Antitrust Report 'Just the Beginning': Proposed Tech Reforms Now Face Uphill Battle in Congress

Following the release of the House antitrust subcommittee’s blockbuster 450-page report calling for robust antitrust law reforms to take on Big Tech’s dominance, lawmakers and stakeholders across the aisle are painting an optimistic-yet-fuzzy picture for how and when the legislative proposals laid out could take shape.

In interviews following the release of the report, congressional aides and antitrust experts with past experience on Capitol Hill and in the Obama administration’s Treasury Department and White House pointed to myriad factors that could change the prospects for legislative reforms, such as the outcome of the November presidential elections; bipartisan support for some suggested reforms; and the makeup of congressional priorities heading into a new session next year as the pandemic continues.

Counsel for the antitrust subcommittee told reporters that the report is “just the beginning of the process,” adding that the investigation’s staff sees its work as a blueprint for antitrust reform moving forward and a floor for any future legislative discussions.

“Obviously, we want these recommendations to be put into legislative form and embraced and pushed for, and we will see how far we can get in the next year given how radically quickly a lot of this has moved forward,” said Sarah Miller, executive director of the American Economic Liberties Project and a former Treasury policy adviser in the Obama administration. 

The House’s antitrust report is the culmination of a 16-month investigation into competition in the digital marketplace, with a specific focus on four of the largest technology companies: Alphabet Inc., Apple Inc., Amazon.com Inc. and Facebook Inc. And while the report is far-reaching, it also includes a number of legislative proposals that could inspire Congress’ next steps on reining in Big Tech.

Proposals include barring companies from selling their own branded products on a marketplace they own, such as the case for Amazon’s e-commerce business; passing non-discrimination laws so companies like Google can’t give preference to their own sites in searches; and making it tougher for large companies to acquire startups seen as their competitors. The report also calls for beefing up the Federal Trade Commission and Justice Department’s toolkit so regulators are better equipped to take on the industry, while also criticizing the agencies for failing to enforce existing antitrust laws in recent years.

Each proposal comes with its own set of legislative and political hurdles, including Congress’ ability to prioritize such reforms. During a panel Wednesday hosted by Reuters, antitrust subcommittee member Rep. Pramila Jayapal (D-Wash.) said that while tackling the coronavirus pandemic will undoubtedly be priority No. 1 next year, the bipartisan support for tackling some of the issues surrounding antitrust reform could make it much easier for lawmakers to still get something passed sooner rather than later.

“We do have to be precise about what we want to do; the devil is always in the detail with legislation,” Jayapal said. “So I’m really looking forward to working with my Republican colleagues, and I do think it will be a priority for legislation in the next Congress.”

Tech regulation remains a lower congressional priority for Americans compared to other issues, although a majority of voters support it. According to a Morning Consult/Politico survey conducted Oct. 2-4 among 1,990 registered voters, 58 percent of Democrats and 54 percent of Republicans said Congress should make regulating tech companies either a top or “important, but lower” priority. That’s roughly 35 percentage points lower than the top priorities of controlling the spread of the coronavirus pandemic in the United States and stimulating the economy.

But Miller said the overlap between the House subcommittee report and a submission for the minority from Rep. Ken Buck (R-Colo.) signals that certain legislative proposals, such as providing additional resources to regulators at the Federal Trade Commission and Justice Department, could be much easier to get through next session than others, like legislation barring companies from owning and selling on their own marketplaces.

Finding bipartisanship in the House isn’t the subcommittee’s only hurdle: It will also need to get the Senate on board. Alex Petros, policy counsel focused on digital competition at the advocacy group Public Knowledge, said House lawmakers could have an easier time getting senators’ support given that many of the legislative proposals have already been introduced in the Senate with bipartisan co-sponsors, such as Sens. Mark Warner (D-Va.), Josh Hawley (R-Mo.) and Richard Blumenthal (D-Conn.) introducing the ACCESS Act (S. 2658) last year.

“A lot of the problem here is that these are just really complex markets, and they don’t lend themselves well to a cursory understanding and you’ve seen Congress over time get better at that,” said Petros, a former congressional aide for Democratic antitrust hawks Blumenthal and Sen. Amy Klobuchar of Minnesota.

However, Dipayan Ghosh, co-director of the Digital Platforms and Democracy Project at the Shorenstein Center on Media, Politics and Public Policy at the Harvard Kennedy School, said the industry will continue to be savvy in its attempts to influence any future legislation that will require them to change their operations. 

Carl Szabo, vice president and general counsel of the industry trade group NetChoice, said his association plans to continue to educate lawmakers about the impracticalities of these proposals and how structural changes to these business models could harm consumers. Once lawmakers across party lines start to dig into the ramifications of such reforms, they’ll start to back away, he said.

But Ghosh anticipates that at some point, the tech industry’s sway in these legislative issues will start to dim.

“This industry is very smart in figuring out how to work with Congress, but at a certain time, it's hard when a very basic truth is looking the public in the face,” Ghosh said. “So at a given time, they might not be able to do anything about it.”