New Dems: House Judiciary Missed Tech Antitrust Opportunity

The House Judiciary Committee missed an opportunity by marking up six antitrust bills without holding a post-introduction hearing (see 2106250062), an aide for the New Democrat Coalition told us Tuesday. House Antitrust Subcommittee Chairman David Cicilline, D-R.I., told reporters he and ranking member Ken Buck, R-Colo., will continue seeking support from Democratic and Republican members, including the New Democrats and the House Problem Solvers Caucus.

Cicilline didn’t expect every member’s yea vote when the bills hit the House floor but said he is “confident” they will pass. He noted the bipartisan support for the effort throughout a 2-1/2-year Big Tech investigation that resulted in six bills. He acknowledged three California Democrats who voted against five of the bills during markup. “There are people from certain congressional districts that have raised concerns,” said Cicilline. “We’ll listen carefully to them. In the end, not every single member of Congress will vote for these bills.”

The New Democrat Coalition includes six House Judiciary Committee members. Arizona’s Greg Stanton and California’s Lou Correa were the only coalition members in opposition during the markup. Reps. Eric Swalwell and Zoe Lofgren, both California Democrats, also were a nay. The coalition’s remaining Judiciary members are Florida's Val Demings, Georgia’s Lucy McBath, Texas’ Veronica Escobar, North Carolina’s Deborah Ross and Pennsylvania’s Madeleine Dean, the committee’s vice chair. The coalition requested a pre-markup hearing, in a letter led by Rep. Suzan DelBene, D-Wash. There was no formal response to the letter, a coalition aide told us, saying the committee should have followed “regular order.” Judiciary Chairman Jerry Nadler, D-N.Y., had said a hearing was never in consideration, noting the amount of time the committee spent on the investigation and on developing legislation (see 2106230063).

Cicilline said sponsors won’t request floor time until they are “educating our colleagues about what the bills do” so they understand the “importance of passing the bills and reining in Big Tech.” If members have “ideas that will strengthen the bills and help them more quickly restore competition to the digital marketplace, great,” he said: Neither Democrats nor Republicans will support undermining the effectiveness of the legislation. Cicilline responded to remarks from House Majority Leader Steny Hoyer, D-Md., who told reporters last week the bills aren’t ready for a House vote. Legislators haven’t asked to bring them to the floor, Cicilline said: Members acknowledged during the hearing that “we want to continue to work with our colleagues.” The investigation conclusively proved platforms are “crushing competitors, harming small businesses ... favoring their own products and services.”

Cicilline noted that not all California Democrats voted against the legislation. Karen Bass and Ted Lieu, both California, voted to advance the bills. Cicilline noted Bass’ support. Her office referred to her statement that “I want to be clear that I voted to move the bills out of committee with the understanding that the sponsors will respond to concerns raised.” Lieu’s office didn’t comment now.

Cicilline noted he and Buck offered to brief the bipartisan Problem Solvers Caucus about the legislation. The caucus, chaired by Reps. Brian Fitzpatrick, R-Pa., and Josh Gottheimer, D-N.J., didn’t comment.

Cicilline and Buck told us the recent dismissal of the FTC’s antitrust complaint against Facebook shows Congress needs to act. The legislation addresses the issues raised in the dismissal, Buck said. The ruling was understandable, Rep. Jamie Raskin, D-Md., told us: It shouldn’t be assumed Facebook has a monopoly. The agency should have to prove that based on evidence, he said: Hopefully, the agency refiles and presents a more conclusive argument. Cicilline said he has “a lot of confidence” that FTC Chair Lina Khan, who worked as a Cicilline aide, “will craft a complaint that will withstand dismissal.” The commission didn’t comment Tuesday.

Khan got some criticism for some items commissioners approved with party-line votes at last week’s open meeting (see 2107010081). Streamlining rulemaking procedures “risks a court tossing out the entire rule if the Commission's cutting corners ‘precluded disclosure of disputed material facts which was necessary for fair determination by the Commission of the rulemaking proceeding taken as a whole,’” emailed TechFreedom President Berin Szoka. It seems Khan, Commissioner Rebecca Kelly Slaughter and Commissioner Rohit Chopra “are using this short period while Chopra remains a commissioner to rush through changes that would make it easier for Khan and Slaughter to implement their agenda if an unfavorable replacement is appointed by Biden to Chopra’s slot,” said International Center for Law & Economics Competition Policy Director Sam Bowman. Letting individual commissioners issue compulsory demands “means they can more easily sidestep the rest of the commissioners if they oppose an investigation, or don’t think it warrants compulsory processes,” he added.