Opinion | Why Republican Ken Buck Believes in Antitrust and Doesnt Believe in the Big Lie – The New York Times

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When you walk in the room, do you have sway?

Im Kara Swisher, and youre listening to Sway. My guest today, Congressman Ken Buck, has been at the forefront of the Republican Partys efforts to regulate Silicon Valley. Hes the ranking member of the House Antitrust Subcommittee. He teamed up with Democratic Congressman David Cicilline to introduce a package of antitrust legislation this summer, aimed at companies like Amazon, Apple, Facebook, and Google. So I wanted to talk to Buck about what will actually get passed, what the Facebook files and whistleblower revelations mean for the regulatory road ahead, and whether hell be able to bring along his fellow Republicans, some of whom think antitrust is just a euphemism for big government.

Congressman Buck, welcome to Sway.

Thank you. Its good to be with you.

So I wanted to get a sense of what brought you yourself here. You represent Colorados 4th Congressional District, which covers the eastern part of the state. And issue-wise, that screams energy and agriculture, not tech. So talk a little bit about what brought you into big tech and antitrust and focusing in on these companies.

Well, David Chairman Cicilline has been a great leader and really reached out in a bipartisan way, and I very much appreciated that. And we conducted a series of hearings together last year, and one of them was in Boulder, Colorado. And when I listened to the testimony of these small startups and how theyve been treated by these four monopolies that you listed, I was really shaken by it, I guess. I was a prosecutor for 25 years, and the conduct of these companies was akin to the kind of white-collar crime that I was used to seeing, not the kind of business activity that one would expect to see from companies that are these startups are actually clients. Theyre putting their products on Amazon, on Google. And to have them just abused and cheated in the way that they were just offended me. And I decided that this was a really worthwhile project to spend time on.

Was there one thing that bothered you?

Oh, I could give you dozens of examples. Amazon, for example, allegedly offered to invest in certain companies and receive proprietary information from those companies, and then went and duplicated their product. And so just the lying of, were interested in investing in your product, and then using that information to unfairly compete is to my mind, its fraud. And I saw the same thing with Google. Theres a company that produces music lyrics, and Google allegedly just kept copying those music lyrics. And then, they did the same thing with Yelp. And its just not the way we should be doing business in America. Now, there are bad actors outside of monopolies, but I believe that these four companies got away with what they got away with because they are monopolies.

So you used the term, monopoly. Youre a lawyer. Youre someone who understands these distinctions. Most people throw around the word monopoly in a way that doesnt necessarily apply. But talk to me about, from a legal perspective, why you think that is the case.

Well, let me back up one second and tell you, as a conservative, I dont think big is bad. I think big is great. I think that a lot of our innovation comes from having big companies. And I think that they do a lot of good for American and American workers. But when your company has a competitive advantage because of its market share so in other words, there are two platforms for phones. One is Apple, one is Amazon

No, Google.

Google. Google, Im sorry, yes. There are no other competitors in that way. Those two can do things on their app stores that others cant.

Does big eventually always lead to this? Because I think a lot of people think that these companies need to grow, that theyre sort of rapacious in their need to grow. I sometimes call them the Borg, and all they want to do is eat. Is it impossible to get to that size and not do this, do you think?

Well, I think it is certainly tempting for a company that has an overwhelming market share to act in this kind of way, because theres always a pressure to increase profits, and theyll take advantage of that monopoly position. I dont think its necessarily there are political systems that rely on benevolent dictators. I dont think these are benevolent monopolists, and so the big isnt necessarily bad. If you had 10 big oil and gas companies, youd still have competition at the pump for pricing. You dont have that in this situation. And its a new technology. One of the fascinating things that we found in this investigation is that the laws that were written in 1890-something and 1914, the Sherman Act and the Clayton Act, nobody anticipated the kind of commerce that were seeing now on the internet.

So youve introduced a package of House bills this summer on antitrust that came out of these investigations. Whats the status of those House bills? Could you walk us through? And which one do you think is most likely to pass?

