Opinion

Here’s the inside story of how Congress failed to rein in Big Tech

In the end, however, Congress failed to act. And in that failure is a case study of how Congress has lost its ability to address the most pressing problems facing the country.

The root cause of this dysfunction has been the sorting of Americans into two warring tribes, liberal and conservative, Democrat and Republican. Over time, this hyperpartisan competition has played out to a stalemate in Congress, with legislative majorities that are so small and tenuous that every issue is now viewed through the lens of how it could tip the next election.

And so it was with a handful of bills meant to end the anticompetitive business practices of Apple, Amazon, Facebook and Google. By early 2022, all had been voted out of committees in both chambers with bipartisan majorities. All had broad support from voters, knowledgeable experts, regulators and the White House. Yet not one was taken up by the full House and Senate.

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The prime suspect in this legislative murder mystery is Big Tech itself. In terms of lobbying, advertising, public relations and stepped-up campaign contributions, the four companies spent an estimated $250 million to kill the various bills. In financial terms, that represented about 1/10 of 1 percent of their combined annual profits. On a political scale, it was an overwhelming show of force.

Corporate power, however, is only part of the story. A bigger factor is that members of Congress and their staff have lost the instinct and ability to legislate. Over the past 30 years, the processes and norms that once allowed Congress to discover what the country wanted and needed have so badly eroded that few members can remember how it’s done. Failure has become the expected and accepted outcome. The instinct to turn any issue into a partisan battle, the lack of urgency, the fixation with and fear of social media, the refusal to accept even modest political risk, the reluctance to engage in serious debate and compromise, and the almost complete abdication of power to party leaders — all of these have become deeply ingrained in the life and culture of the Capitol. And it is all made worse by a self-imposed schedule that has members in Washington only three days a week, 30 weeks a year.

In private conversation, members acknowledge their frustration with the performative, unproductive nature of what they do every day, yet they are reluctant to take the risk or responsibility to change it. As one senator put it, a “learned helplessness” has taken hold that allows them to rationalize the dysfunction and their own irrelevance.

Rep. Ken Buck (R-Colo.) was grumpy. It was an ice-cold morning in January 2020 as he drove into Boulder to attend a field hearing of the House Judiciary antitrust subcommittee, on which he had recently become the ranking Republican. As a charter member of the tea party caucus, Buck was a true believer in free markets and a skeptic of antitrust laws that, in his view, served only to punish firms for their success. He had agreed to come only because the panel’s chair, Rhode Island Democrat David N. Cicilline, had chosen to hold the hearing in his district. “They harassed me to go,” he recalled.

Among the witnesses that day was Kirsten Daru, general counsel of Tile, a maker of tiny electronic devices and apps that allowed consumers to track backpacks, watches and other valuables on their iPhones. Tile’s success had prompted Apple to develop its own tracking app, which was pre-installed on all new iPhones. Before long, Tile had been booted from Apple stores while Tile’s iPhone users began complaining that the app had become difficult to use and install.

Also testifying that day was Patrick Spence, chief executive of Sonos, a pioneer in the markets for streamed music services and smart speakers. Sonos had relied on Google searches to market its products and Amazon to sell them until both giants came out with their own speakers and virtual assistants. Google Home and Amazon Echo not only undercut Sonos’s prices, Spence testified, but they also stole Sonos technology. By the time of the hearing, Google and Amazon were selling a combined 16 million speakers to Sonos’s 6 million. (Amazon founder Jeff Bezos also owns The Post.)

The final witness that day was David Hansson, chief technology officer of Basecamp. Hansson explained that most customers try to find his company’s team management software through Google searches, but were likely to be misdirected to the sites of competitors unless Basecamp agreed to pay lucrative fees to the giant search firm. And when a customer did decide to buy a Basecamp app, Hansson testified, they invariably did so through Google and Apple app stores that took 30 percent off the top as a processing fee under contracts that prevent them from selling at a cheaper price anywhere else.

Buck is a fierce advocate for small business and entrepreneurship, and what he heard that morning radicalized him about the anticompetitive practices of the tech giants — just as Cicilline had hoped. It also gave new energy and purpose to a job he was finding increasingly frustrating and unproductive. “It turned out to be an epiphany for me,” he said.

