Jul 10, 2021
On July 7, The Capitol Forum hosted a conference call Seth Bloom, President and Founder of Bloom Strategic Counsel, to discuss the legislative prospects for bills to crack down on Big Tech, shift the burden of proof in merger cases, and implement other reforms to U.S. antitrust law. The complete transcript, which has been modified slightly for accuracy, can be found below.
MR. TEDDY DOWNEY: Good morning, everyone. Thanks for joining us today for The Capitol Forum’s Conference Call on the Prospects for Antitrust Legislation in Congress. I’m Teddy Downey, Executive Editor here at The Capitol Forum. And I’m joined today by Seth Bloom, Founder and President of Bloom Strategic Counsel and former General Counsel for the Senate Antitrust Subcommittee.
A quick note before we get underway. The first 20 minutes or so of the call will be an interview with Seth and then we’ll move into a Q&A format where we will entertain questions from the audience. If you do have questions for us, please email them to email@example.com. Thanks so much for joining us today, Seth.
MR. SETH BLOOM: Well, thank you very much for the invitation. Look forward to it.
MR. TEDDY DOWNEY: So before we get started, I know you’re going to be giving us your expert legislative outlook, but I wanted to let you disclose a few of your clients that have a stake in this legislation just so our listeners can have that context.
MR. SETH BLOOM: Sure. So, first of all, before doing that, everything I say today is going to be my own views. It does not represent any of my clients. It does not represent their views. And I do represent Apple and Amazon. So I’m not going to be talking specifically about those clients. But as I say, just to reemphasize the point, these are all my own views and do not represent the views of any of my clients.
MR. TEDDY DOWNEY: Okay, perfect. And I think to get things off, it would be great if you could walk us through the five bills that are moving through Congress right now.
MR. SETH BLOOM: I think there’s six.
MR. TEDDY DOWNEY: Okay, six. I was going to talk about the five that are moving in the package, but we can just six.
MR. SETH BLOOM: Well, so there’s two sort of noncontroversial bills and four more controversial bills, and some are highly controversial. They all passed out of the House Judiciary Committee about two weeks ago, I think starting today, in an unprecedented marathon markup, which began in the morning that Wednesday, two weeks ago, at 10:30 in the morning. There was some small recess for votes in the afternoon. And then that markup continued until 5:00 in the afternoon. I’m sorry, 5:00 in the morning, the next day, at which time five bills were passed. Then they recessed and they started up again at 11:00a.m. on Thursday and finally finished up altogether at 3:00 p.m. on Thursday, passing the last bill. So those are the six bills that I’m talking about that are moving.
So I say two of them are non-controversial. One of them has actually already passed the Senate, which is the bill that would raise filing fees for large mergers and acquisitions in order to fund the agencies, give them more funds. That passed the House in the 29 to 12 vote in the committee. But it has already passed the Senate unanimously by unanimous consent. So one would expect it to get enacted into law.
And then another one is a bill that would give would say when states bring antitrust cases—state AGs—they cannot be removed to a multi-district federal jurisdiction outside of the state. So it’s sort of changing the procedural law there. That bill is are also pretty popular. It passed the committee in a 34 to 7 vote, the House Judiciary Committee. And it’s really especially popular with Republicans. They sort of see it as a states’ rights saying we don’t want our state attorneys general to have action to get it moved to another jurisdiction. But it’s got also widespread Democratic support. That bill has not yet been introduced and voted on in the Senate, in the Senate Judiciary Committee. So anyway, I think that bill’s also on its road to passage.
The remaining four are more controversial. And in order of least controversial to most controversial, the first one is known as the Access Act, which actually has already been introduced in the Senate with no action yet. But in the House, it’s a bill that would provide for interoperability among platforms and data, data control people being able to move their data, data portability. That’s had a 25 to 9 vote. So that’s pretty popular. And I think most folks in Congress believe interoperability and data portability. I think the devil’s in the details. That one’s not as easy a path to passage as the first two I mentioned, but it wouldn’t surprise me if it did ultimately get enacted into law.
Then the rubber hits the road really with the next three bills I’m going to describe. The first one I’m going to describe—and again, all these three bills passed out of the House Judiciary Committee two weeks ago—is a Platform Competition and Opportunity Act. This bill was sponsored on the Democratic side by Representative Jeffries’s. This bill passed out of committee 22 to 18. And basically what it would say, for a covered platform, it would essentially—although the bill’s
sponsors would say it doesn’t go this far—but it essentially bans all acquisitions like these covered platforms. Because the bill says those acquisitions are anti-competitive unless the acquiring party can prove by clear and convincing evidence that there’s no competition between the company being acquired and the acquiring party or that the acquiring party is not acquiring a nascent or potential competitor and doesn’t enhance the acquiring party’s market position.
To prove those by clear and convincing evidence, I think is really difficult. So the sponsors of the bill say it’s not a ban on mergers. But as a practical matter, which of these platforms is going to want to undertake an acquisition like that if they’re going to have to prove by clear and convincing evidence that it doesn’t do these things. I think it’s really going to put a damper, if not totally eliminate, the possibility of acquisitions.
MR. TEDDY DOWNEY: But wouldn’t conglomerate mergers still be okay?
MR. SETH BLOOM: I guess if you can prove by clear and convincing evidence that it’s a different business and it’s not a competitor of yours. Sure. So if a covered platform acquired McDonald’s, it doesn’t become competition for them. But I think it’s going to still be the burden on them. So, yeah, there’s a lot more mergers that might be able to get through. True. But anything that at all sort of sounds in competition or raises any competition concerns would have a very difficult time for getting through. At this point, I should stop and say with all these three bills, they only affect what are known as covered platforms as I said. And covered platforms are—so they’re not—this is sort of something new in antitrust. In antitrust in general, we see bills of general applicability.
Obviously, the Sherman Act, the Clayton Act, FTC Act, amendments there too are all general applicability. They don’t single out any of the area of the economy. These bills say that you have to be a covered platform, which means you have $600 million in annual revenues or market cap, which means you have 100 million monthly users, general users, or 100,000 business users. And you’re considered to be a critical trading partner. Most people think that these bills only would impact the four companies that the House Judiciary Committee investigated and maybe Microsoft. It’s not clear. People debate that.
But beyond that, these bills are just singling out those companies, which is very unusual in antitrust legislation. And I think it raises serious constitutional concerns, such as under the Bill of Attainer clause, which I’m sure will be litigated if any of these bills actually pass. But I just want to make that point though. All these bills I’m now discussing, the one I just discussed and the next two, only apply to those covered platforms. So the next one, I’m going to move to the next one, Teddy, if that’s okay.
