Is House Judiciary Report a Fix for Big Tech, or a One-Sided Political Document?

October 17, 2020 – Responding to the landmark report of the House Judiciary Antitrust Committee on October 6 about how to deal with big tech companies, two panels addressing the report on October 9 reprised significantly different perspectives.

At an event hosted by Public Knowledge that featured the chairman of the subcommittee, the report dumping on Big Tech was warmly greeted by most panelists, with one notable dissent. Little surprise that the event was titled “Big Tech’s Big Competition Problem.”

At Competition Policy Internet’s “Future of Antitrust Event,” by contrast, seasoned antitrust experts expressed concern that the Democratic majority report was contradictory and not informed by history. Some even felt that it was attacking the companies – Google, Apple, Amazon and Facebook – because of their very success.

Rep. David Cicilline, D-R.I., the subcommittee chairman who participated in the Public Knowledge event, said that his report sets forward how competition can, in his view, be reintroduced to America’s technology marketplace. He said tech platforms are using their power to act as gatekeepers and crush competitors.

While he said the subcommittee doesn’t know all the appropriate remedies, they now believe that adding structure, updating and modernizing our antitrust statutes, properly staffing antitrust agencies, and pushing courts to correct antitrust policy are all viable strategies.

A House report that is big, bold, bipartisan, and unafraid to tackle ‘bullying’

“This document is big, bold, and despite what the press would say, is bipartisan,” said Gigi Sohn, distinguished fellow at Georgetown Law Institute. She argued that rather than a bunch of talking points, the report was “real evidence,” and was shocked at the comprehensiveness of the recommendations, especially the “10 overturned Supreme Court precedents.”

Stacey Mitchell, co-director at the Institute for Local Self-Reliance, was “struck by the clarity of language,” describing the report as “long but very accessible and not afraid to use terms like ‘bullying’.”

“Congress is back!” shouted Alex Petros, policy council member at Public Knowledge, praising the report for “going in depth on the problems and offering in depth solutions.”

Sohn, Mitchell, and Petros agreed that the document was a sign that Congress was reasserting itself on the antitrust landscape.

Geoffrey Manne, president and founder of the International Center for Law and Economics, was the lone dissenter on the Public Knowledge praise-fest.

Manne disagreed that the report was comprehensive: “The plural of anecdote isn’t data.” Manne said that the report made no effort to look at how tech companies benefit, and instead assumed that all they did was cause harm. Problems emanating from the tech industry, he said, are at the margin.

Moreover, it is “extremely worrying” that the subcommittee report would go “right to enforcement,” especially when there was “no effort made to assess how those implementations might impose unintended consequences.”

“This is a political document,” Manne said, despite Republican support for a modicum of its aggressive antitrust proposals. Referring to issues around the tech industry’s power, he said, “We should be having these discussions; I just don’t think this report is going to engender them.”

Petros said that Reps. Andy Biggs, R-Ariz. and Doug Collins, R-Georgia, signed on the report “and they’re not the most bipartisan members of Congress.”

Among antitrust experts and former enforcers, a more measured and cautious tone

At the CPI event, by contrast, Andrew Gavil, senior of counsel at Crowell and Moring and antitrust law professor at Howard University, was among those who felt the report was not fully even-handed.

While the country should not be wed to current antitrust laws, “one of the strengths of U.S. antitrust law as been its ability to adapt.”

He also said that we shouldn’t “pay lip service to consumer choice” and then throw the baby out with the bathwater because the benefits of these companies haven’t been fully fleshed out yet.

In other words, there is more to the economy than Big Tech.

Tim Muris, senior counsel at Sidley and Austin and former chairman of the Federal Trade Commission, said that the report attacked companies based upon their success. Trying to structure antitrust regulations around social and political issues was misplaced.

Muris said he doesn’t object to strong antitrust action: However, if technology companies are going to be regulated, they need to all be looked at individually. In other words, not all big tech companies are successful and not all of them have a large marketshare.

Daniel Sokol, law professor at the University of Florida, said that was appropriate to revisited standards for anticompetitive mergers, and that such reviews are likely to become a lot stricter now.

Tad B. Lipsky, assistant professor and director of the Competition Advocacy Program at the Global Antitrust Institute, said as Manne had done on the Public Knowledge panel: The House report was vague and one-sided.