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PRESENTED BY

BY JOHN BRESNAHAN, ANNA PALMER AND JAKE SHERMAN

THE TOP

The House Judiciary Committee is scheduled to hold a markup today on six antitrust bills aimed directly at some of the biggest names in Corporate America: Facebook, Apple, Amazon and Google.

Led by a bipartisan bloc of progressive Democrats and conservatives Republicans on Judiciary, the lawmakers hope to rein in the growing power of Big Tech. It also marks the biggest antitrust effort by Congress in decades, with its target four colossal companies having a combined market value well in excess of $6 trillion.

This is a very important moment in deciphering Silicon Valley’s politics in Washington. It will mark the true dividing line between the allies and foes of the so-called FAANG companies. The markup will be just one event on Capitol Hill on a busy Wednesday, but the tech industry and Wall Street will be watching to see how this all plays out — and which member says what during the markup.

They’ll have to wait a while; Wednesday’s markup may be a long one. With a 10 a.m. start time, we’ve been warned that it may run until midnight. There’s bound to be a number of amendments by opponents of these bills seeking to water down the legislation.

What’s the future for these bills? Even if approved by the Judiciary Committee, it’s still unclear whether the legislation can make it through the full House. And the odds are longer in the Senate, where it’s easier for opponents to block such initiatives from advancing.  

The tech giants are pushing back hard against these new bills, arguing in public statements — or via tech-industry groups they help fund — that the proposed legislation would require them to break up or stop offering services that customers have come to demand. The companies also cautioned that the proposals could harm the U.S. economy and tech industry just as the country is rebounding from the Covid-19 pandemic.

However, the leaders of the bipartisan Judiciary faction say their approach is the only way to protect consumers from these companies, who dominate online sales and services. The lawmakers also say they’ve got the votes to push the legislation through the Judiciary panel, which would force Speaker Nancy Pelosi (D-Calif.) and other top Democrats to decide whether to bring the legislation to the floor at some point later this year.

“The reality is these very powerful monopolies are going to do everything they can to maintain their monopoly power and resist any reforms that bring real competition into the digital marketplace. That’s one of the reasons Congress has failed to act for decades,” Rep. David Cicilline (D-R.I.), chair of the antitrust subcommittee on Judiciary, told us in an interview Tuesday night. 

Cicilline added: “This was always going to be a difficult challenge. But I’m very proud of the fact that what we produced are bipartisan reforms that will make a real difference in the lives of the American people, make better experiences for consumers and small business owners, entrepreneurs and innovators.”

This whole antitrust effort is causing serious angst among House members in both parties, both among the rank-and-file and leadership. House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (Ohio), the top Republican on Judiciary, are both opposed to the package. The New Democrat Coalition and other pro-business Democrats are raising objections to the initiatives with their leadership too, Democratic aides said.

Cicilline, though, believes his leadership will eventually green-light the package for the House floor. “That’s the plan. Yeah, of course,” Cicilline said. “We’re marking it up. That’s the first step. And then my expectation is that whenever it’s appropriate on the calendar, we’ll go forward.”

Several of the bills being marked up on Wednesday are modest in scope. One would boost the fees paid for companies filing mergers, while also increasing antitrust enforcement funding for federal agencies. Another bill from Cicilline and Reps. Ken Buck (R-Colo.), Dan Bishop (R-N.C.), Burgess Owens (R-Utah) and Joe Neguse (D-Colo.), would allow state attorney generals to bring antitrust cases in the courts they file in, rather than being forced to change venues.

However, another bill, the “American Choice and Innovation Online Act,” would bar “covered platforms” from favoring their own goods or services over competitors. Only the biggest tech companies, worth more than $600 billion or having more than 50 million monthly users, would be considered “covered platforms.” It would impact Apple most directly, especially Apple Music, although Google and Facebook would also be hit. Cicilline, Buck, House Judiciary Committee Chair Jerry Nadler (D-N.Y.) and Rep. Lance Gooden (R-Texas) are the lead sponsors.

A fourth proposal — perhaps the most controversial — is called the “Ending Platform Monopolies Act.” This potentially could have huge repercussions on Amazon, although Google and Apple would be impacted as well. This bill is being sponsored by Rep. Pramila Jayapal (D-Wash.), as well as Cicilline, Buck, Nadler and Gooden.

This legislation would bar a “covered platform” from owning a business that uses that same platform to sell its product. Also prohibited would be requiring a user to “purchase or utilize” a product or service from the secondary business in order to use the platform. For instance, Amazon could be forced to sell its logistics operation — itself a huge entity — if this proposal were to become law because it ties use of Fulfillment to preferential treatment for sellers on its platform. 

The remaining two bills would bar mergers by Big Tech companies unless they can show the target company isn’t a competitor, a new legal standard, as well as allowing users to transfer their data from one platform to another. This is aimed at Facebook, since it would let users move their profiles quickly and safely, something that’s impossible now.

The Coverage

NYT 

→ “Tech Giants, Fearful of Proposals to Curb Them, Blitz Washington With Lobbying,” by Cecilia Kang, David McCabe and Ken Vogel

CNBC

→ “Google, Amazon accuse lawmakers of harming small businesses as Big Tech antitrust bills move through Congress,” by Lauren Feiner

Open Secrets

→ “Dark money groups battle bipartisan efforts to limit big-tech,” by Anna Massoglia and Julia Forrest

Politico

→ “GOP riven by infighting over Big Tech crackdown,” by Mel Zanona, Olivia Beavers and Emily Birnbaum

UPDATE

Where we are on infrastructure, Day 2,000,000

Counselor to the Plresident Steve Ricchetti, National Economic Council Director Brian Deese and Legislative Affairs Director Louisa Terrell — pictured above — will be back on Capitol Hill today at 1 p.m. to meet with the bipartisan group of senators looking to cut an infrastructure deal. Patience is wearing thin — really thin — at 1600 Pennsylvania. 

