Four Things You Need to Know About the Big Tech Antitrust Legislative Battle

In recent years, small tech companies – including app companies – have mounted a campaign for Congress to enact antitrust legislation to specifically deal with the market behavior of tech giants like Google, Facebook, Apple and Amazon. A chief complaint of small tech companies has been that these “Big Tech” platforms favor their own products and disadvantage small competitors.

In the last Congress, there were numerous hearings on Big Tech and competition issues, as well as a major report delivered by the majority staff of the House Judiciary Committee’s Subcommittee on Antitrust, Commercial and Administrative Law about the online market power and behavior of large online tech companies. This was the most significant spotlight Congress had placed on tech and antitrust policy since congressional hearings on Microsoft’s business more than 20 years ago. In a major development in this Congress, antitrust legislation was approved by both the House and Senate Judiciary Committees to specifically address the large online platforms’ business practices.    

Despite the progress, there has been no floor action in Congress on substantive antitrust tech legislation except for the State Antitrust Enforcement Venue Act, which recently passed the Senate. It would allow state attorneys general to determine where antitrust cases brought by them will be heard rather than companies seeking to move the cases to a company-friendly venue.

With each day bringing us closer to the midterm elections, moving major tech antitrust legislation forward becomes more challenging – but is still possible.

Here are four things you need to know about policymakers’ engagement on Big Tech competition issues.  

There is bipartisan support for Big Tech antitrust legislation.
While bipartisan agreement is elusive on several major issues this Congress, it is noteworthy that there is some bipartisan support for antitrust bills. The chief Republican sponsor of the American Innovation and Choice Online (AICOA) bill is Sen. Chuck Grassley (R-IA), Senate Judiciary Committee Ranking Member. The lead Republican sponsor of the House version of AICOA is Rep. Ken Buck (R-CO), the top Republican on the House Judiciary Committee Antitrust, Commercial and Administrative Law Subcommittee. AICOA, as well as other tech-focused antitrust bills, were voted out of the House and Senate Judiciary Committees with bipartisan support. The Open App Markets bill sponsored by Sens. Richard Blumenthal (D-CT), Marsha Blackburn (R-TN) and Amy Klobuchar (D-MN) received an even stronger bipartisan vote in the Senate Judiciary Committee than AICOA. It would establish rules to foster competition in the app store marketplace. It is important to recognize that the champions of these antitrust and tech market remedy pieces of legislation are seasoned legislators with years of experience in the give and take needed to broker legislation to the finish line.
Not all Democrats support the Big Tech bills approved by the Senate and House Judiciary Committees.
On the Democrat side of the aisle, some members have real concerns with the Big Tech antitrust bills. While the Biden administration’s antitrust officials support AICOA, several members of the California delegation have raised concerns that these bills target four companies, three of which (Google, Facebook and Apple) are headquartered in California. These members, joined by congressional Democrats from other high-tech areas of the country, have been sensitive to concerns raised by the large tech companies about consumers losing popular services, or the actions causing harm to national security, cybersecurity and privacy from this legislation. Given the opposition of some members of the Democratic Caucus and the close margin in the House, the tech-focused antitrust bills have not received a vote on the House floor, even though they were reported from committee close to a year ago.

On the Senate side, the lead Democrat sponsor of the AICOA Sen. Klobuchar is pushing for a vote this month, and sponsors of the Open Apps Market Act also want their bill to get to the Senate floor. Proponents and opponents of these bills are engaged in vigorous advocacy given the potential for a vote. Bill sponsors have recently revised AICOA to address some concerns and there are calls for additional changes from several Senate Democrats that may give some supportive Republican Senators pause. A key factor for Senate Democratic leadership in deciding whether to schedule this vote will be where vulnerable Senate Democrats up for reelection in November stand on the bill. Proponents of the bill cite polls that voters generally support regulating the tech companies, but Senators with tough races could view this as a vote they would rather not take this close to the election. Even veteran Senators will take all variables into consideration when they are in cycle. The definition of a win applies to both Democrats and Republicans as they navigate turbulent political waters. For each member, that answer might vary.
Focus on Big Tech will continue in the next Congress.
There is some thinking that Big Tech can breathe a sigh of relief if legislation does not get enacted this Congress and the House is under Republican control next year. Even if that happens, there will still be congressional attention paid to Big Tech but there will be a shift in focus. Republicans will want to address the tech platforms’ content moderation policies, which they generally view as discriminating against conservative voices. Their calls for action on tech have been and will continue to be concerns about censorship by Big Tech. Legislation to reform Sec. 230 of the Communications Act of 1934, which gives the platforms immunity for the content carried on their platforms, is likely to be a continuing focus of Republicans in the next Congress. Sec. 230 reform is viewed as key to stopping Facebook and Twitter from silencing voices such as former President Trump for violating their content policies. Also, given the bipartisan support for tech competition legislation in this Congress, even if there is a change in control, there would still be some continuing interest in tech competition issues, but passing legislation would be a very uphill battle.
Dealing with Big Tech will remain an administration priority
Even if Big Tech antitrust legislation does not get over the finish line this year, Big Tech will remain under the spotlight for the duration of the Biden administration. Last July, President Biden signaled his strong support for addressing anti-competitive behavior in an Executive Order (EO) on Promoting Competition in the American Economy, which specifically referenced the dominant internet platforms and called for a whole of government approach to promote competition in the U.S. economy. In response to the EO, the Department of Commerce’s National Telecommunications and Information Administration (NTIA) is drafting a report for the Chair of the White House Competition Council on improving competition and reducing barriers to entry in the mobile apps market ecosystem and has solicited public comment. The administration has also put in place a strong team at the White House, Federal Trade Commission and Department of Justice to continue reviews begun under the previous administration of the dominant internet platforms’ business practices. As part of their reviews, they are looking at previous mergers and acquisitions that allowed the tech platforms to reach the size they are now.
There is no question that Big Tech companies’ honeymoon with Washington is a thing of the past. Arguments from small tech companies, including app companies, have gained traction in Washington and Big Tech will still be playing defense even if the Republicans take control of the House next Congress. Under that scenario, one can expect serious consideration of Sec. 230 reform legislation so Big Tech companies will still have a full plate in the next Congress.

Claudia James is Cogent’s go-to strategist on issues pertaining to technology, telecommunications, media and intellectual property. She has a strong reach to Senate Democrats as well as Democrats on the House Judiciary and Energy and Commerce Committees and has played a leading role in passing two Freedom of Information Act reform bills and achieving clients’ legislative objectives in eight major mergers. For Claudia’s complete bio, click here.