Sure. So after a 16-month investigation, we got together and drafted six bills. Two of them are really no-brainer kind of bills. The other four are more controversial, especially on my side of the aisle. And interestingly, the California Democrats have a problem with them, because theyre in California. The four bills that are being debated heavily and as a package would deal with some of the issues that were trying to deal with. So we have the non-discrimination bill. Weve seen that Amazon is self-preferencing, and the nondiscrimination bill basically says, Amazon, you cant do that. Now, the Facebook issue they have acquired Instagram and WhatsApp. And they did that during a time period that big tech mergers occurred, and there wasnt a single challenge by the F.T.C. or Department of Justice Antitrust Division. And so the merger bill just says, were going to flip the burden for these four companies on mergers. You have to basically show that a merger is pro-competitive, as opposed to showing us anti-competitive.

Okay, the third one?

The third one is what we call portability. And just as you can take your cell phone number from Verizon and move it over to AT&T, this would give you the ability to take your digital file and move it from Google to Bing. We found that after the Telecommunications Act in the 1990s, it opened up the cell phone market. People were more able to make determinations based on quality and price, rather than having been locked in because all their information existed with one carrier. So thats the portability bill. And the last bill thats really at issue and its probably the toughest one, it passed the markup in the Judiciary Committee by just one vote is what we call a structural separation. And that bill would say that you can operate Facebook, but you cant have Whatsapp, or you cant have Instagram. And Google, you cant have YouTube, and

So you cant be both a marketplace and a seller of services, for example.

Yes. It basically separates the businesses out into smaller businesses.

And then theres a smaller one that updates merger filing fees, which is just a revenue generation bill. Which of these that was the only one I feel like could actually pass. What is the status from actually passing?

So the merger filing fees bill, I think, is one of the no-brainers. The other one is the venue bill that just gives state attorney generals the same ability to sue in their own states and not have a case removed. But I think the two bills that are most likely to pass that would have the biggest impact are the nondiscrimination bill and the merger bill that would require them to show that a merger is pro-competitive. I think those are the two that are getting the most traction on both sides of the aisle.

Mm-hmm. And the impact, you think, will be significant?

By shining a light on this area, one, we see more journalists taking an interest in it. Two, we see the public taking a greater interest in it. And three, the legislative branches around the country, as well as the courts, are going to start taking more of an interest in this. And I think youre going to start to see the, really, public opinion moving policy in this area.

Let me ask you. You mentioned the Democrats. President Biden is building up an antitrust trifecta in Lina Khan, Tim Wu, and Jon Kanter. So talk a little bit about that. How do you look at those things? Because those picks that he made are quite aggressive. These are all people who sort of probably agree with you on a lot of these things.

Oh, I think they do agree. And I think that the key to all of this is the executive branch and how they choose to enforce these laws. And there are laws on the books. They are more vague than what we are proposing. And so were really giving a scalpel, as opposed to a chainsaw, in the F.T.C. and Antitrust Divisions ability to go after these companies.

So how do you look at these picks that President Biden made of these three particularly I would say, tech critics, I think?

They obviously are aggressive. Some of them have been talking about things that really create a partisan division that Chairman Cicilline has been great at trying to bridge. And it scares Republicans. If you stay to antitrust, and you talk about, we need to create competition in the marketplace, I think itll be a lot more popular on my side of the aisle.

So if the House shifts to Republicans in the midterm elections, is there enough Republican support behind you to continue to pass these bills, which you think are good bipartisan efforts to do something about it?

Yeah, its tough to say who gets elected in the next wave if Republicans do win the House. And tough to say how the bills will change if Republicans win the House. But certainly, the big tech companies are spending a lot of money right now, trying to run out the clock and make sure that they dont get passed in this Congress where there is some momentum.

And you think that will happen at this moment?

I think the bills will pass.

Okay. Lets talk specifically about these companies. The House bills were a culmination of this investigation, which you noted, into Amazon, Apple, Facebook, and Google. Lets go through these companies just quickly. Youve mentioned some specifically, but I want to talk first about Amazon. You and some other members of the House Antitrust Subcommittee just sent a letter to the company essentially asking whether its executives, including Jeff Bezos, misled you during your investigation into its business practices. Give us an overview of why you did that and what you think is going on here.