MR. TEDDY DOWNEY: Yeah, I mean, we can come back to Supreme Court later if we want to.
MR. SETH BLOOM: Sure we can. So the next one I want to discuss is the American Choice Innovation Act, which Representative Cicilline, the Chair of the Antitrust Subcommittee, introduced. And that passed out of the Judiciary Committee on a 24 to 20 vote. So it basically would prohibit self-preferencing or discrimination against the websites that compete with the covered platform. And I think the company that has the most to worry about this is Google, because a lot of their business model today is based on that.
And the interesting thing about this bill, if you violate it had quite a severe civil monetary penalty, which traditionally the Justice Department and the FTC don’t get civil monetary penalties in antitrust cases. But in this one, the civil penalty is 15 percent of the U.S. revenue of the covered platform or 30 percent of its U.S. revenue in the line of business that’s affected by this conduct. So if you’re talking about 15 percent, that’s a huge number. That not profits. It’s revenue. And all of the remedies, the restitution and divestiture is possible. So it’s quite a strong bill, quite a strong bill. And as I indicated, the penalties are quite strong.
And the final bill I want to discuss is the one that passed on the closest vote, which was Representative Jayapal’s bill, ending platform monopoly in fact, it passed on a vote of 21 to 20, as close as it could be. And basically, this bill would prohibit covered platforms from having businesses that create a conflict of interest, prohibit covered platforms from posting content that compete with their own content, and also has this civil penalty of 15 percent of revenues, 30 percent on the line of business. And it has provisions for divestitures. So that’s the probably most radical bill I’d say. Although, Cicilline’s bill was pretty radical too. So that’s my quick summary of the six bills.
MR. TEDDY DOWNEY: Okay, great. I sort of don’t see much of a difference between the Jayapal and Cicilline bill. They achieve effectively the same thing. I mean, prohibiting self-propagating discrimination is sort of another way of saying prohibiting conflicts of interest. I mean, conflicts of interest is obviously a broader term.
MR. SETH BLOOM: That’s right.
MR. TEDDY DOWNEY: But I would argue that the bills prohibit self-preferencing, discrimination or conflicts of interest are the most significant and the ones that will get at the conduct that there are so many complaints about from small businesses, from competitors, from publishers and people who are opposing the platforms. Let’s focus on these first. They passed pretty closely. What do you think the prospects are in the House and the Senate for that bill? And you say it’s the most controversial, but it’s also the most significant, right? The most on the line there.
MR. SETH BLOOM: That’s another way of saying it, sure. But no, in terms of the prospects for these bills, I’m a little bit of a skeptic. First of all, they passed on a very tight vote in the committee. The question is will they be able to pass on the House floor? Nobody knows. But we have significant—you know, ordinarily one would expect, well, most Democrats, this is a strong antitrust bill. This will be appealing to Democrats. We have pretty significant Democratic opposition to these bills coming from, first of all, the California delegation, which some of these companies are headquartered in, also from elements of the new Democrats, the moderate Democrats. We recently had a statement from the majority leader, Steny Hoyer, saying that he wouldn’t bring these bills to the floor because not many members of his caucus opposes it. So that’s a pretty strong statement. Pelosi seems a little bit warmer to them, but it’s hard to say.
So the question will be, especially for these two bills that you were just mentioning, would they bring a bill to the floor if they’re not sure they’re going to win? Would they take a loss? Pelosi typically doesn’t like to take a loss. I think if there’s a doubt that these bills can get majority support on the House floor, they’re not going to be brought to the House floor. And right now, I think there’s a doubt now, a pretty significant doubt.
Now, the sponsors of the bill will say, well, we’ve got significant Republican support. And by the way, I can just address this in general, not just talking about these bills. We’re in a unique moment for antitrust where traditionally Republicans, the party of laissez faire, the party that’s opposed to government intervention in private markets, would be opposed to strong antitrust deals. But we see that there are significant elements of the Republican Party. But the reason they do this, I believe, is not because they’re such big believers in antitrust, with maybe a couple of exceptions. But they have this theory, which the companies strongly deny, that these platforms discriminate against conservative voices. And Facebook took down Trump. Twitter took down Trump. They say the people trying to express conservative views are suppressed. This basically enrages people. People like Matt Gaetz, who is a really strong right wing Republican, was strongly in favor of these bills. What a surprise. Ken Buck, who’s a very conservative Republican, sponsored many of these bills. We saw other Republicans support these bills.
So the question is are there enough of these conservative Republicans who are concerned about what they perceive as anti-conservative bias by the platforms? Are there enough of them to overcome the Democrats who will vote against it? And I think we don’t have answer to that, but it’s a question. It’s going to be very close. Of course, the Democrats only have a four vote majority in the House. You say they’re going to get more than four votes opposing these bills, especially these controversial ones – not the first two ones, but these controversial ones. But the question is say they have ten votes opposing it, are there going to be six Republicans supporting it or more? We don’t know. But that’s going to be where this turns. But I do think those two most controversial
bills we’ve been discussing will have a really hard time passing the House floor. So, as I say, I’m a skeptic about it.
MR. TEDDY DOWNEY: If you had bet though, Pelosi, let’s say she wants to pass the package. Let’s jettison the Jayapal bill. I mean, effectively you’d have the same thing with the Cicilline bill anyway.
MR. SETH BLOOM: Sure.
MR. TEDDY DOWNEY: Let’s say you really don’t think you could get 20 Republicans if you lose 20-ish Democrats? I mean, it just seems like the Republicans, there are enough onboard with this that if Pelosi – and Hoyer is one thing. Pelosi is another. Obviously, more important. She seems to be in favor of the bill and supporting Cicilline. It strikes me that if Pelosi wants this to happen, she can keep enough Democrats in line and find enough Republicans to pass it. I’m not saying it’s a done deal by any stretch of the imagination, but certainly doable given the things that she’s passed historically that are very politically unpopular. This seems to have some bipartisan appeal. It’s got to the Republican committee co-chair, I mean, ranking member. It just seems like it seems doable. I’d like to get your push back. I mean, you’re saying you don’t know. But push comes to shove, this this could probably pass the House if Pelosi wants to make it happen.
MR. SETH BLOOM: I’m not sure. It depends. Well, it depends how much personal effort she wants to put into whipping her members, how much you wants to put on the line. I think the first two of those four controversial ones that I mentioned, I think probably both the access and the one about acquisitions, although that’s a really strong bill the acquisition – okay, I’ll go with the access act. I’ll say that one.
