Time to Trust Bust Big Tech
Antitrust legislation is the tool conservatives need to do something about corporate power.
Voters want Congress to act immediately to rein in Big Tech. According to a Pew Research survey conducted over the summer, 68 percent of Americans believe that “social media companies have too much power and influence in today’s economy.” Among conservatives, that number jumps to an astounding 80 percent.
But many House and Senate Republicans remain reluctant to act. In an effort to establish a free speech standard for online platforms, some Republicans have voiced support for Section 230 reform. This is a worthwhile effort that should absolutely continue. Unfortunately, however, it fails to account for our political reality: Democrats now hate free speech and will oppose any and all efforts to promote it online.
To get Section 230 reform done, Republicans will need to take back the House, the Senate, and the presidency. That can’t happen until at least 2025. Meanwhile, systemic online censorship is becoming more normalized, and the largest Silicon Valley tech companies are growing larger and more powerful by the day. Doing nothing is not an option. Members of Congress are elected for this term, not a future term, and Republicans should work across the aisle now to rein in Big Tech.
So, where does that leave us?
While the issue of “content moderation” is highly partisan, the issue of concentrated corporate power is significantly less so. In a rare example of healthy debate and bipartisan cooperation, the House Judiciary Committee approved six antitrust bills in June. These bills are now expected to receive a vote before the full chamber this winter.
More than a few Republicans have expressed support. In the House, Rep. Ken Buck (R-Colorado) has championed all of these bills, arguing that government overreach has effectively created these Big Tech monopolies by refusing to properly enforce antitrust law, and therefore Congress has an obligation to act. Buck is joined on each of these bills by at least three Republican cosponsors, and in some cases many more.
Meanwhile, the antitrust debate is heating up in the Senate. Variations on four of these bills have already been introduced, with household names like Sen. Mike Lee (R-Utah), Sen. Josh Hawley (R-Missouri), Sen. Ted Cruz (R-Texas), Sen. Chuck Grassley (R-Iowa), and Sen. Tom Cotton (R-Arkansas) leading the way.
Some Republicans have thrown cold water on these bills, arguing that they will not stop the problem of Big Tech censorship. That is not true. The reason we worry about censorship from digital information technology companies is because of the market dominance of these platforms. We would not need to have this conversation if there were 20 Facebooks owned by 20 different companies and none of them had a stranglehold on the digital public square.
If we address the monopoly power of Big Tech, it will chip away at their ability to censor. Again, we can’t pass a bill that truly promotes free speech while the Democrats remain in power. But these antitrust bills will substantially reduce the ability of these companies to engage in anti-competitive conduct and amass unchecked power, the power they have already exerted to capture the digital public square and ban conservatives from participation. Competition could very well be the long-term answer to censorship, as many on the right have insisted for years, but we can’t have true competition until we ensure that the market is free and fair.
Let’s get down to brass tacks. Here are seven substantive ways Congress could immediately crack down on Big Tech next year:
The State Antitrust Enforcement Venue Act: The “venue bill” should be the easiest antitrust bill for Republicans to support. In short, it empowers states by allowing them to have more control over where their antitrust cases are litigated. The federal government already enjoys this benefit under federal law. This bill simply adds states to the mix, recognizing that states play an important role in antitrust enforcement.
State attorneys general have been clamoring for this change for some time. Earlier this year, the National Association of Attorneys General sent a letter to Congress in support of the bill. A total of 48 state attorneys general signed the letter, including 24 Republicans and 24 Democrats. They argue that Big Tech gamesmanship on venue selection, which has led to long trial delays and the expenditure of significant state resources, has prevented them from properly enforcing the law.
The Merger Filing Fee Modernization Act: Conservatives instinctively oppose any effort to expand bureaucracy, so it should come as no surprise that some Republicans don’t like the idea of providing the Federal Trade Commission (FTC) or even the Department of Justice (DOJ) with more funding. But when it comes to antitrust enforcement, the FTC and the DOJ have been sorely lacking in resources, which has only encouraged the proliferation of monopolies and the normalization of illegal anti-competitive conduct during the last several administrations.
This bill would update the filing fees for corporate mergers for the first time in two decades. Mergers valued at $1 billion or more would pay higher fees, while smaller mergers would pay less. Conservatives have historically supported funding for law enforcement, and that’s exactly what this is. Ensuring that the antitrust divisions of these agencies are properly funded will protect consumers by helping to prevent illegal mergers, while holding monopolies accountable.
The American Choice and Innovation Online Act: Market-dominant online platforms are essentially gatekeepers that have the power to determine what consumers buy and what they don’t. When these platforms abuse this power by self-preferencing their own products or discriminating against the products of rival businesses, they provide themselves with an unfair market advantage over their competitors. This is a bad outcome for both small businesses and consumers.