So there was a report covered by a number of news organizations that talked about the self-preferencing that Amazon engages in in India, specifically. We found the same things here in the US, but I think that report really highlighted the issue at an important time. Because, hopefully, these bills will get on the floor within the next or at least this year, in November, December. And so it was an opportunity for us to say to Amazon, clarify what you told us before. This is really confusing. And to his credit, frankly, Jeff Bezos in his testimony said, we have a policy against self-preferencing. That doesnt mean we never do it. But we have a policy against it, and were doing our best to enforce that policy. Well, I dont know that they are doing their best to enforce the policy. So Im not suggesting that he lied. Im suggesting that his testimony and the testimony of others has been misleading in terms of how they really oversee the operation of their various companies in different countries.

So in other words, bad things happen. We try not to, but bad things happen. And you feel like they dont try to stop bad things from happening.

Well, if you turn a blind eye to bad things, if you put your head in the sand, if you only care about profit and reward profit and not-good behavior, bad things are going to happen more often.

So what do you want from Amazon specifically?

Well, the letter requests them to clarify their position. I think theres a lot of reporting now, and a lot of former employees have come forward and said, this is part of the business practice. And I think if Jeff Bezos were to be honest, he would come forward and say, yeah, we did it. We did it far too often. And I think, then, the American people would get a greater understanding of why exactly these monopolies exist and what the antitrust laws could do to help prevent this kind of conduct.

So Apple, they just survived this antitrust suit by Epic. You recently introduced a bill that would set the rules of how companies like Google and Apple, as we talked about, run their app stores. How do you look at them?

Well, when you look at the conduct of Apple and take Apple Music and Spotify. They charge Spotify a 30 percent surcharge so they have a competitive advantage. And the nondiscrimination bill would say, if youre going to treat Spotify this way, youve got to treat Apple Music this way. You cant treat these different entities differently.

And what about Google?

Well, when Google basically steals the information from Yelp and creates its own, and Google has a 90 percent share on handheld devices and mobile devices and a very similar percentage on desktop searches, its overwhelming. And part of the reason they have that, frankly, is they have a better search engine than Bing and other products. And so kudos to them for being able to create that. But once youve created it, then you cant use it in a way that discriminates against people. And Im not sure that they would agree with me on this, but in their choice of algorithms and other conduct, they have really influenced the marketplace in a way that isnt healthy. Itd be much healthier if we had five Googles out there that people could pick and choose from.

So of course, company receiving all the attention these days, Facebook, and the recent testimony from whistleblower Frances Haugen she alleged the company continued to prioritize growth over safety, specifically brushing aside internal research about, for example, Instagrams effects on teens, not doing enough to address election misinformation, and on and on and on. These keep coming out. Do you think this could be Facebooks big tobacco moment?

I think its different than big tobacco. It takes you about 30, 40 years to die of smoking, and it takes you evidently just a few months as a teenage girl to start having suicidal thoughts. And so

So, worse.

I think its incredibly sad, frankly, that somebody when I get on an elevator in the House office buildings, these kids have a phone to their face, and they never say hello. We have transformed our society into an almost antisocial, pro-tech society, and its scary to me. But as it concerns Facebook, I think they had research that showed, full body pictures of other teenage girls were a contributing factor to a young girls self-image. They had research that showed that their platform is being used by human traffickers and drug cartels, that a lot of bad activity was going on. And frankly, they didnt do enough to deal with that. Now, that doesnt make them a monopoly. There are plenty of bad actors in competitive markets. But it really does point out that if we had five Facebooks, a parent would have the choice of saying, youre not using Instagram. Youre going to go use this app over here.

So one of her most significant claims is that Facebook lied to shareholders about the impact of its algorithms. Could this hit Facebook in a way that nothing else has so far?

Oh, I think it will hit Facebook in a way. And I talked to members who were agnostic about antitrust, and theyre coming to me now and saying, how do I sign up for this? Theyre just really deeply offended. And its not on an antitrust level. Theyre just deeply offended by a company that would act in this way. Its almost robot-like, and without any emotion or concern. And I understand that you can cut corners for profit, but when you put it above just basic humanity and caring for your community, I think it is something that will turn a lot of people off.