MR. TEDDY DOWNEY: I’m going to also play devil’s advocate again. The tech platforms are okay with interoperability.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: I think there’s been an indication it’s not going to do anything. Can we agree that probably if the tech platforms are okay with it, it’s not really a meaningful bill.
MR. SETH BLOOM: No, I don’t agree with that. I don’t agree with that.
MR. TEDDY DOWNEY: Okay. Well, if the point of these bills is to take on tech platforms’ dominance and the tech platforms are okay with it, it’s not going to stop them from being dominant.
MR. SETH BLOOM: I think Facebook would have some real concerns with the interoperability bill.
MR. TEDDY DOWNEY: Yeah, I think, to your point, the devil’s in the details. But if that’s the only bill that’s moving and the tech platforms kind of get behind it and they tweak the language enough that they can live with it, that’s the hardest to implement, the hardest to get it right.
MR. SETH BLOOM: I’m not going to go any further on that, because I represent some tech platforms.
MR. TEDDY DOWNEY: All right. Well, putting that aside, I think it’s interesting that you say the merger, that the prohibition on nascent competitive acquisitions, that you think that could pass.
MR. SETH BLOOM: Compared to the other two. I’m not sure, but I was just responding to your Pelosi can get it done if she wants to. Maybe she could get that one done. I don’t know. But I’m not sure. I don’t want to make that prediction because it is a really—I think it could probably pass if it got reformed. In its current form, probably not. Because I do think it just stops all acquisitions. And they did accept an amendment in the committee that acquisitions of under $50 million value were exempt.
But it’s a business model. And this is something I think that people who advocate for this approach, it’s a business model of many innovations—and I probably don’t have to tell this audience that—to start a business with the hope that it gets bought out by one of the large companies. And you could say, oh, my God. But is that so bad? I think it’s not. I think it could be pro-competition. It could encourage innovation. Would we have seen all the start-ups that we’ve seen if they didn’t have this available to them? And is it satisfactory to them to say, oh, $50 million, well, maybe they think they’re going to grow bigger than that?
MR. TEDDY DOWNEY: As a small business owner, I think it’s really easy to refute this. One, other people can buy you. And two, you can also make more money if you’re not worried about the threat of someone crushing you. Then you have more opportunity, you can grow – I mean, there are those two sides to this.
MR. SETH BLOOM: There are two sides.
MR. TEDDY DOWNEY: So, I get your point. It’s like historically this has been fine. They’re saying it’s not. Let’s put it another way. Even if this gets watered down a little bit, do you think it’s kind of consensus that there’s pretty good chances that some new restrictions on big tech acquisitions of nascent competitors can pass into law?
MR. SETH BLOOM: See, I’m not going to say a consensus, but I think the Klobuchar approach is better because it’s not a clear and convincing evidence standard. It simply flips the burden of proof, say if you’re doing an acquisition of a certain size or a 50 percent market share. So maybe that doesn’t address nascent so much. But then the burden of proof is on you by a preponderance of the evidence to prove your merger is not anti-competitive rather than the burden be on the government. By the way, another thing about clear and convincing evidence, you’re basically guilty until proven innocent and you have to prove your innocence by clear and convincing evidence. To me, that’s just sort of outside the American legal process.
MR. TEDDY DOWNEY: It’s a little bit more akin to what they have in Europe.
MR. SETH BLOOM: Maybe. But I just think that’s going to be a hard one for many legislators to swallow once they sort of read it and understand it. So of the controversial three, maybe it’s the least controversial, but I don’t see a clear road to passage for that one either.
MR. TEDDY DOWNEY: Now, let’s talk about the Senate. Because we can agree to this. You think it’s unclear – oh, actually, can we stay on Pelosi for a second?
MR. SETH BLOOM: Sure.
MR. TEDDY DOWNEY: I’ve asked this in a lot of the interviews previously. Speaker Pelosi seems to have had a real turning point on the issue of antitrust legislation. And it can be pretty specifically pointed to when Facebook refused to take down doctored videos of her.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: I mean, that’s been widely reported. How significant of a shift was that for her? And how important is her concern over tech platforms, control over speech, to this passing the House? I mean, to me it seems like the number one most important thing to say she’s had personal experience dealing with a company with a lot of power not going her way. And I think this is also indicative of where the Republicans are. They may be wrong in that—it seems like Republicans are still pretty popular on Facebook. They may be wrong that they’re disproportionately discriminated against, but Facebook does have this power overseeing. I don’t think anyone’s going to debate that.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: And they don’t like it. It seems like a perfectly fair concern. If you peel back from, well, conservative voices are being shut out. Talk a little bit about Pelosi and then sort of that position for the Republicans.
MR. SETH BLOOM: So I don’t have any inside knowledge of Pelosi and her thinking, but I think what you say makes a lot of sense. I don’t doubt that was a turning point. It is the analog for Pelosi to the Republicans like Matt Gaetz – I hate to say that she’s in the same boat as Matt Gaetz—but like Matt Gaetz feeling that their supporters are being censored and Donald Trump is being censored. So I think that’s right. So it’s not because Pelosi is a big actual hardliner, but it’s because she sees what Facebook did to her.
But here’s the thing. That suggests to me—well, now that maybe I’m getting into policy—that suggests to me you try to solve the problem. You deal with content moderation or maybe Section 230, whatever. But some of these antitrust solutions, or what they consider to be solutions, they sort of—well, to me, they go too far and they’re not really related to that problem. So anyway, that’s what I think.
MR. TEDDY DOWNEY: Well, I think to be fair to the people who have pushed this idea and who are now in significant positions of power, including Chair of the FTC, the argument is that there’s no policing of the behavior that will work and that the real problem is structural and that no company should have this much power.
MR. SETH BLOOM: I agree. By the way, under existing antitrust laws, maybe you need to worry about that, just enforcing existing antitrust laws at the Justice Department and many states, 48 states, are doing to Google right now. So there doesn’t seem to be any, well, we’ll see how those cases turn out.
MR. TEDDY DOWNEY: Yeah.
MR. SETH BLOOM: They seem to be strong cases to me though. And there doesn’t seem to be any lack of antitrust authority to go after these companies if they want to, if they find antitrust violations. All right.
MR. TEDDY DOWNEY: It does appear to be a little bit of an all of the above strategy, right? They’re going to go in courts. They’re going to go with rulemaking. And they’re going to go with legislation. We’re focused a little bit more on legislation. If we have time. We’ll get to we’ll get to the rules and court cases.