Nine months later, in October 2020, the antitrust subcommittee released a 449-page report that laid out in devastating detail the ways in which Apple, Amazon, Facebook and Google had come to monopolize their markets and were now using those monopolies to overcharge their customers, squeeze their suppliers, buy up their competitors or drive them out of business. The report was the product of a 16-month effort that involved eight hearings and dozens of roundtables and interviews with 240 industry officials, lawyers and regulators, generating a record of more than 1,800 pages.

Once a staple of political life in the Capitol, that kind of serious committee investigation is rare these days. With extreme partisanship making it unlikely that any legislation will be passed, there’s little incentive to investigate anything that doesn’t serve some partisan purpose. Instead, committees have turned into permanent partisan messaging machines, their hearings into nothing more than political theater.

But to the political odd couple, Cicilline and Buck — one a gay progressive, the other a Christian conservative — reining in Big Tech offered a rare opportunity to reaffirm their committee’s relevance on an issue of keen interest to both parties.

Democrats had watched with alarm as a wave of mergers had left industry after industry in the hands of just a few large companies: metals, grocers, publishers, airlines, finance, rail, telecom, entertainment, retail and tech. This concentration of economic power, in turn, had led to a concentration of political power used to crush unions, depress wages, lay off workers, degrade the environment, defraud consumers and lower taxes for the rich. For Democrats, antitrust had become an issue of economic and social justice.

Republicans, by contrast, had little interest in reviving antitrust or rescuing it from the hands of conservative judges and spineless regulators. But a growing number were concerned about the plight of small businesses that competed against, or did business with, corporate giants. And they were particularly eager to take on a tech sector that for years had not only supported progressive policies and donated lavishly to Democratic candidates, but in their view was using its power as internet gatekeepers to censor conservative views and voices.

There were also legitimate policy reasons for Congress to focus on Big Tech. Ever since the first telephones and computers, economists had recognized that tech markets tended naturally toward monopoly, requiring more government regulation. And more recently, the European Union had begun to move aggressively to protect the rights of tech consumers and challenge the industry’s anticompetitive practices. Reaffirming the primacy of U.S. law in an industry dominated by American firms was an issue of economic nationalism with bipartisan appeal.

It took a marathon, 29-hour session in June 2021 for the full House Judiciary Committee to approve a package of six bills aimed at regulating Big Tech. One would have barred Google, Amazon and Apple from steering or requiring customers to use their products and services rather than those of competitors. Another would have limited how Google and Facebook monetize the data they collect from users to earn revenue from advertisers. And another would have prevented tech giants from buying up nascent competitors, as Facebook did with Instagram and Google with Waze and YouTube. And if those efforts proved insufficient to prevent the tech giants from using their dominance in one market to win dominance in related markets, courts would be authorized to break them up.

Yet while each of those bills were approved by bipartisan majorities that spanned the ideological spectrum from Democrat Pramila Jayapal (Wash.) on the left to Republican Matt Gaetz (Fla.) on the right, Buck and Cicilline were already running into resistance.

In the weeks leading up to the committee markup, Democrats from northern California mounted a campaign to convince their San Francisco colleague, then-Speaker Nancy Pelosi, to delay the vote. Over the years, Pelosi had raised tens of millions of dollars from tech company executives. As significant, one of her closest friends in the House was Rep. Zoe Lofgren (Calif.), a senior Democrat on the Judiciary Committee whose district includes much of Silicon Valley. At Pelosi’s request, Cicilline said he agreed to delay the vote for a week and accepted several changes to the bills proposed by Lofgren and industry executives. But in the end, the speaker stuck by her promise to let the committee do its work — and the bills were approved over bitter objections from Lofgren and several of her California colleagues.

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Republicans were also backing away. Whatever bipartisan good will there was when the investigation was launched in 2019 had evaporated as Democrats moved toward impeaching President Donald Trump later that year. To lead the defense of the president, Republicans had named Jim Jordan as ranking member on the House Judiciary Committee, a partisan pit bull who rarely passes up an opportunity to stoke the blood feud with Democrats. Jordan wasted no time in declaring that the only Republican interest in regulating Big Tech was to stop the censorship of conservative views and voices — an issue that Buck and Cicilline had deliberately sidestepped in crafting their bipartisan package. Over the ensuing months, Republicans who voted for the bills began to back off, telling Buck they had been warned they could lose their seats on the committee if they didn’t.