Does the S.E.C. have teeth here? Facebook paid the S.E.C. $100 million to settle the Cambridge Analytica allegations but didnt admit or deny those claims. The F.T.C. had settled a case when they paid $5 billion. I said it was a parking ticket, and if they added a 0, they might start to get interesting. Do our regulatory bodies have enough teeth here to fight back?

Well, I have to tell you, youve mentioned a couple in the U.S. Weve had similar cases in Europe and similar cases in Asia, and they really are parking tickets to these folks, because their combined revenue from these companies exceeds all but I dont know what it is, 16 or 18 countries in the world. The G.D.P. of 16 or 18 countries in the world.

Right.

So I think that judges, when theyre handing out penalties or accepting settlements, really have to think on a much different level than what weve been thinking about before.

Mm-hmm. So you recently co-authored an op-ed with Cicilline, where you suggested WhatsApp and Instagram would have been less toxic if Facebook hadnt acquired them. What did you mean by that?

Yeah, so both WhatsApp and Instagram the founders had a vision for how the company should operate, and it was really

And theyve left. Just to be clear, theyve left the company under

Well, they stayed with the company after the acquisition, and then at some point, the Facebook executives were moving the company in a direction that was offensive to them, and then they left. And so its quite obvious that if these companies had remained independent, they would have flourished. They would have created competition in the marketplace, and they would have acted in a much more responsible way. And thats really why I think the antitrust laws are applicable in this situation.

So what do you do now? Do you want them to what could they do? Split off Instagram and WhatsApp, for example, at Facebook?

I think that the structural separation bill would do just that. It would give the government and the courts the authority to separate these different entities out. And part of the rationale for that bill is that at the time that the acquisition occurred, there really wasnt sufficient information to be able to challenge it in court.

So you could go back and do that?

Right. Its sort of looking back and making that kind of decision. It is the toughest bill, frankly, to pull off. In my mind, it would be much better to have the top five different entities that were a combination of Facebook, WhatsApp, and Instagram, rather than having the three entities separated.

Separated. Oh, thats interesting.

Especially now that the folks with a conscience have left those companies, Im not sure that you are really going to be able to replicate what they intended to do.

So when you think of the whistleblower complaint, particularly polarization and teen mental health, as you discussed, do you think content moderation policies are the root of the problem? Or is it just the algorithms that these companies use? House Democrats on the Energy and Commerce Committee just introduced a bill to reform Section 230. Im not a big fan of what they wrote. But itll hold certain platforms accountable for knowingly or recklessly using malicious algorithms. Well, how do you look at 230?

Its really a fascinating issue.

It is.

And its one of the things that really divides right down the aisle. The Democrats in the House and Im speaking for them, but from talking to friends, they believe that President Trump and others have been reckless regarding the January 6th incident, the vaccine mandates, issues like that. And so they think that the platforms should do a better job of regulating speech when it comes to what they believe are irresponsible statements. On the right, Republicans are upset that Republican speech is being moderated, censored. And so they are we are upset with that. And so the platforms really have a delicate balance, a tightrope to walk. From my perspective, weve always allowed speech in this country that has been wrong. And if you have a newspaper, obviously, there are libel laws that you are allowed to print things, and then have another newspaper compete with you. And I think thats really the answer, is the competition. We have cable news channels that disagree with each other fundamentaly.

Yes, Ive noticed. Ive noticed that.

[CHUCKLES] And I think that we are a better country, from my perspective, the more information thats out there. And having said even if some of its flat wrong and scientifically wrong. Having said that, I have to tell you, I go to a lot of town hall meetings and other meetings where I get people who are just furious with me because I didnt support President Trump on this or Im not talking enough about the border or whatever the issue is. And they just get so ratcheted up with the internet and the information on the internet.

So you dont mind that? You dont mind that even when its false? Do you think social media is biased, for example, against conservatives? I know that was an issue on your committee.

