GOP Lawmakers Have Their Own Agenda for Antitrust Hearings

When four of the most prominent executives in American business testify before Congress Wednesday, the topic will ostensibly be whether they’ve used their market power to squelch competition. The Republican congressmen participating in the hearing are eager to talk about another issue: the tech industry’s supposed bias against conservatives.

A confidential memo from Republican leadership preparing lawmakers for the hearing labels bias as the top concern, while conceding it is not an issue that can be solved through antitrust enforcement. "Political bias in Big Tech is a problem that must be highlighted and examined so that consumers are aware, the market can respond, and lawmakers can evaluate options," says the memo, which was obtained by Bloomberg. The document casts the effort to change antitrust law as a Democratic push to undermine the legal regime that has been critical to the development of a thriving American economy. It argues that lawmakers should trust the executive branch to bring appropriate legal action based on existing antitrust laws. 

Political favoritism in tech has long been a Republican stalking horse. It flared up again this week when Facebook Inc., Alphabet Inc.’s Google and Twitter Inc. all removed a video advocating the use of hydroxychloroquine as a treatment for Covid-19. Twitter also put temporary limitations on Donald Trump Jr.’s account after he promoted the video, prompting a round of recriminations from the political right.

It seems inevitable that this incident, or at least the broader complaints about bias, will come up Wednesday. Last week Ohio Representative Jim Jordan, the highest-ranking Republican on the House Judiciary committee, made a futile last-ditch effort to summon Twitter CEO Jack Dorsey to the hearing, even though the $29 billion-company does not hold a dominant position over any market. On Monday Florida Representative Matt Gaetz, also a member on the antitrust subcommittee, which is holding the hearing, sent the United States attorney general a criminal referral for Facebook CEO Mark Zuckerberg, accusing him of lying to Congress about conservative bias in past testimony.  

Lawmakers have said repeatedly that concern over the power of the tech industry is bipartisan, but differences between the parties have been evident for months. Several Republicans sent an open letter in February accusing Jerrold Nadler, the chair of the House Judiciary Committee, of having prejudged the outcome of the antitrust investigation being conducted by the antirust subcommittee. They threatened to stop participating if the conclusion had already been reached that large tech companies should be broken up.

The partisan tension will carry into the hearing, according to Matt Stoller, director of research at the American Economic Liberties Project, which has advocated breaking up big technology companies. “I think Jim Jordan at least is going to be disruptive,” said Stoller. “He's very hostile to using antitrust for any reason and the way they're covering for that is they're just going to use the conservative bias frame.”

Other Republican members of the committee could prove more willing to stick to the proscribed topic. Wisconsin Representative Jim Sensenbrenner Jr., the ranking  Republican member of the committee, has prepared questions that focus on antitrust issues, according to a Republican staffer. Sensenbrenner, who is retiring at the end of the year, had a phone call with Apple CEO Tim Cook ahead of the hearing, according to the staffer. Colorado Republican Representative Ken Buck, another member of the antitrust subcommittee, has said he’ll focus on anticompetitive behavior and privacy, but also bias.

Barak Orbach, an antitrust scholar at the University of Arizona, said that Republicans are responding to their constituents’ anger towards the leaders of Silicon Valley. “Vocal attacks on these elites excite and energize these voters. Gaetz and Jordan do just that. They are impulsive politicians, not policy wonks,” he said.

The prospect of a freeform airing of grievances is one reason tech executives have resisted public hearings like this. Members of Congress don’t often get to question top executives in public. “You don't normally get four CEOs representing 4 trillion dollars sitting before a subcommittee,” said Jesse Blumenthal, a conservative who leads tech policy at Stand Together, part of the political network affiliated with libertarian billionaire Charles Koch. “I think members of Congress will use their time to address a wide variety of concerns.”

Apple’s Cook will likely be called upon to explain why his company wouldn’t cooperate with an FBI request to unlock a suspect’s phone. Inc. CEO Jeff Bezos could face questions about the Washington Post, which he owns. China is also one of the Republican priorities on tech, and Facebook is expected to play to their concerns by arguing that China will be the main beneficiary of any government interference.

For their part, Democrats have framed issues like conservative bias as a sideshow. There’s significant potential for their questioning to wander as well. Democratic Representative David Cicilline, who has been leading the effort, has yet to detail fully the conclusions his investigation is reaching. The antitrust cases against Alphabet, Apple, Amazon and Facebook could all raise very different issues.

Blumenthal said it was Cicilline and the Democrats who have used the antitrust investigation to score political points. He pointed to Republican Senator Mike Lee’s arrangement of an antitrust hearing focused specifically on Google’s position in the advertising market. “Senator Lee is conducting a legitimate role of Congress and doing oversight over enforcement agencies, as opposed to Congressman Cicilline’s approach, which is a combination of show boating and attempting to re-write the rules of the game,” Blumenthal said.

©2020 Bloomberg L.P.

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