We live in an era of unprecedented political polarization, to the point where it seems unimaginable that liberals and conservatives could unite around any issue. Yet as a House Judiciary Committee hearing last Thursday illustrated, there are many conservatives who join liberals in arguing that we should strengthen antitrust laws against Big Tech companies like Google, Facebook, Twitter and Amazon — although they sometimes have very different reasons for wanting to do so.
The House Judiciary Committee hearing was chaired by Rep. David Cicilline, D-R.I., who is in charge of the Subcommittee on Antitrust, Commercial and Administrative Law. The hearing, dubbed "Proposals to Strengthen the Antitrust Laws and Restore Competition Online," was a rare display of bipartisanship even though the two sides on some occasions still talked past each other. The hearing was also unusual because antitrust action is rare nowadays, a testament perhaps to how big business has essentially captured government.
In general, the Democrats and Republicans seemed united in their desire to rein in big technology companies. Cicilline declared at one point that "these once-scrappy, underdog startups have grown into the kinds of monopolies we last saw more than a century ago."
Gus Hurwitz, an associate professor of law at the University of Nebraska – Lincoln, told Salon that this narrative of "little guy" companies growing dangerous big is consistent with perceptions of technology corporations since the late 20th century. In the 1990s they were viewed as bringing about a potential utopia — the logic, as he described it to Salon, was "Hey, this is going to be a incredibly important platform that's going to bring the world together and create a new global entity that is independent from any nation." Now they are perceived with suspicion because of concerns that normally would not have fallen under the purview of antitrust legislation. These include the belief that Big Tech companies violate users' privacy and, on the right, the accusation that companies discriminate against conservative voices.
This point was reflected in comments made by Judiciary Committee Chair Rep. Jerrold Nadler of New York, who told the hearing that the movement for using antitrust laws against Big Tech has been a "historic and bipartisan process" in which "nearly a dozen bipartisan bills by the antitrust subcommittee have all been passed with unanimous support." He urged his colleagues to "take a moment to reflect" on how "the subcommittee has taken a number of concrete steps forward in support of its critical mission to promote open and fair markets for the American people, with an appropriate focus on consumers and workers as well as small and medium-sized businesses who are struggling to stay afloat."
Zephyr Teachout, associate professor of law at Fordham University School of Law, explained during her testimony at the hearing that "antitrust laws, and strong antitrust laws, are essential for freedom and for a thriving economy. The highly concentrated Big Tech marketplaces and the existing abuses of Big Tech enabled by their dominant positions poses a major democratic threat." While her sentiment was met with broad agreement, Teachout had a more pessimistic outlook on whether change will be made. She argued that the Supreme Court has engaged in judicial overreach by holding antitrust cases to an unreasonably high standard and urged Congress to take the initiative from the Supreme Court by acting on the fact that "significant new legislation is required, as your investigation revealed."
Another antitrust expert, one who spoke to Salon, shared Teachout's analysis about the difficulty of getting the American court system to enforce antitrust laws.
"If you go into court and you say, 'We ought to break up this company because it has a 100% market share,' but you can't show that they did anything reprehensible to gain that market share, then you're going to lose," Alexander "Sasha" Volokh, an associate professor of law at Emory University, explained to Salon. "If a company grows to a hundred percent through its own merits, there are certain things that are absolutely condemned, like competitors making agreements on what prices to charge or what quantities to produce, that has always been and continues to be absolutely condemned by the antitrust laws." Other practices, too, like "exclusive dealing contracts," were once strongly condemned but no longer are, Volokh said.
One of the Republicans at the subcommittee hearing, Rep. Ken Buck of Colorado, seemed to agree with these sentiments when he argued that "we also need to seriously consider increasing scrutiny on big tech companies, including shifting the burden of proof required for a market dominant company to prove that a merger is not anti-competitive."
There were also experts like William Baer, Visiting Fellow of Governance Studies at the Brookings Institution, who has worked on antitrust enforcement for four different presidents. As he told Congress in his testimony on Thursday, "That experience teaches me that in many cases our antitrust laws have been successful and forces for good, but too often antitrust jurisprudence has fallen short and failed to protect consumers and competition as much as it can and as it should."
As Hurwitz pointed out, many of the biggest antitrust cases over the past few decades have involved large tech corporations, with some of them turning out successfully so long as the government had overwhelming evidence of violations.
"Technology has always been at the forefront of big antitrust cases, and big in antitrust history," Hurwitz told Salon, ticking off examples including "the Microsoft case in the 1990s, IBM in mid-century and the AT&T breakup in the 1980s, but the 20th century was just the history of AT&T regulation."
Hurwitz added that the early 21st century has exacerbated concerns about Big Tech because "the internet and technology affects all of us. It is day to day in our lives, our work, our social existence, our friendships, our communications, our news, our media. Everything gets to us intermediated over the internet by these big tech companies using the big tech platforms. So it's a lot more tangible and palpable for everyone."
This does not mean that it will be easy for Congress to break up Big Tech companies, at least not without changing current laws so that the courts will be unable to overturn their actions.
Herbert Hovenkamp, a professor at the University of Pennsylvania Carey Law School who has written extensively about antitrust laws, told Salon that the case against companies like Google and Amazon is quite challenging. While they "might be doing a lot of bad things, they're generally not charging high prices. In fact, Google's most common consumer price is zero. Email is zero, Gmail and it's operating system for cell phones, Android, is free. The same thing is true of the browser and search engine, they're all free to users." He made the same point about Amazon, "which also has a reputation for having low prices, maybe not always the lowest price, but you don't see in consumer complaints about Amazon that they charge high prices for things, and the way they've managed their business to grow so incredibly is by low prices."
At this point, we must turn to the other aspect of the modern antitrust movement against Big Tech firms, one that most scholars agree would not usually be considered under the purview of antitrust law.
The sentiment was best summed up by Rep. Jim Jordan, R-Ohio, a Ranking Member who helped preside over the hearing held by the Subcommittee on Antitrust, Commercial, and Administrative Law. Rep. Jordan proclaimed that "big tech is out to get conservatives. That's not a suspicion. That's not a hunch. It's a fact. I said that two months ago at our last hearing. It's every bit as true today."
Jordan's words were echoed by one of the expert witnesses, Rachel Bovard of the Conservative Partnership Institute, who argued that the problem is not with existing antitrust laws but with how Big Tech companies supposedly censor free speech.
"Single algorithmic decisions made by individuals in a private corporation accountable to no one changes what kind of viewpoints and information are available to billions of people around the world," Bovard said at the hearing.
Hovenkamp told Salon that conservatives' complaints of ideological bias are "not an antitrust issue" just as "the left's concern has been with bigness, but bigness per se has never been an antitrust problem either. We permit firms to get very big as long as they don't charge consumers high prices."
As Salon has previously covered, President Donald Trump has used measures like Section 230 of the 1996 Communications Decency Act, which protects online platforms from being liable for the content posted by their users, to try to retaliate against social media platforms that he claims are hostile to him. In May he signed an executive order instructing the Federal Communications Commission to craft a new regulation that could exempt social media platforms from Section 230 protections, which he did after Twitter fact-checked inaccurate tweets that the president posted to his account.
"The threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment," Harvard Law professor Laurence Tribe told Salon by email at the time. "That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."