A legislative reform proposed by Sen. Josh Hawley (R-Mo.) to “crack down on mergers and acquisitions by mega-corporations and strengthen antitrust enforcement” is drawing mixed reviews from conservative analysts and Republican campaign strategists.
“A small group of woke mega-corporations control the products Americans can buy, the information Americans can receive, and the speech Americans can engage in,” Hawley said in a statement announcing the proposal.
“These monopoly powers control our speech, our economy, our country, and their control has only grown because Washington has aided and abetted their quest for endless power.
“While Big Tech, Big Banks, Big Telecom, and Big Pharma gobbled up more companies and more market share, they gobbled up our freedom and competition.
“American consumers and workers have paid the price. Woke corporations want to run this country and Washington is happy to let them. It’s time to bust up them up and restore competition.”
Hawley’s “Trust-Busting for the Twenty-First Century Act” includes the following provisions, according to the statement:
- Ban all mergers and acquisitions by companies with market capitalization exceeding $100 billion. This provision would bar Google’s recent purchase of the Waze travel app that was then incorporated into the tech giant’s Maps app.
- Empower the Federal Trade Commission to designate “dominant digital firms” exercising dominant market power in particular internet markets, which would be prohibited from buying out potential competitors. This provision would prohibit Facebook from buying digital startups that could become social media rivals.
- Dominant digital firms would be excluded from giving priority in search results to favored sites without explicitly disclosing the practice. As a result, Google would have to disclose that it gives priority in its search results to its own reviews over those of Yelp.
- Reform the Sherman and Clayton acts to enable enforcement officials to use direct evidence of anticompetitive conduct to support an antitrust claim. Doing so will allow enforcers more effectively to pursue the breakup of dominant firms and prevent antitrust cases from devolving into battles between economists.
- Replace the outdated, numerically focused standard for evaluating antitrust cases, which allows giant conglomerates to escape scrutiny by focusing on short-term considerations, with a standard emphasizing the protection of competition in the United States.
- Clarify that “vertical” mergers are not exempt from antitrust scrutiny.
- Drastically increase antitrust penalties by requiring companies that lose federal antitrust suits to forfeit all their profits resulting from monopolistic conduct.
The Hawley proposal drew praise from Internet Accountability Project (IAP) Founder and President Mike Davis.
“Senator Hawley’s ‘Trust Busting for The Twenty-First Century Act’ is the type of bold leadership and smart legislation this country so desperately needs,” Davis said in a statement.
“Senator Hawley’s commonsense bill introduces the hard reset Congress must enact to save the free market from abusive trillion-dollar Big Tech monopolists and other giant woke corporations attempting to exert too much power and control over our lives.
“For too long, through antitrust amnesty and Section 230 immunity, Google has been allowed to exert too much influence through its control over the internet. Along with Amazon, Facebook, and Twitter, they continue to censor conservatives, violate our privacy and crush their competition at all costs and without consequence.”
Davis is the former chief counsel to Sen. Charles Grassley (R-Iowa) when he was chairman of the Senate Judiciary Committee. He’s also a former aide to then-Speaker of the House Newt Gingrich (R-Ga.), and law clerk to Supreme Court Justice Neil Gorsuch, when he served on the 10th Circuit Court of Appeals.
Americans for Limited Government President Rick Manning agreed, saying: “Senator Hawley is 100 percent correct. Any credibility that Big Tech had as anything less than a cartel was ended with the collusion between Amazon, Apple and Google to destroy the Parler platform’s ability to exist.”
He was referring to the coordinated actions of the three digital giants last December that forced social media startup Parler off the internet for nearly two months.
“These three massive companies could not countenance the existence of a platform they did not control, which allowed the free expression of ideas,” he said.
But others interviewed by The Epoch Times expressed reservations about increasing the power of the federal government over private business enterprises.
“I agree with Sen. Hawley’s heartburn with many of the business decisions of Google, Facebook, and Twitter, yet I believe that busting up these companies flies in the face of traditional free-market conservatism,” Brian Darling said.
Darling, former senior counsel to Sen. Rand Paul (R-Ky.) and former Senate liaison for The Heritage Foundation, is the founder and president of Liberty Government Affairs.
“I think breaking up successful companies hurts the long-term health of the U.S. economy, hurts our competitive tech edge with China, and infringes on the freedom to contract,” he said.
Paul Larkin, senior legal fellow in The Heritage Foundation’s Institute for Constitutional Government and former assistant to the solicitor general, told The Epoch Times that the bill has some serious drafting problems.
“The definition he offers for Section Two is internally incoherent because it says, ‘If you prove X, then you don’t have to prove X,’” Larkin said, referring to the section of the proposal that specifies a plaintiff need “neither define the scope of a relevant market, nor establish the share of such a market controlled by the defendant” regarding a claimed violation of the anti-trust statute.
“And his list of factors to define ‘market dominance’ invites agencies and courts to make it up as they go along,” Larkin said. The Heritage fellow has argued 27 cases before the Supreme Court during his career.
Similarly, David Williams, president of the Taxpayers Protection Alliance, claimed the Hawley proposal would harm competitive enterprise.
“The legislation, like most populist policies, will royally backfire. The ability for firms to merge, acquire, and invest fuels economic dynamism and competition. Sen. Hawley’s approach is misguided and bizarrely invites more government regulation,” Williams told The Epoch Times.
“The more the government regulates technology, the less innovation we’ll have. Government regulations and liberty don’t go together. No government should be so big and so powerful that it can destroy businesses.”
Congressional correspondent Mark Tapscott may be contacted at firstname.lastname@example.org