Big Tech Is Winning the Antitrust War on Capitol Hill

Over the course of last year, as Big Tech companies such as Google, Amazon, and Meta plotted to further their already considerable reach, lawmakers in Washington plotted how to stop them. Critically, the effort was seen to be a bipartisan one: Democrat David Cicilline and Republican Ken Buck were both sitting atop the House Judiciary Committee’s antitrust subcommittee, working off the same page. With Democrats in control of both houses and the Biden administration doing its part to crack down on monopolies—alongside some significant antitrust lawsuits wending their way through the courts—twenty-first-century trustbusters appeared to have a winning hand.

Lawmakers delivered the goods in the form of the American Innovation and Choice Online Act, or AICO, and the Open App Markets Act, or OAMA. The bills targeted some of the more infamous examples of Big Tech’s wretched excess. AICO was designed to prevent tech companies from prioritizing their own products over their competitors’: For example, Amazon would not be able to promote its own brand of products over other competing brands on its platform. Meanwhile, OAMA would have reined in Google and Apple, who enjoy hammer-lock control over the most popular app stores. There was a frenzied push during the lame-duck period to get the bills over the line—and equally frenzied pushback from Big Tech lobbyists on the Hill.

Team Antitrust lost. And three months later, all of the fruits that might have ripened under a bipartisan effort to meaningfully rein in the power of Big Tech and social media corporations may now be left to wither on the vine.

The first blow came when AICO and OAMA were left out of the massive year-end spending bill known as the omnibus. As Bloomberg reported, this failure was in large part due to intensive lobbying from Big Tech companies, which helped foster bipartisan opposition.

The second blow came when Republicans took control of the House. House Speaker Kevin McCarthy had opposed both AICO and OAMA, and one of his close friends and confidants in Washington, Jeff Miller, is a prominent corporate lobbyist who has represented Amazon and Apple. Miller lobbied Republicans against both bills, The New York Times reported.

Meanwhile, antitrust advocates are watching the break-up of the bipartisan trustbuster duo who sat atop the antitrust subcommittee. In January, the House Judiciary Committee—now led by Representative Jim Jordan, who opposed legislation that would raise filing fees for large mergers on the grounds that it would give “more money” to the Biden administration to “target conservatives” on social media platforms—announced that Representative Thomas Massie would lead the antitrust subcommittee.

The move was seen as a snub of Ken Buck, the subcommittee’s ranking member in the last Congress, who is one of the biggest critics of Big Tech in the Republican conference. (Buck had also pushed back against Jordan’s claims about antitrust legislation.) While Buck is the co-chair of the Congressional Antitrust Caucus and a co-sponsor of legislation to reduce these firms’ monopoly power, Massie has a fierce libertarian streak and is wary of government intervention to break up monopolies.

It goes without saying that Massie’s approach differs greatly from that of Cicilline, the former chair who introduced AICO in the House (and who is leaving Congress in May to become the CEO of the Rhode Island Foundation). Cicilline’s impending departure, along with Massie’s elevation over Buck, could be a blow to addressing antitrust issues in the House, and particularly to the future of AICO and OAMA.

“It tells you what the Republican leadership of the House actually thinks about these things,” said Barry Lynn, the executive director of the Open Markets Institute, a left-leaning organization opposed to monopolies and corporate consolidation. “They’re in the pocket of Big Tech; they’re in the pocket of big corporations.”

In a brief interview outside the House chamber earlier this month, Massie told me that his way of tackling antitrust issues “would not be in the direction that Lina Khan wants to take it,” referring to the current chair of the Federal Trade Commission. Under Khan’s leadership, the FTC has taken a muscular approach to handling corporate monopolies, taking on Big Tech companies like Meta, Amazon, and Microsoft. Congressional Republicans are pushing back: Jordan sent a letter to the FTC with Senator Ted Cruz requesting information about the agency’s investigation of Twitter after it was purchased by Elon Musk.