MR. SETH BLOOM: That’s fine.
MR. TEDDY DOWNEY: Let’s talk about the Senate. Because I think that if you ask me, that’s where these things are going to go to die.
MR. SETH BLOOM: To die, yeah
MR. TEDDY DOWNEY: Mainly because I think the Senate has spent less time as an institution digging into the details and getting familiar and comfortable with all these issues. And it’s not to say that they haven’t been bombarded by all sides on this. It just seems to be, I don’t want to call it more corruptible, but more susceptible to going slow, taking money, dragging things out. I have a hard time seeing how the Democrats get to leadership and the Republicans get the 60 votes. I’m not saying it can’t. And I guess I’ll start with this. Is it fair to look at the Lina Khan vote and say, hey, there’s 70 plus votes for all of this aggressive antitrust legislation in the Senate? I mean, if there were 70 plus votes for Lina Khan, there are 70 plus votes for these bills.
MR. SETH BLOOM: No, that’s totally the wrong way to think. I don’t agree with that. First of all, when Lina Khan was voted on, nobody—I think pretty much nobody thought she’d be the Chair. If the vote had been for her as Chair, it would have been a very different vote. Now, I’m not saying she wouldn’t have gotten confirmed. So you wouldn’t see 70 plus. It might have been a much more partisan vote with barely over 50 or 55. So there’s that.
No, I mean, I think you identify the crucial thing in the Senate. And why I think whatever happens in the House—and we sort of debated that—most of these bills, with the exception of the first two, the filing fee and the venue provision for state access[?], with the exception of those two, they’re going to die in the Senate. My prediction. You have to get 60 votes, as you pointed out. Right now, maybe I can count to three. Well, first of all, assuming all 50 Democrats would vote for the stuff—which I’m not going to make the assumption—California Democrats, other moderate Democrats, are they going to vote for this? But just for the purposes of argument, assuming that she can get all 50 Democrats to vote for it. You still need 10 Republicans. How do you get to 10? Right now, maybe you have three. You certainly have Hawley. He’s sort of to the left of Klobuchar. He may be to the left of the Cicilline. But then probably you have Ted Cruz and maybe have Marsha Blackburn. Those are the three that I count, but that’s three, not 10. And I don’t see how you get to 10. You pick up another one or two. It’s not 10.
MR. TEDDY DOWNEY: Well, couldn’t you look to the Linda Khan vote?
MR. SETH BLOOM: No. Again, I just went through that.
MR. TEDDY DOWNEY: I kno
MR. SETH BLOOM: Well, there’s more than 10. It was like twenty-four.
MR. TEDDY DOWNEY: That’s where you would your ten out of that bunch.
MR. SETH BLOOM: Out of that bunch. But it’s very different to vote to confirm a commissioner on the FTC – not a chair, but a commissioner—than voting for legislation that radically alters business conduct and practices. And also, I didn’t mention this. One of these bills called for the FTC to establish a bureau of digital marketing. That’s the Cicilline bill. That is like red meat to Republicans. We need more regulatory authority in the FTC. I don’t think Republicans are going to support that kind of thing.
MR. TEDDY DOWNEY: Well, they voted for more money.
MR. SETH BLOOM: They did. And money is different.
MR. TEDDY DOWNEY: Yeah, I know. I think it’s fair to say that new regulatory bodies are set on arrival.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: But that’s not what most of these bills—that’s not the crux of these bills. Look, I’m not I’m not convinced either that the Lina Khan vote is a good proxy, especially to the point that you made that they didn’t know that she was going to be Chair. That said, she is the most prominent figure in the antimonopoly movement. She has made very clear the concerns with big tech. These people who knew what they were voting for, whether it was for Chair or—it sends a message. I think it’s definitely an uphill climb. I just don’t think it’s out of the realm of possibility that you could get 60 votes. I mean, she got 70 plus. You need half those people. I can see it happening. Now, it’s not going to look like what the bills that passed out of committee are going to look like.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: But either something on discrimination—I think the thing that also I’m curious to get your thoughts are there are a lot of big Republican companies, sort of public Republican kind of associated companies, that are pushing for big tax scrutiny. Among them, obviously, Rupert Murdoch and his media companies. You’ve got companies like Oracle and other big tech companies that have been critical of Google, Amazon, Facebook, Apple. You’ve got companies like Spotify and Yelp. I mean, you have a lot of corporate interests that have influence
with Republicans. I just want to push back. I mean, why are you so confident additionally that you can—given that there is a lot of business on the other side of this argument, not to mention all the small businesses that complain about Apple and Amazon and Google, that they couldn’t get something done?
MR. SETH BLOOM: Well, I hear what you’re saying. I just think it’s a tough pill for a lot of Republicans to swallow. I think Rupert Murdoch is probably your strongest voice there. I mean, are Republicans that persuaded by other smaller companies you mentioned—not that they’re small, but smaller. So okay, I mean, I hear what you say. Obviously, it’s not a metaphysical certainty that you can never get to 10. But again, I think it’s – I’ll go with it’s quite unlikely.
Now, again, getting to 10 assumes that all 50 Democrats are going to vote for this bill—which I’m not at all convinced of– or maybe it’s 12, maybe it’s 14 or something like that. And if the bills are watered down, like the merger bill, watered down in a way that I described it to resemble more Klobuchar’s proposal—although Klobuchar’s proposal has not gotten a single Republican supporter. And if the bills are watered down, maybe you could see that, taking out the 15 percent of the revenue penalty, things like that.
I think, okay, let me put it to you this way. For anything to pass the Senate, they’re going to have to be significantly marked up. I think there’s no question about that. As written, these House bills, with the exception of the first two non-controversial ones, and as written, these bills cannot get ten votes, ten Republican votes. I really do believe that, in spite of what you just said.
MR. TEDDY DOWNEY: I want to get your thoughts on another point which struck me is if the advocates for taking on big tech coalesce around one thing that they really want, as opposed to throwing five things and trying to see what sticks, do you think that would be a better strategy, have a better chance of getting it done? Again, my point is that the only thing that really matters is the discrimination bill. If they coalesce around that, do you think that moves the needle a little bit in favor of getting something done, even though it’s the most controversial kind of bill? I mean, that does make strategic sense to me. I think the way they’re doing it now is just not how the Senate works. It just doesn’t really seem like it will fly. They’ll just delay. Maybe they’ll pass the lesser bill or bills. But you’re not going to get the toughest thing which is to try to pass them all.
