exists to pursue these additional materials during this Congress," they wrote, "the committee expressly reserves the right to invoke other available options, including compulsory process, to obtain the requested information in the future."