“I contend that the only way monopolies can thrive is with government intervention, because in a truly free market, the incumbents get big and top heavy and somebody challenges them,” Massie said. “So I look forward to having some hearings on monopolies and look at other ways to solve the issue where consumers are suffering because the government has done something that has enabled this monopoly to thrive.”

“The reason they had that bipartisan opposition is that they, in my opinion, are seen as retroactively punitive, be it to Google or Apple or whoever. I think that’s an interesting discussion that we can have, whether it’s justified, but it’s definitely a big shift away from long-standing antitrust tradition and case law,” said Luke Hogg, the director of outreach at the Lincoln Network, a right-leaning think tank that advocates for free markets. “So for someone like Thomas Massie, I see him being less willing to kind of re-shift and reframe antitrust.”

But Lynn argued that antitrust advocates should not be pessimistic about the future. Hearings led by Cicilline in recent years “were of enormous importance,” Lynn contended, resulting in a comprehensive report and producing details on Big Tech practices that then helped inform lawsuits against Google and Meta. (Republicans, then in the minority, circulated their own report, as did Buck.) Lynn also pointed to the Justice Department successfully blocking a recent merger of publishing companies.

“If you actually put all your hopes, all your dreams, on a piece of legislation, you’re probably going to have your heart broken,” Lynn said, highlighting the work that Khan and the Biden administration is doing without Congress. “[AICO] would have sped some stuff up; it would have made certain activities easier to deal with, but you know what? We’ve got every goddamn law on the books already that we need.”

Meanwhile, antitrust advocates in the House are still publicly optimistic that these issues can be addressed on a bipartisan basis in the new Congress. Representative Joe Neguse, the lead sponsor of the bill raising filing fees on large mergers, which passed in the House last year, told me that he was “hopeful that we can build on that success.”

“There are a number of members on both sides of the aisle who are very interested in these issues, so I’m hopeful that we’ll be able to take a similar approach to the approach that we took in the last Congress. But time will tell,” Neguse said.

In a recent interview with The Washington Post, the soon-to-depart Cicilline suggested that one of the harder lessons learned in the antitrust trenches was that he didn’t see the robustness of Big Tech’s pushback against their efforts coming. “I think maybe we didn’t fully appreciate just how much they would invest in stopping reforms. If I were to do it all over again, I would spend more time trying to make sure people understood what was at stake in this legislation,” he said. Nevertheless, he expressed a similar optimism about the bipartisan effort to bring these firms to heel: “I don’t have any doubt that the serious commitment of my colleagues is real. The support is going to continue to grow. It’s inevitable that Congress will do its job and pass legislation to restore competition.”

When I asked Buck where he saw potential areas of bipartisan cooperation in the new Congress, he pointed to a bill that would force Google to break up its digital advertising business. Buck said that he believed the bill, which was introduced with bipartisan support in the Senate and the House last year, “has the most appeal at this point.”

The White House may appreciate it if Congress takes up antitrust issues on its own, as the executive branch is currently doing the legwork in challenging Big Tech companies. Without naming the legislation specifically, President Joe Biden urged Congress to pass AICO in a January op-ed in The Wall Street Journal. “The next generation of great American companies shouldn’t be smothered by the dominant incumbents before they have a chance to get off the ground,” Biden wrote.

The president also asked Congress to take on Big Tech companies in his State of the Union address in February, calling on lawmakers to “pass bipartisan legislation to strengthen antitrust enforcement and prevent big online platforms from giving their own products an unfair advantage.” (Biden’s remarks marked the first time a president used the word “antitrust” in a State of the Union speech since 1979.)

But if the downfall of AICO last year proves anything, it’s that opposition to tech-related antitrust bills could be just as varied as support. “The weird thing about tech policy specifically, and antitrust across the board, is that it really makes these strange bedfellows. So it’s hard to say what would get bipartisan support [now], because what we saw last year was a lot of these bills got bipartisan support, but they also had bipartisan opposition,” Hogg said.