The House Judiciary Committee voted in the wee hours Thursday to block the hugest tech companies from buying their competitors and disadvantaging their rivals — part of a series of bipartisan moves, stretching overnight toward dawn, aimed at hobbling Silicon Valley’s reigning powers.
Still to come later Thursday is a vote on the panel’s starkest proposal: a bill that could make it easier to break up tech giants like Google and Facebook.
Taken together, the package of bills would represent the most significant changes to U.S. antitrust law in decades.
But reaction throughout the Capitol to the panel’s tech antitrust legislation showed that the effort faces serious friction from lawmakers of both parties, despite years of growing anger at the industry among Democrats and Republicans in Congress.
The most notable pockets of resistance during Wednesday’s and Thursday’s 19-plus-hours-and-counting markup came from lawmakers from California, the home base of Google, Facebook and Apple. One lawmaker not on the committee, Silicon Valley-based Democrat Ro Khanna, separately told POLITICO that he will ask a fellow Californian, Speaker Nancy Pelosi, to retool the legislation.
“Many of these bills are going to die in the Senate if they even get out of the House,” committee member Darrell Issa (R-Calif.) predicted after 10 p.m., during an hours-long slugfest over one of the package’s less controversial bills.
Still, the committee pressed on into the night and until daybreak Thursday, in a debate that included side arguments about Chinese oppression, “cancel culture,” Dr. Anthony Fauci, the Jan. 6 assault on the Capitol, and accusations that the bills would go too easy on Microsoft.
The series of votes came just 12 days after the panel’s Democratic leaders announced five bills that are aimed squarely at just a handful of the largest tech titans: Google, Facebook, Apple and Amazon. A sixth bipartisan bill would help state attorneys general seize home-court advantage in antitrust suits.
The most controversial bills include one that would prohibit the biggest tech platforms from acquiring potential rivals. That ban, which the panel approved just before 2 a.m. Thursday, is aimed at preventing the kinds of deals in which Facebook bought the popular photo-sharing app Instagram and Google acquired the wearables company Fitbit.
About 5 a.m., the committee voted to bar platforms such as Apple and Amazon from giving their own products unfair advantages over rivals. Then it took a break, scheduling a 11 a.m. debate on one final bill: a measure that would give the Justice Department and the Federal Trade Commission more leeway to sue to break up the biggest tech platforms.
Those bills have given the most pause to critics who maintain they could have far-reaching implications for the U.S. economy.
Before they could even get to those, however, the committee spent seven hours debating a bill that would make it easier for users to transfer their data from one tech platform to another.
One recurring theme during the hours of debate was uncertainty over whether the package’s provisions would affect Microsoft, which has not been a focus of the committee’s antitrust investigations but ranks second behind Apple in the list of the world’s most valuable companies. Some Republicans accused the bills’ authors of crafting them to exempt the Redmond, Wash.-based Windows- and Xbox-maker.
Rep. Pramila Jayapal (D-Wash.), who took part in the panel’s 18-month investigation and is a sponsor of several of the bills, said she wasn’t sure why members assumed that the bill wouldn’t apply to Microsoft.
“The assumption that Microsoft is not covered is just not correct,” she said.
The committee rejected attempts to broaden some of the packages’ provisions to apply to a much wider array of businesses, which would have swept up payments companies like Visa, Mastercard and PayPal, as well as a GOP proposal to address alleged “shadow banning” of conservatives by Twitter.
House Judiciary Committee Chair Jerry Nadler (D-N.Y.) compared the legislation to the 1996 Telecom Act that revamped the telecommunications industry and created many of the existing rules for the online world.
“Today is the start of an opportunity for the United States to reassert its leadership role on this issue internationally,” Nadler said in opening the markup. “With this package of historic legislation, we have the opportunity to take control of our own destiny — to be a global leader in developing rules of the road for the digital economy.”
Alliances, rifts in both parties
The bills’ supporters include both liberal Democrats and conservative Republicans, united in seeking to rein in companies they accuse of misusing their vast power. Nadler, who had helped steer the impeachment of former President Donald Trump, and Rep. Matt Gaetz (R-Fla.), one of Trump’s most ardent supporters in Congress, laughed at one point at the fact that they finally agree on something.
But the cracks within both parties quickly began to show.
“I know this is a moment where there’s been an effort to have bipartisan support,” Rep. Zoe Lofgren (D-Calif.), who has close ties with Pelosi, said as she prefaced an objection to one of the bills. “But I think there’s serious problems with this proposal.”
Rep. Ted Lieu (D-Calif.) complained that the committee has not held a hearing on the package of bills.
“Many members of this committee are now grappling for the first time with the complex field of antitrust law as applied to the complicated area of computer technology,” Lieu said. “The proposed legislation has enormous consequences and Judiciary Committee members who are not on the subcommittee have not heard from a single expert witness, software engineer, or third-party seller to understand how this recently introduced bill text would actually operate in real life.”
The bills faced a stream of amendments throughout the day, and key players like Pelosi and President Joe Biden have yet to weigh in publicly on the antitrust package — nor has Trump, who still wields significant influence over congressional Republicans. Only two of the bills have companion versions in the Senate so far.
