Future Tense

Lessons for Congress From the Big Tech Antitrust Hearings

A woman in focus in the background speaks, with a blurred man in the foreground wearing a mask.
Rep. Pramila Jayapal at the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law hearing on antitrust on Wednesday in Washington. Pool/Getty Images

You may be forgiven for having thought that Wednesday’s Big Tech CEO hearing—in which the top executives at Amazon, Apple, Google, and Facebook were scheduled to get grilled by Congress on antitrust and unfair competition issues—would be one of the must-see Hill events of the season.

But as with earlier congressional events in 2020—notably the impeachment in the House and trial in the Senate of President Donald Trump—Congress overpromised and underdelivered. What could have been a teachable moment for students of American public policy quickly morphed into something that was mostly (although not entirely) an empty exercise. Given how much the hearing overall was focused on the merely performative—with so many members seeking primarily to score points for audiences on C-SPAN or at home—it’s worth asking what kind of lessons could be learned from Wednesday’s hearings. I have a few ideas.

For me, the first lesson is clear: If you’ve managed to corral the top four of this country’s CEOs for an afternoon of questioning—quite a coup de théâtre in itself—you must impose enough discipline on your committee members to keep their questions on the nominal subject of the hearing. Wednesday’s hearing was convened by the House Judiciary Committee’s subcommittee on antitrust. This should have meant that the members’ questions—and the tight intervals of time in which they got to ask them—should have been focused on antitrust and competition questions. As a practical matter, this should have meant that Republicans’ complaints about anti-conservative bias were out of order—and that Democrats’ questions and comments about 2016 election interference by the Russians should have been out of order, too. It’s not that these issues are categorically unrelated to competition questions, but they mostly are. The chair and the ranking member ought to insist that their colleagues stick to the topic.

A second lesson is that it does no one any good for a member to start out with his or her rage volume amped up to 11. Many Republican members lock-stepped their furious way through talking points based on dubious claims of anti-conservative bias, sometimes seasoned with conspiracy theories. Florida Rep. Greg Steube made it clear that he’s certain the tech companies have deliberately made it harder for constituents and his family members to reach him through email.

That said, Steube was a bit calmer than Rep. Jim Jordan of Ohio, who—in addition to insisting that the tech companies are discriminating against conservative news sources and opinions—fumed that the companies are actively plotting to ensure election victories for Democrats this fall. He also believes, or at least performs as if he believes, that Google tried to engineer a victory for Hillary Clinton in 2016. “In 2016, Google tried to tailor their features to help Clinton in key states,” he told Fox News’s Tucker Carlson on Wednesday, adding that “[t]he good news is in 2016, in spite of what Google did, the American people saw it for what it was and Donald Trump was elected.” The conspiracy theory claims were disturbing enough in their substance, but to anyone watching the hearing, the delivery was disturbing, too. Jordan seemed barely able to contain himself when other committee members expressed disagreement with his assertions, and at one point it seemed possible that the chairman might have to order Jordan removed from the room. Later, Jordan tried to steer the questioning to his concerns about “cancel culture,” which he insisted has made a victim of former New York Times opinion writer and editor Bari Weiss. “I thought we had a First Amendment,” he complained. (As a legal matter, the First Amendment has nothing to do with Weiss’ decision to resign from the Times.)

I don’t mean to suggest that only Republican members seemed driven by animus. Subcommittee Chair David Cicilline of Rhode Island basically declared that he already had concluded the companies were acting anti-competitively. Well, let’s assume they have—even if that’s true, there’s something to be said for saving your anger until after the first damaging admissions … or lies. By comparison, ranking member Jim Sensenbrenner, a Republican from Wisconsin, seemed calm, perhaps comforted by the knowledge that he’s retiring from the House after this year—even if he did feel compelled once or twice to echo, pro forma, concerns about the purported anti-conservative bias. (My own representative, Jamie Raskin, a Democrat from Maryland, thankfully took time to point out that, to judge by available statistics, conservative news and opinion sources are doing quite well at reaching their online audiences.)

A third lesson, which several members of the committee already have successfully internalized, is that there’s no real substitute for being prepared at a highly granular level to challenge the witnesses about this or that company practice that you want to call into question. Let’s be real here: Of course Amazon, a platform for other vendors that’s also selling its own branded products, is using its data to decide what products to offer, how to price them, and how to compete. Of course Facebook, once it had a lot of cash in its coffers, ended up weighing whether to compete against uppity rivals or just buy them. If it’s less clear whether Google or Apple have indulged to the same degree in similar strategic uses of platform data or the ability to purchase rivals, a prepared member of Congress ought to have done the homework necessary to dig down into what the differences are. Among the members who deserve good grades for meeting the homework requirement are Rep. Pramila Jayapal, a Democrat from Washington, challenging Facebook’s Mark Zuckerberg about the acquisition of Instagram and Rep. Kelly Armstrong, a Republican from North Dakota, who quizzed Google/Alphabet’s Sundar Pichai about “geofence warrants” that force tech companies to turn over data for anyone who happened to be near the scene of a particular crime.(OK, I’m not entirely sure of the antitrust connection for geofence warrants, but I was still glad to see the question asked.)

Which brings us to the fourth lesson, which is this: Members of Congress, don’t let the sheer dramatic impact of haling a couple of billionaires (Zuckerberg and Amazon’s Jeff Bezos), together with a couple of high-performance multimillionaires (Apple’s Tim Cook and arguably Pichai, although the latter may already have crossed into the billionaire club) distract you from the primary purpose of these hearings, which is both to inform the public and to make the case (if there is one) for legislative intervention in these markets, with these particular businesses.
The witness list was impressive, but it was hard to ignore the fact that committee members were so focused on Facebook, Google, and Amazon that we hardly heard much from Tim Cook, other than some not-entirely well-researched questions about Apple’s App Store. At one point I found myself imagining Cook’s sending a message in Zoom chat: “Guys, I’m still here? In case you want to ask me anything?” Shortly afterward I wondered openly on Twitter whether “Tim Cook is filling out a crossword puzzle right now.” To which I got this tweet in reply:

Don’t get me wrong: I think there actually can be socially useful purposes—even morally instructive ones—in compelling Jeff Bezos to listen to a recording (provided by Rep. Lucy McBath, a Democrat from Georgia) of a hapless vendor whose textbook store was delisted by Amazon. If the hearing had had even that much dramatic focus throughout, the five-plus-hour event would have flown by. But the overall lack of discipline and focus on the part of so many of the committee members—together with the CEOs’ risk aversion that led them to avoid straight answers even when a “yes or no” answer might have been the safest response—transmuted what should have been a historic confrontation with, and possibly a calling-to-account of, the biggest of Big Tech CEOS into a dreary slog. If Congress ever has another chance to assemble this all-star witness panel again—which seems unlikely—let’s hope the members have at least learned a few lessons from this one about what not to do.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.