In his first State of the Union address since Republicans took a slim House majority, President Joe Biden called on Congress to take up an issue over which there’s growing bipartisan momentum but powerful obstacles that stand in the way: strengthening American antitrust law to crack down on Big Tech’s monopoly power.
“Pass the bipartisan legislation to strengthen antitrust enforcement and prevent big online platforms from giving their own products an unfair advantage,” Biden told lawmakers on Tuesday evening, referring to the American Innovation and Choice Online Act (AICOA). “Capitalism without competition is not capitalism,” he added. “It’s extortion. It’s exploitation.”
Biden’s renewed push comes after Senate Majority Leader Chuck Schumer last year effectively killed two bipartisan antitrust bills aimed at cracking down on platform monopolies. While saying he supported the measures and promising a vote on them for months, the New York Democrat never brought the package to the floor, even after the White House urged congressional leadership to send the bills to Biden’s desk during the lame duck session after the midterm elections.
Schumer insisted the bills didn’t have the votes needed to pass, contradicting the legislation’s chief architects, Sen. Amy Klobuchar, a Democrat from Minnesota, and Sen. Chuck Grassley, a Republican of Iowa. Grassley told TIME last fall that more than 20 Republicans were prepared to vote for the package.
The AICOA legislation would have prohibited dominant tech companies like Amazon and Google from preferencing their own products over competitors that have to use their platforms to reach customers. A smaller companion bill, the Open App Markets Act (OAMA), would have forced Apple and Google to open up their app stores to rival marketplaces. The two measures garnered strange bedfellows; they were supported by most Democrats in Congress—with the exception of the California delegation—and some of Capitol Hill’s most conservative Republicans, including Sen. Josh Hawley of Missouri and Rep. Ken Buck of Colorado. Both bills passed out of the House and Senate Judiciary committees by bipartisan margins. “It’s very clear that we have the votes to pass both those bills in the House and in the Senate,” Rep. David Cicilline, a Democrat from Rhode Island, who authored the House version, told TIME over the summer.
Read more: Schumer Kills Bills Big Tech Feared Most
Schumer, who as Senate majority leader controls what bills make it to the chamber’s floor, enraged anti-monopoly activists by stymying the legislation—many of whom had long feared that he was playing into Big Tech’s strategy of running out the clock.
Throughout much of last year, Big Tech lobbying firms waged a multi-million dollar advertising campaign to torpedo both bills, which some Hill sources suspect spooked some Democrats up for reelection in 2022. A Democratic Congressional aide familiar with the matter told TIME that Speaker Nancy Pelosi didn’t want to put her members through a difficult vote without the measures first passing the Senate, where the motion needed a 60-vote majority.
Yet moving forward on the bills now will be even more difficult with a divided government. House Speaker Kevin McCarthy, a California native, opposes renewed antitrust enforcement on the major tech firms. So, too, does Rep. Jim Jordan of Ohio, the new chair of the House Judiciary Committee who counts Google as one of his largest donors.
That ramps up the pressure on federal enforcement agencies to tackle monopolistic corporations and anti-competitive behavior over the next two years. It’s a reason why, as a consolation for never allowing a vote on the AICOA and OAMA bills, Schumer earmarked an extra $50 million to the Federal Trade Commission and $35 million to the Department of Justice’s Antitrust Division in last year’s spending bill, according to multiple Hill sources familiar with the negotiations. Both of those agencies are led by anti-monopoly crusaders—Lina Khan at the FTC and Jonathan Kanter at DOJ.
The majority leader also allowed an amendment in the spending bill that lets those agencies immediately collect higher fees from companies that need them to review proposed mergers, a move that is projected to help the FTC and DOJ collectively rake in roughly $1.4 billion over the next 10 years, according to a Congressional aide familiar with the process.
But while those resources will make a difference for the agencies—both the FTC and the DOJ have fewer lawyers now than they did in the 1980s, meaning they are often outgunned by the corporate giants they are up against in court—they are unlikely to convince Congress to change federal statutes to make it harder for tech behemoths to abuse their gatekeeper status.
“To my Republican friends, if we could work together in the last Congress, there is no reason we can’t work together in this new Congress,” Biden said Tuesday night. “The people sent us a clear message. Fighting for the sake of fighting, power for the sake of power, conflict for the sake of conflict, gets us nowhere.”
But when it comes to antitrust legislation targeting Big Tech, it’s clear that Republicans are not Biden’s only roadblock.
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