There’s a growing and concerning bipartisan consensus in Congress that a few technology platforms have grown too big and that Congress needs to tighten the reins on innovation.
Yesterday, the House Antitrust Subcommittee of the Judiciary Committee convened a hearing to delve into solutions to address anticompetitive behavior by large technology companies (Big Tech).
The chairman of the subcommittee, Rep. David Cicilline (D-R.I.) told progressives last month, “It’s clear that some of these dominant platforms must be broken up. All of them must be regulated.” This hearing was a probe not of whether to break up Big Tech, but how to do so.
Takeaways from the hearing
Unlike a hearing held this summer featuring the heads of Facebook, Apple, Google, and Amazon, yesterday’s hearing featured academics, think tank scholars, and former antitrust regulators who focused on specific reforms that Congress should pursue.
Nearly all of the panelists argued that Big Tech is squasing competition in different ways including by selling products on their platforms that compete with smaller retailers or mergers. They posed areas for Congress to increase regulations and enforcement powers of federal agencies.
We learned that Congress wants to decide whether Big Tech is violating antitrust laws rather than the courts. Congress may also move away from the principle that antitrust law should focus on consumer welfare.
There was some pushback to the antitrust train from professors Christopher Yoo of the University of Pennsylvania Law School and Tad Lipsky of the Antonin Scalia Law School. They argued that antitrust statutes and enforcement institutions are capable of adequately handling competition problems that may be emerging in the digital economy and highlighted ways that proposals may be ineffective and lead to unintended consequences.
Relevance of this hearing
This hearing did not occur in a vacuum.
The House Antitrust Subcommittee is expected to release a report on findings from its 15-month investigation of Google, Apple, Amazon, and Facebook any day. The committee reportedly collected more than one million documents from the companies and their competitors.
This hearing also follows a July grilling of CEOs from the big four tech companies investigated by this committee.
Given that we are in the final months of this session of Congress, there’s not much likelihood for new legislation to get passed before a new Congress is sworn in. However, this committee could tee up legislation for the next Congress to pursue. Depending on which party controls both Houses will determine whether proposals become legislation.
Big is not bad and it’s not a justification for potential harm
Much of the support for breaking up Big Tech rests on their size as an indicator of anticompetitive behavior rather than market power. In other words, they’re big because they did something bad. Size and market power are not the same thing, as AEI scholar Mark Jamison explained recently. With little evidence of actual harm, but isolated cases here and there or anecdotes, Congress wants to make sweeping changes to antitrust law that could have massive negative consequences.
Americans who appreciate the immense value that Big Tech has added to their lives should be very concerned. Breaking up or reigning in Big Tech may lead to less innovation. The coronavirus pandemic has demonstrated just how valuable Big Tech has been in allowing businesses to stay open; consumers to get the daily goods they rely on; and for people to communicate with family, friends, coworkers, and healthcare providers.
There are legitimate concerns from conservatives that Big Tech platforms are working to silence their voices. Is antitrust law the right tool for enforcement? That’s a question to be answered.
Overall, technology has developed with a light regulatory touch and there are still compelling reasons to maintain that approach.