On Friday the House Judiciary Committee’s subcommittee on antitrust introduced five bills designed to address the findings of their 16-month investigation into Apple, Amazon, Google, and Facebook. The legislation, introduced with various Republican cosponsors, represents the first comprehensive legislative effort to address the dominant market power and potentially anti-competitive practices of the major Big Tech companies.
The “techlash,” in other words, is finally more than just strongly worded letters, pointed questions with little follow-through, or made-for-YouTube chest-thumping at congressional hearings. It now has meaningful and bipartisan legislative form, with a guarantee of committee consideration.
For years, concerns about Big Tech have been dismissed as “grievance politics” with partisan camps trenching and re-trenching over misinformation policies, accusations of censorship, and general outrage politicking over banned accounts or accounts not banned enough. The tech companies and their network of policy allies have relied on this pattern as a reason to eyeroll, cluck, and moralize about the unserious and scattershot aims of a Congress doing nothing more than demagoguing a successful industry while trying to control speech online.
It is striking, then, that these bills have nothing directly to do with speech. Rather, they represent a singular focus on market power, discrimination against competitors, and manipulation of competition. This legislation is a wager that the more partisan aspects of platform expression can be solved by addressing its root enabler: a concentration of economic power sustained via uncompetitive means.
To that end, the five bills are designed to address specific practices and policies that the subcommittee believes have disadvantaged competitors, and unfairly and uncompetitively entrenched market dominance.
There is no doubt these bills will be controversial, if for nothing else than the action itself is so unusual. It has been decades since Congress has roused itself to take a critical look at how its century-old antitrust statutes are being applied, despite ample evidence that such a review is warranted.
There will also be disagreement in the approach. Some of the legislation defers tremendous authority to the Department of Justice and the Federal Trade Commission in a manner that will concern strict adherents to the prerogative of Congress’s Article I authority.
If Congress intends this legislation to have certain outcomes, those should be stated clearly. Vague deference to a faceless and changing bureaucracy leads to ideological weaponization, capture, and mission creep.
Likewise, legitimate issues may be raised with the structure of the merger and conduct bans, which may have the effect of blocking more pro-competitive mergers and services than the legislation intends. And then there is the question of whether parameters should be written for the entirety of the economy, rather than just the technology sector. If problems exist in the enforcement of antitrust, shouldn’t they be fixed for everyone?
Republicans Can Disagree, But They Cannot Disengage
The presence of disagreement, however, should not de-legitimize or undermine this effort. Tension points within the legislative process are nothing if not opportunities for creativity. And for Republicans, in particular, who have now spent years raising the alarm about the perils of Big Tech’s speech control, it is simply unacceptable to meet this moment with no ideas of their own. Republicans may be out of power in both the House and the Senate, but no one has turned off their brains.
This is especially true given what Republicans and their voters have witnessed over the last year. Critical reporting on the son of a presidential candidate was banned from circulation just weeks before an election, a trend that continues with Big Tech barring criticism of leftist figures and policies. Parler, a small business alternative to Twitter, was knee-capped from existence by a collective effort from Apple, Google, and Amazon, rending the “build your own platform” argument moot.
Throughout the COVID outbreak, the biggest speech platforms in the world named themselves the arbiters of scientific information, banning discussion of treatments and COVID-origin theories now shown to have merit. Just last week, YouTube banned the account of a U.S. senator for “COVID misinformation,” after it had previously banned the sworn congressional testimony of medical doctors for the same reason.
Evidence continues to mount that Amazon, one of the largest retail platforms in the world, abuses its power to manipulate and rent-seek from smaller competitors while wielding its dominance ideologically against books and films. Google acts aggressively, and potentially illegally, against competitors in the digital ad markets.
Facebook, no longer just a “site for sharing pictures,” is starting its own currency. Its platform is the market access point for millions of small businesses throughout the country, and it is facing an antitrust lawsuit of its own. Nearly all of this was before Big Tech banned a sitting president of the United States from accessing the primary speech and voter engagement platforms in America.
For Republicans, It’s Put Up or Shut Up Time
These platforms are changing the nature of expression and thought in America. They are also changing our markets. From a policy standpoint, this can no longer be ignored. While Republicans have plenty of proposals to deal with the speech concerns, they have been reticent to address the economic dominance that makes control of speech at scale possible.
Engaging on this point, particularly in antitrust, should be intuitive for conservatives. Without robust antitrust enforcement, massively concentrated power eventually falls instead to a thicket of complex regulatory policies, which are far less precise, targeted, or efficient—all while easily captured by the regulated parties. (There is a reason, after all, that Facebook opposes antitrust enforcement but is already asking Congress to regulate it.)
This is a phenomenon that free-market economists have long understood. George Stigler, a foundational figure of the Chicago School of economics, concluded that the Sherman Antitrust Act “substantially reduced the amount of effective collusion” in the market, and viewed antitrust policy as a means of dealing with concentrated economic power in a way that was “efficient and . . . free of gross waste.” In 1952, Stigler argued for breaking up large corporations, arguing, “This, I would emphasize, is the minimum program”—that is, it simplest—“and it is essentially a conservative program.”
There is, of course, a balance in addressing problems in the marketplace, one that must not answer the problem of concentration by merely moving it from privately held hands to public ones. But on Big Tech’s economic power, the message constantly pushed by Big Tech and their advocates that there is “nothing to see here, nothing to do here” has been and continues to be roundly and thoroughly discredited.
Antitrust enforcement cannot solve every problem related to Big Tech, but it has a critical role to play in ensuring the market is working as intended for all comers and competitors, not just Google, Amazon, Apple, and Facebook. For Republicans, it’s time to put up or shut up. They don’t have to agree with every Democrat proposal. But the market power of Big Tech must be addressed, and it’s time Republicans presented some creative ideas on how to do it.
This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.