By the summer of 2021, Pelosi had also come to see the effort as a threat to the Democratic unity she considered vital to the more important task of pushing through the rest of President Biden’s ambitious agenda. Despite her earlier promise to bring the package before the full House, Pelosi and her lieutenants told Cicilline they doubted he and Buck could deliver the necessary Republican votes to make up for the Democrats from tech-heavy districts inclined to vote against it. They were also reluctant to make Democrats take politically risky votes — ones that could invite industry attack ads and hamper fundraising — until the package had been passed in some form by the Senate.

Suddenly, Cicilline and Buck were face to face with the paradox at the root of congressional dysfunction: On most issues, both parties prefer gridlock because both believe it reduces the risk of losing the next election.

One of the original motivations behind the Progressive era antitrust law was to prevent monopolists from using their outsize profits to buy political influence and turn a democracy into a plutocracy. More than a century later, that dynamic was very much in play as the Senate’s Judiciary Committee met early in 2022 to consider how far it would go in regulating Big Tech.

Leading the charge was Amy Klobuchar of Minnesota, the Democratic chair of the antitrust subcommittee who had just published a 600-page book (including 200 pages of footnotes) on this history of antitrust. Klobuchar had recruited to the cause the committee’s ranking Republican, Charles E. Grassley of Iowa, neither a lawyer nor, at age 88, much of a techie, but who channels the prairie populist fear of corporate power. Other co-sponsors ranged from progressive Democrats such as Richard Blumenthal (Conn.) and Cory Booker (N.J.) to hard-right Republicans such as Mike Lee (Utah), Josh Hawley (Mo.) and Ted Cruz (Tex.). As in the House, their reasons for taking on Big Tech rarely overlapped.

In the months leading up to the committee vote, the industry had deployed a small army of lobbyists and industry-funded trade associations and think tanks to derail the antitrust bills in the Senate. Early on, Klobuchar and Grassley agreed to set aside the most controversial of the House bills authorizing judges to break up companies if their self-dealing proved unavoidable. Also set aside was the bill preventing firms from buying start-ups that might one day challenge their dominance. Instead of outright prohibition of certain business practices, regulators and courts would have to show that competitive harms outweighed consumer benefits. The right of customers and competitors to file private antitrust suits was eliminated.

Given the amount of money at stake, however, it soon became clear that no amount of compromise was ever going to satisfy the tech firms, whose lobbyists redoubled their efforts to sow seeds of doubt in the minds of senators who had come out in favor of the bills.

Senators with an interest in privacy and security, for example, received warnings from the likes of James R. Clapper, the former director of national intelligence, and Leon E. Panetta, a former defense secretary, that allowing users to download apps from unapproved sites would make phones and computers vulnerable to hackers and cyberattacks.

Senators who worried about economic competitiveness were pitched on the idea that restraining the growth and profits of the world’s most successful companies would disrupt the innovative ecosystem, undermine patent protections and jeopardize America’s tech dominance.

Conservative Republicans were warned about the broad new powers that would be handed over to liberal-leaning government bureaucrats to micromanage a rapidly changing industry, while progressive Democrats were warned that social media networks and search engines would lose the ability to remove dangerous or offensive content or block disinformation campaigns by right-wing conspiracists and foreign adversaries.

And all senators were made to understand there would be an avalanche of voter backlash once millions of consumers were scared into believing they might lose access to Prime, Google Maps and the Apple app store.

The industry talking points ranged from badly exaggerated to utterly specious, flagrantly mischaracterizing the proposals while ignoring the changes already made to accommodate industry complaints. What all these arguments had in common was that they rested on the premise that regulators and judges were incapable of figuring out whether a business practice would cause significant harm to competition — a premise undermined by more a century of antitrust enforcement. But in offering such arguments, the lobbyists were aware of the old K Street wisdom that those opposing legislation don’t have to prove they are right — all they need to do is create enough doubt to convince risk-averse legislators to put off a decision.

When the 22 members of the full Senate Judiciary Committee met to vote on the trimmed-down package in the first weeks of 2022, the result was tellingly ambiguous. While the two most significant bills were approved by lopsided bipartisan majorities, many of those voting in favor took pains to declare they still had serious concerns with the bills. To win their votes, Klobuchar had to promise to continue working with them on additional changes before the bills were brought to the Senate floor.

That’s not the way it’s supposed to work. Thirty years ago, a committee “markup” was the moment when committee members and staff would sit around a table, roll up their sleeves and work through the politics and the substance so that a sound and politically viable bill could be put before the other members of the Senate, who generally relied on their expertise and recommendations. But in today’s Senate that rarely happens.