Worse still, small businesses are entirely reliant on these platforms to distribute their products to consumers. They have absolutely no leverage whatsoever. When one of these platforms decides to compete directly with the small business, they run every play in the book: using the small business’s own consumer data against them, suppressing their product listing in search, and sometimes even cancelling the small business’s account outright without cause. Small businesses do great on Amazon, until Amazon decides to destroy them and capture their market share. No wonder small businesses felt compelled to write to Congress about these antitrust bills when Amazon threatened them!
The particulars of the bill are simple. Market-dominant online platforms like Amazon would no longer be allowed to self-preference their own products or engage in discriminatory practices that harm their smaller competitors. Meanwhile, antitrust enforcers would be provided with new tools to go after this illegal conduct, potentially providing the small businesses being harmed with immediate needed relief instead of waiting years to adjudicate.
The Platform Competition and Opportunity Act: Most venture capitalists will tell you the same thing: The goal of any tech start-up is to grow large enough or show enough potential to be acquired by one of the Big Tech giants. This distortion of the market has created perverse incentives that limit innovation while reducing competition. A classic example of this is the case of the “killer acquisition,” where a Big Tech company purchases a smaller company expressly for the purpose of shutting them down and discontinuing their products. This has become all too common in Silicon Valley. And unfortunately, these transactions are rarely scrutinized by antitrust enforcers.
This bill is narrowly designed to explicitly prohibit Big Tech from acquiring potential competitors or engaging in acquisitions for the purpose of shoring up their dominance in a particular market. The onus would be on the Big Tech companies to demonstrate that their acquisition is not anti-competitive and that it serves a legitimate purpose that will bolster innovation and benefit consumer choice.
The Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act: Most Americans have thought about deleting their Facebook account, but two problems are holding them back. The first problem is obvious: when it comes to social networking, people want to go where their friends are. Strong network effects discourage people from switching to a smaller competing service. The second problem is that people are afraid of losing their photos, their videos, and their edgy status updates from their youth. In other words, they don’t want to lose their data.
The ACCESS Act seeks to address both problems by establishing data interoperability and portability requirements for Big Tech companies. Under the legislation, users would essentially own their data and have the ability to port their data to another service. Switching from one platform to another would be simple and easy, a boon to would-be competitors to entrenched Big Tech incumbents. Additionally, the bill would create new consumer protections to ensure that all user data remained private and secure.
The Ending Platform Monopolies Act: Many of these bills take great care to approach antitrust enforcement with a scalpel, but it’s fair to say that this one goes for the jugular. This is the “break up Big Tech” bill. It implements “line-of-business” restrictions that make it illegal for Big Tech companies to own an additional line of business if it results in the company harming competition and advantaging its other products or services. No more conflicts of interest. No more monopoly power. Break them up.
While it’s clear this would have a dramatic impact on the major four Big Tech companies—Google, Amazon, Facebook, and Apple—this isn’t that radical of a solution. Congress has a long history of implementing line-of-business restrictions in a variety of industries in order to weaken the power of monopolists. By reducing the incentives for companies to engage in anti-competitive behavior entirely, and by creating a structural solution to end existing Big Tech monopolies and prevent future Big Tech monopolies from forming in the first place, this bill could change our economy for the better. It would easily be the most significant legislation passed by Congress in the 21st century.
The Journalism Competition and Preservation Act (JCPA): While the JCPA wasn’t part of the House Judiciary Committee’s antitrust package, and it still remains in committee, it is an important bipartisan piece of legislation that is sorely needed. This bill would require Big Tech platforms to fairly compensate news publishers for the content the platforms appropriate and monetize. Two companies—Google and Facebook—gobble up 70 cents of every advertisement dollar spent even though they produce none of the content.
Currently, antitrust law actually protects Google and Facebook from publishers. Imagine that. The JCPA would permit publishers of all sizes to negotiate for just compensation and would strengthen their negotiation position by establishing baseball-style arbitration to ensure a fair deal. Rep. Ken Buck has added critical language to the JCPA that guarantees conservative publishers cannot be discriminated against when deals are negotiated and that small regional and local publishers benefit from any deal struck with the platforms. A coalition of conservative publishers—including Newsmax, the Washington Times, the Washington Examiner, the Daily Caller, and the Salem Media Group—has endorsed the JCPA.
It’s time to put up or shut up.Most House and Senate Republicans understand the existential threat Big Tech poses to our democracy. I think it’s fair to say that they are acting in good faith and earnestly want to get something done. Unfortunately, there aren’t that many options in the near-term. We have these bipartisan antitrust bills in front of us, or we can sit this fight out and wait.
But if we wait, we know what’s going to happen. Big Tech companies like Facebook and Google showed us exactly what they are capable of doing in 2020. The censorship is only going to get worse. So do we do something, even if it’s not perfect, or do we do nothing, and hope and pray that our democracy survives it? It’s a tough decision for policymakers, but one thing is certain: Republican voters aren’t going to be satisfied with the “hope and pray” strategy.
Jon Schweppe is director of policy and government affairs for the American Principles Project.