And the entire bipartisan infrastructure back and forth can be boiled down to this:

→ The biggest outstanding issue is pay fors. 

→ The White House believes that Republicans are “all over the place” when it comes to how to pay for the legislation. Multiple administration officials in and around the negotiations told us last night that the GOP wants to count already passed Covid relief money as new spending. The White House won’t go for this.

→ The GOP says the White House is not open to enough on the pay-for side. For example, the administration took tax-free corporate bonds off the table.

→ The two sides disagree vehemently on the size and scope of the tax enforcement portion. Meaning how much could be raised by giving the IRS additional funding, and how long that would take to happen.

→ The clock is ticking, and some White House officials see today as a deadline of sorts to make progress toward agreement. If the two sides can’t get much closer to an agreement today, they’re going to begin to seriously wonder about the efficacy of these talks. The White House has said it won’t let these negotiations go on forever. According to our conversations with the Biden administration last night, forever seems to be coming soon.

→ Here’s one other element: President Joe Biden is going to want to have an in-person meeting to see if he can bridge the divide between the two sides. That should happen this week.

WHAT THE WORD?

Select committee: Will Pelosi create one, or not?

House Democratic steering and leadership are now meeting in person, and some top reporters believed they got news out of one such gathering yesterday — that Speaker Nancy Pelosi would announce this week that she’s creating a select committee to investigate the Jan. 6 insurrection.

CNN’s Manu Raju reported it. As did the WSJ’s Lindsay Wise. Like we said, these are top reporters (Note: Manu Raju is our former colleague and good friend.)

But Drew Hammill, a top Pelosi adviser, said the California Democrat would only “announce WHETHER she will create a select committee THIS WEEK,” but did not say she had already settled on a path forward.

Truth be told, Pelosi has been heading in the direction of a select committee for some time. We’ve written this repeatedly, as have other media outlets. Rep. Bennie Thompson (D-Miss.), chair of the Homeland Security Committee, is seen by most Democrats and aides to be the logical choice for this post. Thompson helped negotiate the bipartisan Jan. 6 commission bill that the House approved, and he’s seen as someone who could run the probe effectively.

However, this is a Pelosi decision, and she alone will determine to go public with the news once she’s made her call.

“No, I did not make that announcement. Somebody put out a false statement,” Pelosi told reporters Tuesday night.

So we’ll stay tuned, we expect a lot more on this issue soon.

STATE OF THE ART

That didn’t take long: Dems fundraise off election bill filibuster 

MOMENTS

9:50 a.m.: President Joe Biden and Vice President Kamala Harris will receive their intelligence briefing. 

10:15 a.m.: House Democratic Caucus Chair Hakeem Jeffries and Vice Chair Pete Aguilar will hold a news conference after the party meeting.

10:20 a.m.: House Minority Leader Kevin McCarthy (R-Calif.) will hold a news conference about holding China accountable for Covid-19. 

11 a.m.: Biden will speak at the late Sen. John Warner’s (R-Va.) funeral at the National Cathedral. 

12:45 p.m.: Biden will have lunch with Harris.  … Jen Psaki will brief reporters.

2:15 p.m.: Biden and Attorney General Merrick Garland will hold a meeting on keeping cities and neighborhoods safe. Participants include:

New Jersey Attorney General Gurbir S. Grewal

Rapid City, S.D. Mayor Steve Allender

Baltimore Mayor Brandon M. Scott

Miami-Dade County Mayor Daniella Levine Cava

Baton Rouge Police Chief Murphy J. Paul, Jr.

DeVone Boggan, founder and CEO of Advance Peace

Eddie Bocanegra, Senior Director at READI Chicago

3:30 p.m.: Biden and Garland will speak about gun crime prevention.

PAPER OF RECORD — WE ARE EVERYWHERE

NYT on voting filibuster and N.Y.C. mayor race

CLIP FILE

Media Moves: Melanie Zanona is going to CNN to be a Capitol Hill reporter. She was the ace House Republican beat writer for Politico.

NYT

→ “Sanders signals openness to adjusting SALT cap to retain key votes as he maneuvers to pass Biden’s agenda,” by Emily Cochrane

→ “U.S. to Allow Some Asylum Seekers Rejected Under Trump to Reopen Cases,” by Eileen Sullivan: “The Biden administration is broadening the pool of migrants who will be allowed to enter the United States to make asylum claims, in the latest effort to chip away at the restrictive immigration policies put in place under President Donald J. Trump.

“The Department of Homeland Security said on Tuesday that on Wednesday it would start considering migrants whose cases were terminated under a Trump-era program that gave border officials the authority to send asylum seekers back to Mexico to wait for their cases to make it through the clogged American immigration system. The change could affect tens of thousands of people.”

→ “Garland Says Watchdog Is Best Positioned to Review Trump-Era Justice Dept., Not Him,” by Katie Benner

→ “Saudi Operatives Who Killed Khashoggi Received Paramilitary Training in U.S.,” by Mark Mazzetti, Julian Barnes and Michael LaForgia

WaPo

→ “For military’s top man, navigating the Trump-Biden transition is his biggest test yet,” by Missy Ryan

→ “Democrats signal a shift toward accepting voter ID laws,” by Cleve Wootson Jr. and Mike DeBonis

→ “153 people resig ned or were fired from a Texas hospital system after refusing to get vaccinated,” by Dan Diamond

NPR

→ "The White House Announces New Steps To Try To Curb Surging Gun Violence,” by Alana Wise

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