Senate Panel To Consider Klobuchar Antitrust Bills That Imploded Last Congress

On March 7, the Senate Subcommittee on Competition Policy, Antitrust, and Consumer Rights will hold a hearing that examining “reining in dominant digital platforms, focusing on restoring competition to our digital markets.” 

Some lawmakers will likely use the hearing as an opportunity to boost momentum for a package of antitrust mega-regulation bills that failed to pass the 117th Congress despite unified Democrat control. Despite the fresh coat of paint, conservatives should still reject these bills. 

Three bills received the spotlight last Congress – the American Innovation and Choice Online Act (AICOA), the Open App Markets Act (OAMA) and the Journalism Competition and Protection Act (JCPA). All bills were rejected for similar reasons.  

AICOA outlaws a litany of ordinary business practices for businesses over a government-determined size. The most notable business practice AICOA targets is so-called “self-preferencing,” where platforms promote their own product or service next to a competing offering. Grocery stores do this all the time when they offer Frosted Flakes on the shelf next to their own generic brand. In an inflationary era where household budgets are being stretched to their breaking points, the last thing Congress needs to do is restrict access to generic products that are often cheaper than name brands. 

OAMA would prohibit companies that own app stores over a government-determined size from requiring app developers to use an in-app payment system owned by that company as a condition of entry into the app store. Like AICOA, the bill bans app stores from “unreasonably” preferencing its own apps over those of competitors without defining what “unreasonable” means. Adding insult to injury, OAMA contains an expansive private right of action, which would allow trial lawyers to make a killing launching frivolous lawsuits against app store operators.

Both AICOA and OAMA contain a fundamental flaw – their terms only apply to companies above a government-set threshold determined by a company’s market cap and total monthly users. Setting this precedent is a clear cap on innovation, as companies won’t want to grow above this size for fear of getting whacked with new regulations. 

JCPA creates an antitrust exemption to allow print, broadcast, or digital news companies to form a legal cartel in negotiations with online platforms that host their content. This media cartel would then negotiate the terms in which digital platforms are allowed to distribute content. If passed, this would allow liberal legacy media outlets to box conservative and independent outlets out of the cartels.

Progressive lawmakers have attempted to use conservative anger at Big Tech censorship to trick Republicans into supporting these bills. If anything, these bills would worsen censorship by putting companies in a “mother-may-I” relationship with Biden bureaucrats. If a company has to run to Washington and ask for permission to conduct basic business, Biden bureaucrats have clearly demonstrated a willingness to use their bully pulpit to take down content they find objectionable. Just look at the Twitter Files. 

Presumably stewing over his inability to goad Congress into passing these bills, President Biden has launched a campaign to resurrect this package. 

Biden penned an op-ed in the Wall Street Journal advocating for Congress to pass new bills targeting “Big Tech” companies. He also called for new antitrust legislation in his State of the Union Address, one of the first times that a president has called for such reform during this speech in years.  

Nothing in Tuesday’s hearing will alter the fundamentally flawed nature of each of these bills. Despite progressive insistence that these bills are the appropriate avenue for “taking on Big Tech,” conservatives should not take the bait.