MR. SETH BLOOM: I can’t debate. I can’t debate what you say there [inaudible 35:40]
MR. TEDDY DOWNEY: Yeah, I think that’s one of the things to watch. What do you think else would need to happen for this to have better prospects or worse prospects? Who are the key Senators that you’re watching? You mentioned a few now. No one has really taken up the mantle
like Ken Buck to really push this as a necessary and Republican issue. Certainly, you have Hawley out there. But he’s a little bit on an island.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: Who else with a lot of sway in the party, on the Republican side, are you watching to see how they take this issue off or get involved? And also on the Democratic side.
MR. SETH BLOOM: Let’s start with the Republicans because that’s [inaudible 36:30]. I would say Grassley and Lee, who are well-respected conservatives. If they went along with the House, that could be a different story. But Grassley and Lee have already introduced a bill and this still – the T-MAC – this bill is totally unpalatable to Democrats. It will never pass for the reasons that it calls for the abolishment of the FTC, at least with respect to antitrust, number one. And number two, it calls for the codification of the consumer welfare standards, which is red meat to many Democrats.
So if that’s where they are, that’s not really helpful for those advocates of the House bill. So I would say that. I’d be watching those two. I can’t really think of any other Republicans that are particularly focused on, you know. Grassley and Lee could bring along other Republicans, but they’re not there. At least where they are today. The House people that voted for the House bill. So there’s that.
On the Democratic side, obviously, Klobuchar is a leader on these issues. She can introduce counterparts to the House bill. Her bills are not industry specific or company specific. And they’re across the board. And that’s been her approach in legislation throughout her time in the Senate. But I’ve seen her say recently that special circumstances, I could support bills that have special obligations on specific companies if I think they’re a particular problem. So we’ll see if she introduces House counterparts. That could be important. Other than that, I mean, you sort of know where most of the Democrats on the subcommittee anyway are and they seem to be pretty supportive. But that’s not going to be decisive, pretty supportive of the House bill. Maybe Dianne Feinstein because she represents California. So I don’t know.
MR. TEDDY DOWNEY: Well, the California delegation matters a lot less in the Senate. Not that those two votes don’t matter. They obviously do since you need all of the votes you can get. But there are only two. So it seems less important than the Senate.
MR. SETH BLOOM: Right. Oh, here’s the person that I’m watching that you mentioned, Senator Schumer. And I’ve heard him recently say—I saw some reporting that he was unsympathetic to that bill. And there was a question—I thought I saw reporting that there was a question whether he would ever bring it to the Senate floor. Which, of course, he has total control over.
Senator Schumer, for those in your audience who don’t know, I was General Counsel for the subcommittee. And we had—by the way, a point of personal privilege. Representative Cicilline, who I think does not have a small ego, whenever he talked about his investigation last year, he says the first investigation of 50 years that’s ever gone into these issues. Well, excuse me, Representative Cicilline When I was on the Senate subcommittee, we did our own investigation of these issues, specifically focusing on Google. And we had Eric Schmidt testify, who was then the Executive Chairman of Google. And we made recommendations to the FTC about what they should do. And we didn’t write a 450 page report. That is true. But it was a pretty thorough investigation, which I worked on for about a year.
So I might take a little bit umbrage to Senator Cicilline, who says all the time, this is the first antitrust investigation in fifty years.
MR. TEDDY DOWNEY: Well, and then the FTC sort of ignored what you guys did.
MR. SETH BLOOM: We could talk about this. But anyway, that’s just a point of personal privilege that I needed to get out. But in terms of the reason I’m bringing that up is not for that, but because Senator Schumer, at our hearing on Google alleged anti-competitive practices, the Senator who was most supportive of Google was Chuck Schumer. And he was just a Google mouthpiece at that hearing. And it was quite startling.
Now, Google had just acquired DoubleClick and had made a lot of jobs in New York. That could be why. But he seemed to be, you know, at that time, Google was very sympathetic to the Democratic Party. And a lot of people at that time from Google who joined the Obama administration. So in the intervening 10 years, has Senator Schumer’s position changed? That’s a good question. I don’t know the answer to that. But if it hasn’t, that’s really bad news for these counsel. So I will watch him very closely.
MR. TEDDY DOWNEY: Yeah. No, I agree he’s an important person to watch. Historically, he’s been sympathetic. Although, I would say (1) the position of the party has dramatically shifted on this issue. But the consequences of big tech dominance have really become a lot more apparent recently or at least more well understood by the party. So I think it’s hard to say, oh, he’s in the same place. But that said, I think it’s a great point. He would really have to take up this issue in the same way Pelosi has in order to drive the votes in a way to get it done.
MR. SETH BLOOM: Is he really going to drive the votes this way?
MR. TEDDY DOWNEY: Yeah, I mean, here’s another thing. What he says publicly it is not necessarily an indication of what he’s really doing. So I see him say that they need to get rid of carried interest for 20 years.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: And he’s behind the scenes made sure that it remains. So it’ll be hard to know from his public comments how sympathetic he is. Again, there are a lot of jobs in New York, but the position of the party has changed. Obviously, Pelosi has his ear. You know, it’s not a small thing that they have a close relationship. And also, he’s in charge of how can they keep their majority? And to the extent that big tech power is a problem politically or an opportunity politically, I think that is going to weigh on him more than having the jobs in New York. But as you say, no one really knows where he is on these issues.
Let’s talk about the White House really quickly. Obviously, they’ve got the Executive Order. They’re saying they really want to do more on antitrust. How much does that help or hurt the prospects of this getting done in the House and Senate, that the White House has made this movement and essentially this legislation a priority?
MR. SETH BLOOM: I sort of lost the last thing that you said on your question. How much does it matter that the White House—
MR. TEDDY DOWNEY: How much does it matter for the legislation that the White House is behind this?
MR. SETH BLOOM: Well, it will matter if the White House is in fact behind it. It will matter. And people like Tim Wu and the National Economic Council are certainly behind it. So one would presume that the White House would be for it, behind it. But Biden has been a more moderate figure. But we’ll see. Yeah, so we’ll see. It’ll matter. Again, if they’re going to make a public showing and we really support this. Sure, that will matter. They haven’t done that yet. They’ve said some sympathetic things, but they really haven’t made a public statement that we’re supporting this legislation. Of course, should the legislation go to the House floor, then we would expect to get a statement of administration position, whether they support it or not [inaudible 44:29]. So that’ll be important at that point.