I dont think were ever going to agree on whats fair censorship and whats not fair censorship. I look at the Hunter Biden laptop story, and I think that that was unfairly censored right before the election. David may disagree with me. He may very well say that there wasnt enough proof and it had too much of an influence on the election, and so it was fair to do that. I think that when President Trump raised the issue of the origins of Covid, it was not an unfair issue to raise, and its something that should have been debated at the time. There are things that I think have been censored. I dont monitor much on the left, and so I dont know whether the left has been censored a lot also. So its hard for me to say whether its unfair censorship, but I certainly think that the right has been censored.

All right. Youd be surprised that I agree with you on the Hunter Biden. They should not have taken that up, and they did then say, we made a mistake. But its not a pattern. Its an anecdote. And the most popular things on, say, Facebook or any of these sites are conservative. So you think that this idea of misinformation should not should just youre just going to take it at these meetings, even if you dont agree with what the people are saying and even if the things they say are incorrect?

Well, no, I take that as an opportunity to educate and to disagree with people and to challenge their assumptions. Its not popular, but thats what I do at these meetings when Im confronted with that. Section 230(c) talks about something that is otherwise objectionable. And you can run a Mack truck through something that is otherwise objectionable. It should involve the same thing that it involves for newspapers and others. You should not print something that is false and would lead to imminent danger to a person. The more vague you get, the more difficult it is for these platforms to make a good decision on what should be on their platforms and what should be off. If were talking about vaccines and ivermectin, for example, thats a fair debate for us to have in this country. I had cancer. I had stage four cancer. I had somebody come up to me and say, you shouldnt do chemo. You should eat blueberries. Well, I dont think Im not the smartest bear in the woods, but Im not the dumbest bear in the woods either. I looked at them and I thought, you know, okay, if you get stage four cancer, you go ahead and do that, but Im going to go get my chemo. And I survived. And I dont think I would have if I just relied on buckets of blueberries. So I do think that we have to make sure that we have a K-through-12 education system that develops critical thinking skills, and we have to rely on people to make good choices.

You know, I get your point, and I do agree with you on many things. But you know, vaccine misinformation, for example and I would call some of it really dangerous. You can have your debate of whether you should take a vaccine or not, but its very hard when it overwhelms in a way that, say, the Covid misinformation has. Its different when youre taking a blueberry cleanse, or whatever you want to call it, for cancer. And then, not getting vaccinated because you have bad information and that affects a wider range of people.

Sure. So one of the things that you do, and that I do, we consider not only the information but the source of the information. And when I go and I talk to my doctor about vaccines, he gives me certain information. I dont just take his word for it. I also do some research. And I look at the different opinions out there, but I certainly trust my doctors opinion more than I do some website thats been in existence for two weeks. And so I think thats part of what we have to do as Americans, but I dont know that its overwhelming. I dont frankly spend a lot of time I dont own a T.V., and I dont spend a lot of time on the internet, watching shows or reading things from unreliable sources. And so the people that do that I dont care how much you try to protect some of these people. Theyre going to make stupid choices, because they rely on stupid information.

Mm-hmm. I mean, for example, you were speaking of blueberries and cancer. And you said in December of 2020, I have the freedom to decide if Im going to take a vaccine or not. In that case, Im not going to take the vaccine. And yet, you are now vaccinated. Correct?

Im not.

Youre not vaccinated? Youre not vaccinated. When you decide, for example, Im not going to get vaccinated, how do you manage that when people have so much emotion around these things?

Well, I manage it by trying to stay optimistic and stay focused on the commonality and not the differences that we have.

Well be back in a minute.

If you like this interview and want to hear others, follow us on your favorite podcast app. Youll be able to catch up on Sway episodes you may have missed, like my conversation with Congressman David Cicilline, and youll get new ones delivered directly to you. More with Representative Buck after the break.

All right. So when you come to something like election misinformation, for example, and this Big Lie theory thats all over these platforms and it is more than anywhere else. And I know its on cable. I know its in newspapers. I know its everywhere, but the stuff flowing over these giant platforms is really quite vast. Now, this was allowed to go unfettered. Do you think that is okay, even if you do not agree with it?

