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Protocol | Policy

Sweeping tech antitrust bills advance, but opposition is louder too

Questions about the scale remain, and the skeptics are growing on both sides.

Rep. David Cicilline

Rep. David Cicilline led an investigation of Apple, Amazon, Facebook and Google.

Photo: Bill Clark/Getty

A House committee has advanced its sweeping tech antitrust package — and the political and corporate forces opposing it made clear they won't go quietly even as Congress wrestles with how to push back against consolidation.

During a two-day session that began Wednesday morning, went until dawn Thursday, and picked up again a few hours later, members of the House Judiciary Committee bickered about censorship and critical race theory, cited concerns about Chinese tech and scrambled traditional political alliances.

Despite opposition from both some Republicans and some Democrats on the panel, the committee eventually got around to sending all six of the bipartisan bills that emerged from its months-long investigation of Apple, Amazon, Facebook and Google to the House floor.

The package of bills is "going to make a real difference in the lives of small businesses, entrepreneurs, our economy broadly," said Rep. David Cicilline, who led the investigation and shepherded the bills as head of antitrust subcommittee.

For months, tech antitrust has been gaining new momentum in Washington, with a roster of Republicans and Democrats in an uneasy alliance to explore potential reforms. But since the introduction of the bills earlier in June, some members of Congress have stepped forward to say the new era of antitrust aimed at Big Tech is going too far. In some cases, the number of lawmakers could signal trouble for the bills, and the ongoing debates may yet shape the scope of the anti-monopoly moment.

The most aggressive of the six bills could force major tech companies to spin off certain business lines. Others would force Big Tech to share the data that can help upstarts compete, prompt the companies to deal more equitably with those rivals or slow the mergers that help the companies grow.

Throughout the marathon markup, four distinct sets of voices emerged: groups of Democrats in support and in opposition, and groups of Republicans likewise in both camps.

Core Democrats on the committee, including Cicilline, successfully pushed the bills through with help from a group of Republicans who often claim Big Tech silences conservatives and portray powerful companies as a threat to small businesses and consumers.

A bigger group of Republican members, led by Rep. Jim Jordan, expressed their party's traditional skepticism of expanded antitrust enforcement as a government power grab on innovation to push back unsuccessfully against the bills. They often sidelined the debate with claims of censorship, debates about Section 230 and attacks on critical race theory. They were joined in opposition by a small group of Democrats, mostly from California, who said they shared concerns about competition in tech, but disagreed with the bills.

"This bill would essentially, metaphorically, take a grenade and just roll it into the tech economy," Rep. Zoe Lofgren said on Thursday, referring to the bill that allows government enforcers to target "conflicts of interest" arising when Big Tech companies both operate platforms and also participate on them, such as Amazon competing with its own marketplace merchants. Lofgren, a Bay Area Democrat, repeatedly cited the jobs the companies provide as she sought to scale the bills back during the committee's slog through them.

Some moderate Democrats had already been echoing the companies' alarm in a way that could imperil the package in a House floor vote.

"The scope and impact of these bills could have a tremendous impact on the products and services many American consumers currently enjoy and the competitiveness of our innovation economy," said a letter from the leaders of the New Democrat Coalition, which represents nearly 100 lawmakers who adhere more to the political center.

It's not clear how many House Democrats fully agree with the letter, but Democrats control the House narrowly and can spare just a handful of votes before they start needing Republican votes to pass bills.

Big Tech firms and their Washington trade groups spent the days leading up the markup saying the bills would destroy conveniences such as Google Maps or Amazon Prime shipping. One group compared the bills to China's centralized, authoritarian economy. The U.S. Chamber of Commerce, Washington's largest pro-business trade group, warned of "dangerous consequences for America." And Apple CEO Tim Cook personally lobbied House Speaker Nancy Pelosi, she said on Thursday. He had told her they were rushed and would hurt consumers, according to the New York Times.

"If you have a substantive concern, put it forth as Congress works its will," Pelosi said she told Cook.

Tech or antitrust?

The scope of lawmakers' ongoing work on the bills is in some ways still up for debate. On the Senate side, despite similar bipartisan frustrations with Big Tech, the leaders of the antitrust subcommittee have aimed for more general reform of the competition laws. Although many proposals might particularly touch on tech, they come at a moment when advocates, lawmakers and others are also concerned about consolidation in health care, agriculture, airlines, telecommunications and other sectors.

The Senate approach seemed to dribble into some of House's debates on its tech-specific bills: Several times, skeptics suggested not that the bills should be more gentle, but that they should potentially be more broad.

"I think that all of us need to ask the question of, are we looking at too few companies?" said Rep. Darrell Issa, a California Republican, suggesting that the bill on data sharing should apply to Microsoft — after days of questions about whether the bills would, or should, apply to the software giant. (The markup began one day after Microsoft became the second U.S. company, after Apple, to pass $2 trillion in valuation.)

At one point, Republicans suggested Microsoft had written the definitions in a bill that excluded it from being covered. Later, Rep. Pramila Jayapal, the Washington state Democrat leading the separations bill, said the proposal does in fact did cover the company, which lies just outside her district.

Other lawmakers said they wanted the bills to apply even more broadly, voting for an amendment from Lofgren that would extend the data bill to a larger group of companies worth over $250 billion, including credit card companies, Walmart and other firms.

Lofgren denied that her amendment was a so-called poison pill aimed at killing the bill, although at least one lawmaker, Republican Rep. Chip Roy, said he believed it was. Outside groups supportive of Cicilline's bills also noted that broader bills would almost certainly attract even more corporate opposition and could give a broader range of lawmakers pause.

"It's a poison pill," said Sally Hubbard, director of enforcement strategy at Open Markets Institute. Hubbard, who has written about consolidation across the economy, worked with the House probe. She agreed the panel should "address the crisis of concentration across the entire economy" eventually, but said for now it should focus on the four companies it has already dug into.

Cicilline, Jayapal and others also argued against broadening any of the bills' scope, saying their investigation was the basis of the package, and that measures to change laws for other areas of the economy could have unintended consequences or address less well-established issues.

"We have a proven record of competition being stifled in the markets that GAFA dominates," said Alex Petros, policy counsel at the group Public Knowledge, who called the four companies "the most urgent set of targets."

He and Hubbard both said a broader approach to antitrust reform beyond tech should come next from the House, after the tech package.

"I don't think they're mutually exclusive," Petros said. "In fact, Congress should do both."

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