MR. TEDDY DOWNEY: And I want to remind everyone, if you have a question, please email us at firstname.lastname@example.org. That’s email@example.com. Now, I think we’ve exhausted this legislative conversation. Let’s talk about the other two things that are the biggest threat to big tech. I know you can’t get into the details of some of these, but let’s start with
rulemaking as the next most important thing after legislation. Seth, what’s your take on the likelihood for doing competition rulemaking at the FTC? Sorry to make you repeat yourself.
MR. SETH BLOOM: Sure. So I think that’s something that Lina Khan definitely wants to do. This is something that the FTC has not done with respect to competition issues in at least 50 years. And my historical knowledge of the FTC sort of ceases there. But have they ever made rules [inaudible 45:48]? But arguably they have the authority to do that under the FTC Act. It’ll be challenged should they do it by the way. It’ll face court challenge I’m sure.
So Lina Khan wants to do it. So therefore, it means that if she enacts rules that are sustained, what happens if the legislation isn’t so important? She can enact rules for nondiscrimination, forbidding. And she can enact rules that require interoperability, data portability, a whole range of subjects that we talked about. Now I say she. She can’t do it alone. It’s going to have to be with two commissioners. It will have to be at least the majority of the Commission voting to do it. Which leads to an interesting point, which right now there are three Democratic commissioners who—the other two I would expect, especially given what happened last week with their open meeting, the other two I would expect to support Chair Khan. But they’re about to lose one of those. That is Rohit Chopra, who is nominated to head the Consumer Financial Protection Board. Once he gets confirmed, which is probably in the next few weeks, then he leaves the FTC and then it’s a two-to-two Commission. And I don’t think the two Republicans are going to vote for any new rulemaking.
So then the Commission will be deadlocked until a new nominee is named and then confirmed, which there isn’t one named yet to replace Rohit Chopra. It’ll take a while. I could see it takes four months, five months, towards the end of the year before someone replaces him. So it would be an interregnum of a two-to-two Commission where she can’t get her rules through. But then she’ll get back a third Democrat who’s likely to be sort of favorably disposed to her and then she will be able to do this. So that’s something to watch very carefully.
MR. TEDDY DOWNEY: And the White House has asked, it’s been reported, to do this Executive Order, asking the FTC to issue a rule on rights to repair, issue a rule on banning non-competes. On right to repair, that seems something very relevant to big tech, something that if it applies to them. Any other rules—there has been talk of a rule to ban exclusionary contracts with, for example, Google’s contract with Apple to exclusively be the default search engine on Apple devices, things like that. These are going to be fought in court. But two extremely significant potential rulemaking is that you don’t hear very much about how big of a deal should—if you had to look at these three things, rulemaking, legislation or litigation, which do you think is the most significant and most near-term that stakeholders should really be focused on?
MR. SETH BLOOM: I’m not going to address your specific rulemaking because they do affect the client.
MR. TEDDY DOWNEY: Yeah.
MR. SETH BLOOM: So let’s leave out the specific rulemaking you discussed, you mentioned. But yes, I would say rulemaking is the most significant because it’s something that this radical chair of the FTC, or whatever word you want to use, interventionist, activist, really wants to do and once she has two Democratic colleagues on the Commission, she can do and doesn’t require Congressional action.
So that’s why in the medium term, as I say, probably not in the near term, because she’s going to lose her majority. But in the medium term, that’s probably the most significant thing. Now, she’s going to have to go through a notice and comment period under the Administrative Procedures Act. The rules probably take six to 12 months to get enacted, were she to propose one. But still, as I say, in the medium term, that’s probably the most significant thing. And then just because I think the prospects for legislation are not good, given all the things we discussed, particularly difficult dissent, then litigation. And if she can get two other commissioners to support litigation efforts that she makes, Lena Khan, she can say under existing law I have the power to seek lawsuits against practices I don’t like.
MR. TEDDY DOWNEY: I want to bring up two other sleeper issues. One that I think, again, totally under the radar, but extremely important happened at this open meeting. The first is the focus on and subpoena power, CID authority, for staff to investigate companies that have consent agreements with the FTC. Historically, give a little context. If you have a consent agreement that the FTC, it’s not policed very well. They don’t penalize you for violating it very severely. We got a categorical shift on that at the first open meeting. Commissioner Chopra has been adamant that they are going to punish—I think he calls them recidivists. But a lot of these big tech companies have consent agreements that they could be pretty easy to violate, even if they’re not necessarily intentionally trying to violate them. How big of a risk do you see this focus on applying the letter of the consent agreements and vigorously enforcing them as a risk to big tech?
MR. SETH BLOOM: I hate putting it the way you did, bit tech. I think you have to look at the different companies and what consent decrees they have. But we saw Facebook hammered with that. Now people think a $5 billion fine was insufficient a couple of years ago. But it’s still $5 billion dollars. I think you have to look at each specific consent decree. And some of these companies, I don’t think, are under any consent decrees. But clearly, I agree with you. It’s going to be a focus of the FTC’s attention. No question about it.
MR. TEDDY DOWNEY: Yeah, I think that’s a sleeper issue. Well, we got one question from the audience and then I want to get back to my other sleeper issue. What do you think the likelihood is that Chopra gets confirmed to the CFPB promptly? Why not keep him at the FTC to avoid a deadlock and give Khan support to push her agenda?
MR. SETH BLOOM: You know, that’s an argument. And maybe Democrats will say that, but eventually he’s got to go to—with that logic, he’d always be at the FTC. And I think people want him to be at the CFPB too. And he wants to be at the CFPB. Certainly, what you say is true. Democrats may say why confirm him? We want Khan to have her majority. Yeah, I’m not exactly sure how that’s going to come out. I would expect him to get confirmed fairly soon, in the next few weeks as they say. But maybe that sentiment will prevail over that. There’s a reason not to confirm. Sure. But then you don’t have a Senate confirmed head of the CFPB either, which isn’t a great result for those concerned about issues that the CFPB looks at.
MR. TEDDY DOWNEY: So, before we close, what do you think about the DOJ? What’s your take on selecting Lina Khan? Is that an indication that we’re going to get someone like Jonathan Cantor over at DOJ? What’s your read on the situation in terms of picking a new—
MR. SETH BLOOM: My view, first of all, I don’t have any inside contacts at the White House that are telling me what’s going on. So it’s all based on my reading the tea leave, reading the press. It seems to me, though, if you’re a nominate Lina Khan, you’re also going to nominate a very strong activist AAG at the Antitrust Division. It’s not like you’re going to balance it out by nominating somebody more conservative. That’s not what the people who made this decision are about.
