Cheat Sheet: What a radical GOP antitrust bill that would kill big tech acquisitions has in common with the Democrats push for reform – Digiday

Republican Sen. Josh Hawley of Missouri has put what he called woke mega-corporations on notice, particularly tech platform giants including Facebook and Google.

However, new antitrust legislation he proposed could place drastic new restrictions on all sorts of big businesses.

Despite some similarities to a recent antitrust reform bill from Sen. Amy Klobuchar of Minnesota, bipartisan momentum behind Hawleys bill is likely to be tepid at best considering his polarizing push to contest the Electoral College vote on Jan. 6 certifying Joseph Biden as president. Still, the legislation could step up congressional dialogue around updating the governments approach to defining what anti-competitive behavior looks like in a tech-ruled era.

Hawleys bill is bold and could start a more vibrant discussion around antitrust reform in the Senate, suggestedBarry Pupkin, a senior partner focused on antitrust at law firm Squire Patton Boggs.Itseems sort of, I guess, radical, he said. I think you straitjacket a lot of possibly decent transactions, Pupkin continued, adding, I think though, it starts a dialogue.

So, whats so radical about it? Heres whatHawleysTrust-Busting for the Twenty-First Century Act,introducedon April 12, proposes:

The Democratic bill

On the other side of the aisle, anantitrust reform bill introducedin February by Democratic Sen. Amy Klobuchar, gives both the FTC and the Justice Department, the federal governments other trust-busting agency,more penalty power against companies, more resources and more money for hiring additional personnel. Heres whats important:

What the bills have in common

There is a key similarity between the two bills.Notably, said Pupkin, both Klobuchars and Hawleys proposals seek to shift the burden of proof away from the federal government to the defendant. Hawleys bill requires the party making the acquisition, rather than government regulators, to establish evidence that an acquisitions pro-competitive effects outweigh any anti-competitive impact. Klobuchars bill also would require corporations making acquisitions that are extremely large or could significantly increase market concentration to prove that snapping up other companies wouldnt harm competition.

Youre changing the burden of proof, said Pupkin. Right now, he said, The government has the burden of proving illegality.

Other big tech antitrust lawsuits are underway

Efforts related to anti-competitive practices among the big digital platforms are already underway at both the FTC and the DOJ.The FTC in December launched itsinvestigation into Facebook, alleging the company has maintained its monopoly on the social media industry by acquiring emerging rival Instagram in 2012 and mobile messaging appWhatsApp in 2014.The DOJ, several states and even a publisher group have filedantitrust lawsuits against Google, arguing that aspects of its search, digital ad business and decisions about third-party cookies are anti-competitive.

Hawleys history of fighting big techWhile Hawleys bill would affect all sorts of large companies beyond the tech industry, he has taken special interest in fighting tech platforms, arguing they have too much power and make biased decisions that stifle conservative voices.

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, said Hawley in a press statement introducing his bill.

Hawley has been a vocal critic of Facebook and Twitter for their decisions to ban prominent conservatives from their platforms for posting false or misleading information. 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, he continued in the statement.

In addition to filing antitrust suits against Google and Facebook while attorney general of Missouri, in the last Congress he introducedreforms to Section 230, which protects websites from liabilities associated with information posted by others on their sites. His proposalwould stop large tech firms from discrimination when enforcing terms of service and allow users to sue them for breaching their contractual duty of good faith. And hesent a letter last year to TwitterCEO Jack Dorsey arguing the company did not deserve immunity under the Section 230 law after Twitter labeled as incorrect or misleading former President Donald Trumps tweets making false claims about the legitimacy of President Joseph Bidens presidential win.

Hawleys bill is unlikely to garner support from the left, butSome elements of Hawleys bill that would drastically limit business growth and advantage through acquisition might appeal to Democrats or progressives, suggested Pupkin. However, considering the senators reputation as a staunch Trump backer who led the push to block acceptance of the 2020 Electoral College results, Pupkin said the political optics would likely deter any bipartisan support or even real momentum behind the legislation.

Given Hawleys history in the last three months, particularly around Jan. 6, I think hes going to have tough time getting much of anything through, said Pupkin. A lot of Democrats might be willing to go along with legislation that prevents giant companies from growing, he suggested, but they wouldnt be able to go along with Hawley.

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Cheat Sheet: What a radical GOP antitrust bill that would kill big tech acquisitions has in common with the Democrats push for reform - Digiday