The clock is ticking for the left’s whole-of-government push to weaponize antitrust law for political gain. Time is running out on the legislative calendar as the November midterm election approaches, with both chambers of Congress widely considered to flip to Republican control.
In an interview last week with Axios, Rep. Pramila Jayapal (D-Wash.) said that the momentum for sweeping antitrust “reform” is on her side and once again called for abolishing the filibuster in order to pass her progressive agenda. In reality, Jayapal’s legislative package is dying on the vine and nowhere close to being ready for a floor vote.
It has been nearly a year since the House Judiciary Committee marked up a slate of six antitrust bills that would impose all sorts of new regulations on companies above a government-determined size. After a grueling 29-hour marathon markup, the Democrat-controlled committee reported out all six of the bills despite conservative opposition.
So far, Jayapal has failed to unite fellow House Democrats behind her antitrust package. Just days before the Judiciary markup, eight House Democrats sent a letter to House Speaker Nancy Pelosi (D-Calif.) urging her to delay the markup so members could have sufficient time to debate and review the legislation. Immediately following the markup, House Majority Leader Steny Hoyer (D-Md.) threw ice-cold water on the antitrust package in remarks to the press, saying that legislation addressing competition in the technology sector should be “constructive, not destructive.”
It appears that Jayapal is no closer to uniting her party than she was a year ago. In a May 10 op-ed for Cyberscoop, Rep. Eric Swalwell (D-Calif.) came out against the antitrust bills, citing harm to his constituents and pressing national security concerns. Swalwell called for Congress to take a step back and consider the consequences of pursuing sweeping changes to antitrust law without proper debate and consideration. Swalwell echoed these concerns in a subsequent Axios interview, saying that Democrats should be wary of throwing “the baby out with the bathwater” in pursuing antitrust changes.
Antitrust legislation on the Senate side is moving at a similarly glacial pace. Sen. Amy Klobuchar (D-Minn.) has introduced several antitrust bills that have failed to come up for a full floor vote. Klobuchar is so dedicated to ramming her bills through that she is tanking far less controversial antitrust legislation — last week, Klobuchar blocked an attempt by Sen. Mike Lee (R-Utah) to move his “State Antitrust Enforcement Venue Act” by unanimous consent.
In January, the Senate Judiciary Committee marked up the “American Choice and Innovation Online” Act, legislation that would ban targeted companies from promoting or selling private-label goods alongside the name brands. Senators offered a staggering 117 amendments to the Klobuchar bill, a fairly clear indication that a lot of work on the bill remains to be done. Even though Klobuchar has publicly stated that Senate Majority Leader Chuck Schumer (D-N.Y.) promised to bring these antitrust bills to the floor, Schumer’s office has told advocates that he is only willing to call up legislation that can get 60 Senate votes.
Conservative lawmakers have largely opposed these bills, complicating the path to 60 Senate votes. A coalition of 35 conservative and free-market groups and activists recently urged senators to reject antitrust legislation that would give the government new power to reshape the economy.
Lee put it perfectly in a recent hearing, saying: “What do we gain by giving deep-state bureaucrats control over Big Tech? They don’t want to break up Big Tech to protect us, but to control it and use it against us.”
There are several glaring flaws with the antitrust bills that disqualify the package from garnering conservative support. All of the bills create an unprecedented “covered platform” designation that targets a select few companies based on market capitalization and monthly users, opening the door to rampant crony capitalism. Most bills set the designation at $600 billion in market cap and 50 million monthly users, but lawmakers have shown a willingness to tweak the designation to exempt their preferred companies. If a business practice is bad, it should be illegal for every business, not just businesses with high stock prices.
The antitrust bills do absolutely nothing to address conservative censorship and will likely exacerbate government abuse of conservatives if signed into law. All of the bills give the Biden administration new regulatory authority to control American companies. If a company needs to seek approval from the Biden administration to conduct routine business activity, it will likely ramp up conservative censorship to avoid government persecution. If you think Silicon Valley censors are bad, imagine them working hand-in-glove with unelected Biden bureaucrats to push their shared censorship agenda.
Public support for tech regulation is crumbling — according to a recent Pew Research poll, just 44 percent of Americans think major technology companies need additional regulation, down from 56 percent in April 2021. Thirty-five percent of conservative Republicans think tech companies need more regulation, down from 59 percent in 2021. 58 percent of liberal Democrats support more tech regulation, down from 70 percent in 2021.
Despite wishcasting from Jayapal and others, there is little momentum for the left’s antitrust crusade. Democrats are not united on any legislative package, and consistent conservative opposition vastly complicates the path to 60 Senate votes. Public support for additional tech regulation is rapidly eroding as families struggle with pocketbook issues like inflation and rising gas prices. Lawmakers would be wise to use the limited floor time left to address issues that voters care about instead of pursuing this left-wing antitrust power grab.
Tom Hebert is federal affairs manager at Americans for Tax Reform and executive director of the Open Competition Center.