One reason is that committees have become unwieldy. Previously, each senator served on only one major and one minor committee — a limitation that allowed them to develop a familiarity with issues, and with each other, and made it more likely that some consensus might be reached. But beginning in the 1990s, Senate leaders began doling out extra assignments to win support from members who saw the added assignments as a way to enhance their stature and raise campaign funds from a wider array of special interest groups. As a result, senators now typically serve on three and sometimes four committees, and any number of subcommittees, making it nearly impossible for them to sit through an entire hearing or a multiday markup, let alone develop much expertise or relationships with other members. The average committee now has a quarter of the entire 100-member Senate as members, with Finance and Commerce at 27 and Appropriations with 29. All of this has had the perverse effect of reducing the power and relevance of committees and the influence of individual members.

And so it was that the Senate Judiciary Committee came to advance major bills regulating one of the country’s most important industries without first coming to agreement on what exactly should be in them. Democrats on the committee were eager to be seen championing an issue of keen interest to young, progressive voters. Republicans were eager to be seen channeling right-wing anger over censorship. And few wanted to disappoint Klobuchar, who had invested much time and political capital in the issue and didn’t take well to being challenged. Absent a policy consensus, the easiest thing for all of them was to kick the can down the road and leave it for later — or, more likely, for party leaders — to make the tough decisions and compromises.

The TV ads began appearing in the spring of 2022 in states with contested Senate races. They were sponsored by front groups such as NetChoice, the America Edge Project, the App Security Project and the Chamber of Progress, along with more traditional business groups. They warned that Congress was about to “break the internet,” end “guaranteed two-day delivery,” prevent you from easily accessing your favorite apps and “make us less safe.” By one estimate, the companies spent $130 million for TV ads to turn the public against regulating Big Tech.

It would be hard to overstate the corrupting effect that such “dark money” has had on the legislative process. Now that the arms race for regulated and reported contributions has played out to a draw, the real competition is for the unlimited sums that billionaires and corporations can funnel into individual House or Senate races through “independent” nonprofits and super PACs that have no obligation to disclose the source of their funds. Significantly, much of that dark money is raised or funneled to campaigns by party leaders who have used it to enhance their own power — including the power to decide which legislation is put to a vote in the House and Senate.

No one doubts that Senate Majority Leader Charles E. Schumer (D-N.Y.) would have been eager to bring the Big Tech bills to the floor — and broker whatever deals were necessary to get them passed — if he had thought it would help Democrats retain their Senate majority in the 2022 election. But by May, there were reports that several Democratic senators in tight races — Maggie Hassan in New Hampshire was mentioned — had asked that any action be put off until after the November election to avoid making enemies of a tech industry willing to spend lavishly to support its friends and oppose its enemies.

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Other Democrats privately questioned the urgency of regulating Big Tech at a time when Biden was still struggling to enact major climate and health-care initiatives, and when the party was on the defensive on such issues as inflation and crime. And more than a few Democrats resented Klobuchar’s insinuations at a closed-door caucus lunch that those with concerns about her bills had allowed themselves to be bought and bullied by the industry.

Schumer channeled his caucus’s ambivalence. While reiterating support for the legislation in public, he continued to actively raise large sums from the industry, privately assuring donors that the bills still lacked the 60 votes to overcome a filibuster. It also did not go unremarked that one of his daughters was a registered lobbyist for Amazon while another worked for Facebook.

Over the spring and summer, Klobuchar had made additional changes to satisfy members’ concerns about privacy, security and content moderation and believed she had the votes of almost all of her Democratic colleagues — including a few who might have privately signaled to Schumer that what they really preferred was not to vote at all.

Less credible was Grassley’s claim of 20 Republican votes for the bills. To win support from several Democratic colleagues, Klobuchar had privately promised to add explicit assurances that platforms would still be allowed to remove false, offensive or dangerous content without running afoul of antitrust law. But Klobuchar had insisted that those concessions be kept secret, knowing that they would be dealbreakers for Grassley and the other Republican sponsors. And Schumer knew it as well.

By late 2022, the only hope for Klobuchar and Cicilline was to get some or all of their package added to the appropriations bill that both chambers would have to pass to fund federal agencies for the balance of the fiscal year and prevent a government shutdown. As Congress has settled into a state of permanent gridlock, these must-pass “omnibus appropriations” or “continuing resolutions” have become pretty much the only vehicles for legislative decision-making. They have also become the primary means by which power had migrated from individual members and committees to the party leaders.

