I Missed This

Last week,

the House Juciciary Committee passed some rather expansive anti-monopoly billis, which is generally a good thing, as Matt Stoller notes:


And now to the good, bad, and meaning of the break-up votes. Here’s Jerry Nadler, the Chair of the Judiciary Committee.

The Good

The Judiciary Committee wrote and passed six different bills, two of them being general purpose antitrust acts and four being big tech-specific ones. These bills are an outgrowth of the 16-month investigation into Apple, Google, Amazon, and Facebook, with an analysis of millions of documents and hundreds of witnesses.

I would note the fact that only two of them being general is a bad thing.

Monopolies and ologopolies in insurance, banking, media, finance, pharmaceuticals, groceries, etc. need to be reined in as well.


So what do these bills do?

The first two are relatively simple. The first increases the amount of money that our antitrust enforcers can use to bring cases and regulate markets. (The FTC’s budget is $351 million, this would boost it to $418 million, while the Department of Justice Antitrust Division would go from $188 million to $252 million.) I wasn’t so keen on this one for a long time, because the Federal Trade Commission and the Antitrust Division are terrible and asking for more resources was an excuse for bad legal strategy. But with Lina Khan at the FTC, I’m more optimistic that she can restore the agency’s legitimacy. Or at least, now I know there’s someone there who recognizes the task at hand.

The second is a bill that is very procedural, but antitrust is a weedy area, and it matters. One of the techniques that monopolists use to avoid scrutiny is to move cases brought by state attorneys general to courts that are friendlier to big corporations. California, for instance, is well-known for tech-friendly judges – Google tried to move one key antitrust case on adtech to its home state. But big pharma does it too. In 2016, 40 state attorneys general filed suit in Connecticut against 18 pharmaceutical companies alleging price-fixing and market allocation of 15 generic drugs. The pharmaceutical companies, most of which were headquartered in the Philadelphia-area, successfully transferred the case to the Eastern District of Pennsylvania. It still hasn’t gone to trial. The second bill stops this nonsense, and lets state AGs keep the cases in the district they choose to bring suit. (Jurisdictional fights have always been a problem – in my book I profiled a 1937 suit over the monopolist Alcoa, in which the firm got the suit moved to its home town of Pittsburgh, and Congress in response nearly passed a law making it easier to remove judges.)

These two bills might not seem like a big deal. However, if these two bills were all that passed, they would still comprise the single most important strengthening of Federal antitrust law in a generation. For decades, antitrust was just not important, and the Judiciary Committee didn’t bother to focus on it. So to have these markups, and pass these bills, is in itself meaningful.

More money to enforcers and making it more difficult to judge shop (which should also apply to federal bankruptcy proceedings) are a good thing, but explicitly listing harms to competitors, and evaluating whether the behavior will lead to greater consolidation, a refutation of Robert Bork’s corrupt and hypocritical views on antitrust, are badly needed as well.

The other four bills solved for problems specific to Google, Apple, Amazon, and Facebook, problems ostensibly laid out in the big tech report by the subcommittee last year. Here are the four bills and what they did.

1) The ACCESS Act mandates that big tech firms have to make their systems open to competitors and business rivals, in the same way that AT&T customers can talk to T-Mobile customers, or users of different email systems can communicate with one another.

2) The merger bill makes it harder for big tech firms to buy rivals.

3) The nondiscrimination bill is intended to ban the ability to big tech firms to preference their own products, the way Google substitutes its own reviews for Yelp reviews, even if Yelp’s reviews are better.

4) The break-up bill is supposed to split apart big tech firms by prohibiting platforms from owning any line of business that uses that platform.

All four passed the committee, which is extraordinary and unexpected. And not only did they pass, but they passed with both Republicans and Democrats working on them.

These bills do not address a bigger question, which is that many agencies refuse to enforce the law, (Stoller gives the example of the FTC refusing to enforce the Robinson-Patman act, which led to an explosion of store mega-chains) and judges who have 50 years of precedent to defer to the word of the monopolists in court.

I think that the laws need to be completely rewritten to reject the past 50 years of jurisprudence, as well as placing the burden of proof on the accused monopolists.

It’s a good start though.

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