A growing bipartisan consensus on the need to strengthen the U.S. antitrust regime was on display during a Senate Judiciary subcommittee hearing Thursday, where expert witnesses discussed the wisdom of proposals from both parties to promote greater competition in the technology industry and the American economy as a whole.
“American prosperity was of course built on a foundation of open markets and fair competition,” said Sen. Amy Klobuchar, the Minnesota Democrat and chairwoman of the committee’s antitrust panel. “But if you look at our markets today, we see cracks in that free market foundation. We see more and more consolidation — in so many areas markets aren’t as competitive as they once were.”
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Klobuchar recently introduced legislation that would increase funding for antitrust enforcers, require courts to broaden the kinds of evidence used to prove violations of competition laws, and direct enforcers to go after “monopsony” power, when a firm becomes an overly dominant employer or purchaser of goods and services in a particular market. Monopsonies are the inverse of monopolies, which are firms that are overly dominant sellers of goods and services.
Though Republicans on the committee did not appear eager to endorse all of Klobuchar’s proposals, they recognized that there is need for reform. “I agree that we do have a competition policy problem,” said Republican Sen. Mike Lee of Utah, though he disagreed that a “sweeping transformation of our antitrust laws” was necessary. Instead, what was needed was “agency leaders with the resources and the will to vigorously enforce the laws we have.”
Indeed, even witnesses who argued against the merits of Klobuchar’s legislation supported the idea of increasing funding for antitrust enforcers. Jan Rybnicek, an antitrust lawyer at Freshfields Bruckhaus Deringer argued that “the American economy is competitive and innovative and the envy of the world,” and that there isn’t substantial evidence of widespread anticompetitive behavior that would be necessary to justify a wholesale overhaul of competition laws. Still, he said that it would be wise to increase antitrust agency resources.
In 2019, Klobuchar along with Republican Iowa Sen. Chuck Grassley, introduced legislation that would greatly increase funding for the Department of Justice’s Antitrust Division and the Federal Trade Commission, and Thursday’s hearing suggested there would be widespread support in Congress for at least a narrow bill such as that.
Other Republicans, however, appeared just as eager as some Democrats on the committee to pass sweeping legislation. “We’re seeing unprecedented consolidation, consolidation we haven’t seen in a century since the Gilded Age,” said GOP Sen. Josh Hawley of Missouri. He suggested passing a law that would ban dominant platforms in the technology industry and elsewhere from engaging in any kind of merger whatsoever. “Why should Google and Facebook be able to buy anything given their dominant size at this point?” he asked
Tennessee Sen. Marsha Blackburn, a Republican, also raised the issue of Google and Facebook’s dominant position in the online advertising industry and how it has impacted the news media business. “Everyone is concerned about Google and Facebook and their control over the news,” she said, arguing that this control has directly led to a reduction in the number of working news reporters, especially in local markets across the country.
“Every one of these newsrooms have experienced the loss of reporters, which is a loss of journalism, which is the loss of the insight of the people in the issues,” Blackburn said.
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A separate piece of legislation aimed at curbing the social media giants’ control over the news ecosystem was introduced on a bipartisan basis in both the House and the Senate on Wednesday. The bill would exempt news organizations from certain antitrust provisions, allowing them to collectively bargain with big technology firms over distribution disputes.
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“Although the bill is in the early stages and will face intense opposition from big tech, there’s a chance Democrats can get 60 votes in the Senate for it to be signed into law,” wrote analysts at Beacon Policy Advisors in a Thursday note to clients. “This is especially true as many lawmakers are beginning to feel pressure from their constituents to take action on the crisis facing local news outlets.”