Typically, these must-pass measures are cobbled together behind closed doors after an elaborate dance in which members, committee chairs and well-connected lobbyists all jostle to get their top priorities included. The final horse-trading is done in private meetings and phone calls among the “four corners” — the party leaders from the two chambers — with input from the White House. Then, in the middle of the night, the sprawling package, which can run to thousands of pages and involve trillions of dollars, is released with only hours before members of both the House and Senate must vote it up or down without serious debate or opportunity for amendments. It is only weeks later, when reporters and think tanks have had the time to comb through the fine print, that members — and the public — discover exactly what had been enacted.

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In the end, Klobuchar and Cicilline were able to get two initiatives included in the omnibus appropriation that passed on the final day of the 2022 session. One paved the way for an additional $1.4 billion in funding over the next five years for antitrust enforcers at the Federal Trade Commission and the Justice Department. Another gave state attorneys general the right to try federal antitrust cases in the district courts of their choosing. The rest fell by the wayside. Schumer blamed his Republican counterpart, Mitch McConnell (Ky.), while McConnell pointed the finger at Schumer in what has now become an oft-repeated comical political set-piece that allows everyone to deny responsibility.

Klobuchar and Cicilline headed home for the holidays feeling deeply disappointed by the experience and frustrated by a system incapable of dealing with long-term challenges absent some immediate crisis.

“I was incredibly aggravated,” recalled Cicilline, “not just because of all the time we had invested in it, but because I knew there would be consequences for the economy and our democracy.”

By the time she returned to the Capitol in January of this year, Klobuchar’s outlook had brightened. She took heart that Democrats had retained control of the Senate, and that she would soon be No. 3 on Schumer’s leadership team. And as many of her colleagues have done, she had convinced herself that with patience and perseverance, it was still possible to overcome the partisanship and the special interests.

“Our moment will come,” she predicted.

In the first weeks of the new Congress, Klobuchar reintroduced her bills and organized a hearing around them. Biden gave a garbled and belated shout-out to the cause of reining in Big Tech in his State of the Union address. And without a hint of irony, Schumer reaffirmed his determination to bring legislation to the Senate floor, knowing that nothing was likely to emerge from the now Republican-controlled House.

It was certainly not lost on Schumer, or anyone else in the Capitol, that as Kevin McCarthy (R-Calif.) struggled through 15 rounds of voting to win the speaker’s gavel in January, Jeff Miller, his top fundraiser and closest political confidant, had quietly settled into the speaker’s suite to twist arms and plot strategy. Miller’s prodigious fundraising and ties to McCarthy help explain his remarkably rapid rise to the top ranks of Washington lobbyists. Among his biggest clients the previous year: Amazon and Apple.

In defending Big Tech, Miller will be joined by a few new allies with strong Hill connections. In January, Reggie Babbin, Schumer’s chief counsel, signed on with Akin Gump Strauss Hauer & Feld, the blue-chip law firm and lobbying powerhouse that counts Amazon and Google among its clients. Judd Smith, a top aide to Grassley on the Senate Judiciary staff, has decamped to Amazon Web Services as a lobbyist. And April Jones, a tech policy adviser for Klobuchar, now works for Apple.

McCarthy certainly wasted no time in signaling his intentions. Among his first acts was to deny Buck the chairmanship of the antitrust subcommittee that, because of seniority, would normally have been his. Instead, McCarthy and Jordan, the Judiciary Committee chair, tapped Thomas Massie (R-Ky.), a free-market libertarian who was among the most vocal opponents of the Big Tech bills. Buck learned of his demotion from media reports about a week after his new book, “Crushed: Big Tech’s War on Free Speech,” was published.

“I expected it,” a philosophic Buck said last month. “When you stick your neck out and lose, you will get your head chopped off. ... It’s the way the game is played.”

House Democrats also lost their antitrust champion. After winning his seventh term but losing his subcommittee gavel, Cicilline announced he would be leaving Congress to become president of the Rhode Island Foundation, the largest funder of nonprofits in his state. He joins a growing exodus of serious legislators in recent years who have decided that they have had enough of the congressional gridlock and circus.

“What motivated me to get into politics was to make lives better for the people of Rhode Island,” Cicilline told me before heading back to the state at the end of May. What led him to get out, he said, was the realization that he could do it more effectively somewhere else.