And it does seem to me also that the decisionmakers in this process are sort of dominated by the left wing, for lack of a better word. Or you might call it the neo-Brandeisians, or whatever phrase you want to use, people who are sympathetic to the open market. It seems to me—just again, from reading the tea leaves, not from any inside knowledge, that those are the people that are dominating the decision-making, which makes somebody like Jonathan Cantor more likely. Although, I’m not saying it’ll be him, but somebody of that ilk.
Another thing that’s going on, which seems to me to be odd, is there have been other names mentioned, and this is all based on press reports. I have no inside knowledge of this. But like Jonathan Sallet was mentioned, who seems to be a very respectable, well-known, well-spoken, intellectual, great credentials on antitrust. What I heard, again through the rumor mill, well, he’s represented companies on the platform. So he can’t—there was pushback in the White House to nominating him. That was reported in the press. I mean, that’s sort of a crazy, in my view, a crazy way to look at it. You’re going to say nobody who’s represented a company?
That’s not done in any other area of the administration by the way. We’ve seen plenty of people who’ve represented companies who’ve gotten administration jobs. And it’s not been done in the past in the Antitrust Division. We had Bill Baer and Christine Varney, in the Obama Administration, who came from big law firms representing companies. I mean, if you’re going to say if you represent a company, you can’t have one of these jobs, you’re going to really rule out a lot of talent. And I’m not saying these jobs should only go to people that are representing these companies. But to make it a sort of a prophylactic rule that they can’t have these jobs, if that’s true – I’m not saying that I know that it is, but that’s been reported—that to me is troubling, to be frank. So it seems to me that people of the ilk of a John Sallet, if this is true, are not going to get that job. Now, it could be somebody from another place in government.
MR. TEDDY DOWNEY: It seems that they both, I mean, just based on the reporting and what we’ve heard, it seems that both could be, that they both, whether or not they’ve gotten ethics waivers or what have you, could be selected to the satisfaction of the ethics review.
MR. SETH BLOOM: The ethics review, sure.
MR. TEDDY DOWNEY: It’s really more what’s the—
MR. SETH BLOOM: Policy.
MR. TEDDY DOWNEY: —what’s the priority? Is it to have someone who’s been more historically—it’s not that they’re—I mean, I think Jonathan Sallet has said a lot in his recent career sympathetic to the open markets, the sort of Brandeisian, antimonopoly view of things. It’s just that I think Cantor has been saying that longer and has a little bit longer of a track record on that issue and the Senators aligned with that movement seem to have backed Cantor. And so if you’re going to pick Khan, you’d expect that they would go along with Cantor, to your point that it seems to be that’s how things work.
One of the things I’ve been wondering is are they going to make this DOJ pick, the third FTC pick and do this Executive Order to kind of make a big splash with another antimonopoly splash that they had when they picked Lina Khan.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: Sort of another bite of the apple to hammer the point home. We’ll see. That makes sense to me. We haven’t heard that. We haven’t reported that. But that’s kind of something to watch—because they did that all at once—in the near term. Mainly to the prior point,
the sooner you get nominated and move the third FTC person, the sooner you can move Commissioner Chopra over the CFPB.
Another thing to keep in mind for big tech is that Commissioner Chopra going to the CFPB could be an additional headache because his staff has written about the potential for the Fair Credit Reporting Act to be a hook to regulate big tech through all the data that they collect on people that is then used for credit analysis, credit reports. We’ve written about that. I think that’s really interesting. The last thing they want is to have Commissioner Chopra regulating them from somewhere else. More work for you, Seth. But I don’t think big tech will be happy about that.
We’re a little over time, but we lost some time because of the disconnection. I wanted to get to my sleeper issue number two, which is that the Khan Commission is going to prioritize investigating prior mergers. Give me some big tech mergers that you remember that you thought should not have gone through, that had a lot of hair on them, but that sort of a tech-friendly FTC let go through. I will throw one out there. I don’t know, I mean, I’m just going to just off the top of my head, I remember I remember Zillow/Tulia being very controversial at the FTC. Ultimately got waved through by Deb Feinstein. I don’t exactly recall why, but that was one that had a lot of hair on it that just comes to mind. What about some of the big tech, big ones? I remember you, all the way back, if you look at Google/DoubleClick, was very controversial. Give me give me a couple on your list that you remember, hey, maybe this is something they’re going to come back and look at.
MR. SETH BLOOM: Yeah, I mean, the first one, Zillow/Tulia is the first one you brought up the question that came to mind was Google/DoubleClick. And there was Google/AdMob. I mean, the amount of ad tech control that Google has on the buy side and sell side on the exchanges is really something. And that’s the basis of the Texas antitrust case against Google. But yeah, I think those could be very much subject to review and to re-opening.
MR. TEDDY DOWNEY: Yeah, I would also say Google/YouTube. I mean, there are just a lot of—Google just has so many high-profile ones.
MR. SETH BLOOM: I will say this though. I will say this. I think those are all—I think it’s a very difficult thing to have a court issue an order unwinding these transactions of many years. And we saw this in the Facebook decision, particularly in the state case, the decision in the state case. But that judge, I don’t think he’s a particular conservative. Judge Boasberg was very reluctant to say we’re going to go and reopen the mergers.
MR. TEDDY DOWNEY: Well, he said that the FTC could.
MR. SETH BLOOM: Okay, a
MR. TEDDY DOWNEY: Yeah, he said the FTC could. But I don’t want to read too much into that decision because it did leave the door so wide open for the FTC to come back with a definition.
MR. SETH BLOOM: Well, it’s a proper profit market definition.
MR. TEDDY DOWNEY: Proper market definition. But the other, I don’t know, other points he made seemed a little—a lot of it was a little unusual.
MR. SETH BLOOM: But I would say it was. But I would say a jurisprudential point, whatever the technical authority they have—and they have the authority under the Clayton Act to look at past mergers—I think judges are just uncomfortable with the idea of doing that. And in fact, can you think of a single merger that’s been reopened and a court has ordered the rescission, the ending of it, of a consummated merger? The only one I can think of is a Bazaarvoice if you follow that.
MR. TEDDY DOWNEY: Yeah, I just think this is a little different in that these are still kind of totally distinct things and they address a lot of the problems. And you can look back and say, look at all the bad things that happened as a result of this merger, to the extent that they get the documents or they have good evidence. I think just because it’s never been done before, I think actually you could have really compelling situations. But if, hey, this merger happened. They said all this good stuff is going to happen. None of it happened. And then all this bad stuff happened. I’m not trying to oversimplify it. I’m just saying it’s hard to prejudge.