First, yes. The answer is yes. And two, I dont believe in the Big Lie. And I have seen many of the articles, and I have analyzed them. I was the state Republican chair in Colorado during this cycle. Many of the accusations that were made concerning Dominion machines and illegal immigrants voting and other things were things that I was able to monitor. And in my belief, it absolutely didnt happen in Colorado. And Im very skeptical that it happened anywhere else, and I havent seen clear evidence that it has happened in other places. I think that when people continue to spread false information, they lose credibility, and they lose popularity. And these debates, frankly, have been helpful. I think that while I may disagree with some of my colleagues about the Big Lie, I dont disagree that we need to make our elections every bit as secure as we can make them, at the same time, promoting participation in our elections. And so I think those are good discussions for our country to have.

So just so I make sure I have it correct, you dont believe the election was stolen, and believe the Big Lie is a lie. But you just said that people figure it out, and then the truth outs itself. President Trump has never been more popular. And this lie thing is doing pretty well as a lie. How do you combat that? Again, is it just by competition?

I think it is. We have competition in the political world, just like I would love to have competition on the platforms. And I think, at some point, if President Trump decides to run for president again, there will be competition on the Republican side, and there will certainly be competition on the Democrat side. And voters will make a choice. And frankly, I think that President Trumps policies were better than President Obama and President Bidens policies. There are other things that people will look at and say, I cant vote for that man. And so I get that, but thats part of the beauty of this country, is, we dont have a Communist Party, like they do in China, that decides what information is going out there and what information cant go out there.

Okay. So when Liz Cheney condemned the big lie in May, you were one of the few Republicans who defended her. So can you talk a little bit about that?

Yeah, I think one of the reasons I love the Republican Party is we have a vigorous debate about abortion. We have a vigorous debate about guns. We have a vigorous debate about a lot of issues. And the fact that Liz Cheney stood up and said, I think this is a lie, and I think its very dangerous for us to promote this, is part of what I believe is an important function and process in the Republican Party. Just as the Democrats challenge themselves all the time on a lot of issues, we need to challenge ourselves. And so I think that I dont condemn Senator Sinema or Manchin for what theyre doing. I think it strengthens the Democrat party, and I think that Liz Cheney strengthened the Republican Party. I didnt agree with everything she said, but I certainly believe that its part of our process.

But she seems to be a party of one. Youre saying a vigorous debate. Its pretty much Liz Cheney and Adam Kinzinger saying, this isnt true, and youve just said the Big Lie was not true. But its not a vigorous debate.

Well, Ill tell you, I think it is vigorous behind closed doors. I dont know that it is vigorous right now out in the open.

Ah, closed doors! Dont get me with those.

Yeah, no, well, I suppose a reporter doesnt like the closed doors very much. But

Yeah, who likes it?

The reality is that I have been involved in a number of very heated discussions about both the November election and the January 6th you know, whatever you want to call it. I consider it a riot, other people use the term insurrection. But I think that is an important part of what were trying to accomplish. And yes, I think that the American public needs to understand that the Republican Party is not all on one side or the other of this issue. And really, the problem that I think Liz has is, a lot of Republicans want to focus on the policies that are in place now Afghanistan, the border, inflation and not focus on the November election. And so when she is focused on the November election and arguing with President Trump, it elevates that issue above the issues that a lot of us would like to be talking about before the midterm elections.

Sure. But thats sort of saying, like, the lady should keep her mouth shut, right?

No.

Isnt that I mean

No.

No?

No. I think when youre going to a press conference, which she did, and you are asked a question whether President Trump is the leader of the Party going forward, there is a more polite way or a more diplomatic way or more unifying way of messaging than to say, he has no role in the Party. Of course, he has a role in the Party, just as President Obama has a role in the Democrat Party. And so those kinds of statements detracted from what Republicans want to focus on right now.

But you think its just saying it in public airing your laundry in public is what, essentially, youre saying is that she should move on? Or do you still continue to support her for her truth, I guess?

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Opinion | Why Republican Ken Buck Believes in Antitrust and Doesnt Believe in the Big Lie - The New York Times