In the movie Any Given Sunday, Coach Tony D’Amato, played by Al Pacino, says that “life’s this game of inches, so is football.” As any coach will tell you, driving the ball down the field bit by bit is the most efficient way to win a game—much more so than tossing up “hail Marys” in the first quarter. Antitrust reform could learn some things from Coach D’Amato’s speech. Much like football, bringing about reforms to legal systems is a game of inches, requiring incremental, yet significant, progress.
Antitrust reform entered the 117th Congress with a bang.
Congress approached antitrust reform with a slew of targeted bills. For example, the Open App Markets Act (OAMA) addresses Apple and Google‘s anticompetitive app-store practices. The Merger Filing Fee Modernization Act (Merger Fee Bill) adjusts pre-merger fees—lowering them for small businesses and raising them for Big Tech. To stave off China’s influence over our largest companies, the Foreign Merger Subsidy Disclosure Act (Foreign Disclosure Bill) would require large companies to disclose any financial support or subsidies from a foreign government to the Justice Department or Federal Trade Commission. The State Antitrust Enforcement Venue Act (Venue Act) takes away Big Tech’s home-field advantage in antitrust suits against state attorneys general by having them fight the case where the malfeasance took place. Also, Republican Senator Mike Lee‘s Ad Tech bill adds transparency to pricing structures in digital ad markets.
To top it all off, Congress introduced the American Innovation and Choice Online Act (AICOA). AICOA represents the strongest slate of structural antitrust reforms to address the largest platforms’ anticompetitive behaviors. It covers every major business model in the tech sector, from digital marketplaces to social media to search engines. It would prevent Amazon and Google from unfairly prioritizing its or its partners’ services over smaller sellers on their platforms, Facebook from denying users of other social networks from communicating with its users, Apple from limiting access to portions of its devices to favor its apps over those of smaller competitors, and more. Put plainly, AICOA is the “big kahuna” of all the antitrust proposal so far.
Inch by inch, we were making significant strides. OAMA sailed through the Senate Judiciary Committee. Senator Amy Klobuchar openly supported Senator Lee’s Ad Tech bill. The House of Representatives passed the Antitrust Reform Package—which included the Merger Fee bill, Foreign Disclosure Bill, and Venue Bill—with 39 Republicans voting for it last September.
So here we are, almost two years into the Biden administration, and what does the antitrust reform movement have to show for its efforts so far? Very little. Of the seven bipartisan antitrust reform proposals before Congress, not one has yet become law.
In short, with the congressional calendar nearing its end, we still don’t have any points on the board.
One reason is that Big Tech companies have been fighting tooth and nail against each of these bills. Apple and its proxies make unfounded claims that OAMA’s provisions to make app stores more interoperable will decrease the security of our devices. Amazon says that AICOA will somehow kill Prime. Big Tech allies even claimed that a bill reducing merger filing fees for small companies, raising them for large ones, and reducing the federal deficit would somehow allow the executive branch to run amok.
So how can antitrust reform advocates salvage this Congress? By recognizing that antitrust reform, like football, is a game of inches.
Start by getting the most popular, bipartisan bills into the end zone. Since the House has already passed the Antitrust Reform Package and key Republican senators have signaled they would vote for it, the Senate should knock that off the checklist as soon as possible. It can then push for more substantive bills that have strong bipartisan support, like OAMA. Then once those pass, end the term with a bang by bringing the largest antitrust bill, AICOA, to the floor.
Proceeding incrementally, Congress will not only get real points on the board but can also break up Big Tech’s unified stronghold by drawing each company into more parochial fights.
Consider OAMA, which targets app store competition. Many tech companies, like Microsoft, Epic, and Spotify, have openly supported the measure. Google, which has its own app store, is theoretically opposed but largely absent in the fight given that its app store is mostly interoperable already. This leaves only Apple in opposition to OAMA. The reason? OAMA would make it impossible for Apple to keep charging the Apple Tax, a 30 percent fee on small developers’ app revenues.
With more targeted measures passed, Congress will have demonstrated to Big Tech that it can get things done. This may even encourage a broader set of tech companies to support bills that would enact even more antitrust reforms, like AICOA.
An alternative strategy has been circulating in antitrust reform circles: the all-or-nothing gambit. This strategy calls on Congress to vote for OAMA, AICOA, and the Antitrust Reform Package together. This hail-Mary strategy makes easier-to-pass bills, like OAMA and the Antitrust Reform Package, sacrificial lambs. And it lets Big Tech unite in a none-of-the-above strategy. Frankly, the Antitrust Reform Package and OAMA’s broad popularity is not enough to carry AICOA. Due to the enormous scope of AICOA in comparison to those bills, it’d be like asking an ant to carry a boulder over a hill.
As of now, Congress has a choice. We can let the perfect be the enemy of the good and lose, or, as Coach D’Amato put it, “we can fight our way back” and “climb out of hell, one inch at a time.”
Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, DC. The Digital Progress Institute is a DC nonprofit seeking to bridge the policy divide between telecom and tech through bipartisan consensus.
The views expressed in this article are the writer’s own.
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