Another Californian, House Minority Leader Kevin McCarthy, has been actively opposing several of the bills and intends to put out his own tech legislation, which he says will better align with conservative values. Ohio Rep. Jim Jordan, Judiciary’s top Republican, gave a short preview before the markup began Wednesday, saying the GOP is working on bills to repeal online companies’ liability protections, allow users to sue over alleged censorship and speed up the legal process to break up the tech giants under antitrust law.
Ultimately, the most serious threat to the bills’ fate will probably come from within the Democratic caucus. The leaders of the centrist New Democrat Coalition, one of the largest caucuses in Congress, have been agitating against the package, saying some of the proposals could could result in weakened privacy and cybersecurity protections.
Californians weigh in
Meanwhile, Democrats and Republicans from California banded together to vote against several of the bills Wednesday.
Khanna, whose district includes the headquarters of Apple and Google and has been a leader on tech issues in the House, said he believes the bills are “poorly drafted … by people who I think don’t understand technology.” The legislation is based on recommendations from the committee’s 18-month investigation of the digital marketplace, which solicited input from a broad range of antitrust scholars, nonprofit groups, federal enforcement agencies, less dominant tech companies and other key players.
“The question for the committee is: Is the goal theatrics or do they want to have substantive enforceable antitrust legislation?” Khanna, who is not on the Judiciary Committee, told POLITICO by phone. “If it’s the latter, I’m happy to work on that.”
Khanna said he plans to ask Pelosi to come together with “thoughtful” members of the House Judiciary Committee, as well as Senate antitrust hawk Amy Klobuchar (D-Minn.), to hash out “well-crafted” antitrust legislation.
“The speaker really understands, and has always understood, technology and understands the issue with great depth,” Khanna said. “I have confidence in her judgment of getting the right people.”
Pelosi’s office did not offer comment when asked about the concerns voiced by members of the California delegation.
Fight for ‘our economic future’
The antitrust package, which among other provisions would prohibit Apple, Amazon, Facebook, Google and possibly Microsoft from discriminating against competitors and would limit their ability to buy up potential rivals, has created divisions on both sides of the aisle since the committee introduced it this month.
Antitrust subcommittee Chair Rep. David Cicilline (D-R.I.) said Congress must curb the tech giants’ power — for the sake of American capitalism.
The antitrust legislation “is fundamentally about whether or not we have an economy where businesses fighting for economic survival can actually succeed,” Cicilline said. “It is about whether our economic future is going to be defined by the success of the best businesses with the best ideas, or simply the biggest companies with the biggest lobbying budgets.”
But an increasing number of moderate Democrats, including several of the committee’s members from California, have expressed concerns that the legislation goes too far.
Meanwhile, the bills are exposing a schism within the GOP.
Rep. Ken Buck (R-Colo.), the ranking member of the House Judiciary antitrust subcommittee, is a co-sponsor of all of the bills on Wednesday’s agenda — but he’s facing loud opposition from Jordan, the committee’s top Republican. Jordan is expected to propose a series of amendments to the legislation, which he has derided as Democrat-led measures that would give the Biden administration too much power.
Jordan said the bills don’t address Republicans’ main concerns with the tech companies: Online platforms’ alleged bias against conservatives.
“Big Tech censors conservatives — these bills don’t fix that problem, they make it worse,” Jordan said in his opening statement. “They don’t break up Big Tech, they don’t stop censorship.”
Jordan also wrote a Fox News op-ed on Tuesday with Mark Meadows, a former chief of staff to Trump, lambasting the bills.
Debate over one of the package’s least controversial bills, a measure that would increase merger filing fees, dragged on for nearly three hours amid Republican complaints that the legislation did nothing to limit how the DOJ and FTC spend the new funds.
The panel eventually voted 29-12 to advance that measure, with five GOP lawmakers signing on: Buck; Gaetz; Burgess Owens of Utah; Chip Roy of Texas; and Victoria Spartz of Indiana.
Another less controversial measure, which would bar companies from seeking to relocate antitrust suits brought by state attorneys general, also generated a fair share of debate and opposition from California lawmakers, including Lofgren and Issa. The bill, backed by the attorneys general of 52 U.S. states and territories, is a response to Google’s attempts to move a lawsuit out of federal courts in Texas.
What about Microsoft?
The Microsoft debate provided some of the markup’s most notable fireworks.
Rep. Thomas Massie (R-Ky.) waved a document that he called evidence from a whistleblower showing that Microsoft had received an advance copy of the legislation before it was introduced June 11.
Massie’s document appeared to be the same draft of a bill that POLITICO had published in full for its subscribers on June 9, except with a watermark that read “Confidential — Microsoft” on each page. That version would have focused tougher antitrust scrutiny on any company that had both a $600 billion market value and 500,000 U.S. users, which would have expanded the number of companies affected by the legislation.
Cicilline has said he does not know how specifically the legislation would affect Microsoft, but denied Wednesday that the bills’ final language offer any favoritism to the company.
Cicilline said the bills apply to companies that meet a specific set of criteria: They must have a market capitalization of $600 billion or more, have 50 million U.S. users or serve 100,000 business users, and offer a platform that acts as a “critical trading partner.” (Only a handful of companies in the world would meet all those benchmarks.) He said the FTC and DOJ will be tasked with determining whether Microsoft, which has a market cap of $2 trillion and products used by millions of consumers and businesses, meets that definition.
“No company is exempted. Period,” he said.