MR. SETH BLOOM: But ultimately, believe me, if Facebook is ordered to divest WhatsApp and/or Instagram, you can be damn sure they’re going to appeal that all the way to the Supreme Court. Now, the Supreme Court doesn’t have to hear it.
MR. TEDDY DOWNEY: I mean, the Supreme Court has a Republican judge saying that maybe they should be regulated like common carriers.
MR. SETH BLOOM: That’s one. But there’s a six to three conservative majority on the Supreme Court. The Supreme Court has issued a whole series of decisions that some might call a hostile antitrust enforcement. Certainly, the plaintiff loses. I have a hard time believing—despite what Justice Thomas said—I have a hard time believing that the Supreme Court is really going to countenance companies being required to divest companies they’ve had for many years. We’ll see.
MR. TEDDY DOWNEY: It’s a good point. But even opening the door and investigating them, I think is a big sleeper issue, big risk to big tech. Got no coverage in the press. Obviously, besides us.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: So anyway, I want to throw that out there. I mean, it’s worth watching for sure.
MR. SETH BLOOM: Exactly. It’s worth watching. And Lina Khan will be determined to try to unwind some of these things that she has jurisdiction over.
MR. TEDDY DOWNEY: I think probably the more recent ones that had a lot of hair on it, that really had some clear documents that were unused by the FTC or unfound seems to be probably more risk. We went a little bit far back all the way to Google/DoubleClick, which to your point was a long time ago. So maybe the more recent – although, it was the defining one. I mean, that was a defining merger. And I’d say along with along with YouTube in some respects.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: All right. Well, I don’t have any more questions. I was just hoping we would get a few more questions. Actually, I’ve got one here. I don’t think you can answer. Okay, here’s one you can answer. How long would any of these take to get made a law, the legislation? And what do you think about Microsoft’s inclusion or exclusion in these bills?
MR. SETH BLOOM: In terms of how long it would take?
MR. TEDDY DOWNEY: Yeah.
MR. SETH BLOOM: I think we’re looking at a year. Because when are these going to get brought up on the House floor?
MR. TEDDY DOWNEY: Well, the fees could be done any day to your point.
MR. SETH BLOOM: Okay, the fees and also probably the venue thing talking about [inaudible – 1:05:24] And the fees could be done almost instantaneously[inaudible – 1:05:28] But right, those other four, when are they going to get brought up on the House floor, if they do? Is it going to be July? I certainly don’t think so. We’ve got about, I think, three weeks in session in July. So then we’re in September. And I say September, October is a more likely to time for the House floor. Again, if they get brought up. And it’s not clear that they will. But should they pass the House floor and move to the Senate, that’s going to take a long time. And is the Senate going to work on its own bill, go to committee, hold hearings, floor action? Or are they just going to take up the House
bill? And if they do, I don’t think they have much of a prospect to get the 60 votes. But anyway, I think with respect to getting it enacted, the process in the Senate could easily take six months or more from the time they sort of take up this stuff. And so I think we’re looking at next Spring or Summer. And floor time’s always dear in the Senate and leadership doesn’t like to give floor time to sort of what they would consider smaller bills.
MR. TEDDY DOWNEY: This is one thing that could get done in election season though, depending on how the companies, how things are going in the election, how—
MR. SETH BLOOM: I will say this and then I’ll drop it. The presumption of that kind of question is that these companies are unpopular. I think these companies are very popular, many of them. Maybe not Facebook because of sort of data breaches. But people love the services they get from these companies. And I think it’s sort of an inside the Beltway issue or a leftwing issue. But does it really resonate? And I won’t be any more specific than that.
MR. TEDDY DOWNEY: Well, there’s sort of two things. One is like does it play at home in the district? But I think the bigger point I make is it’s the more acutely the Congress feels the power of big tech over them in terms of making important decisions about speech –
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: —in an election year. Whether or not Trump will be allowed back on.
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: Just in time for the midterms. Things like that are not necessarily going to play as big at home with constituents, but they do loom large with the decisionmakers.
MR. SETH BLOOM: Okay, I hear your point. It’s a good point, yeah.
MR. TEDDY DOWNEY: All right. We’ve got one last question. How much will the attention on the big platforms distract from traditional antitrust enforcement? Or will the renewed focus affect all industries generally, specifically smaller tech companies?
MR. SETH BLOOM: Or any—why tech? Why not health care, aviation, agriculture? By the way, there’s two hearings coming up in the Senate Agricultural Subcommittee, one on pharmaceuticals and one on agricultural, pharmaceuticals in about a week. Yeah, I mean, I think it does distract and there are so many bigger issues I see. People’s ability to get prescription drugs that they need at a low price, generics getting excluded from the market. To me, these are more important than some
of these issues we hear talked about in big tech, all kinds of things like that. So I do think they distract.
Now, the question is what kind of legislation would get passed? The Klobuchar bill, as she introduced it a few months ago, was not limited to big tech and it would make quite strong changes in law across the board. So if there’s sort of legislation of general applicability that can get passed, then the big tech may be an impetus, but it’ll cause bigger legislation. But I don’t know. I think it’s a legitimate concern from those who believe in – and actually, it will surprise people I think, people like the open markets and Lina Khan. This focus on big tech really detracts from overall antitrust enforcement, overall antitrust legislation. Resources are not unlimited and the intention of Congress and policymakers are not unlimited. And the ability to bring cases by the enforcement agencies is a finite ability, even if they’re given more revenue, more resources.
MR. TEDDY DOWNEY: I would say certainly at the agencies, they have finite resources. And so to the extent that they’re investigating big tech—if you just look at their agenda, they’re investigating big tech. They’re investigating pharma. They’re investigating companies that target small businesses and COVID rip-offs and prior mergers, and then there was one other. But they don’t have everything on the agenda, right?
MR. SETH BLOOM: Right.
MR. TEDDY DOWNEY: And so to some extent, it does limit the scope of the things they can work on. From a Congressional standpoint, I would push back just in the sense that nothing—this has been the only bipartisan antitrust issue in recent memory. Republicans, just changing antitrust law has been a nonstarter until the work on the platforms. So I don’t think it holds—I don’t think it’s compelling to say does it distract at the Congressional level? Otherwise, they wouldn’t have any hope of getting it out.
MR. SETH BLOOM: I’ll push back on your push back. The legislative calendar is very limited. Time on the floor is very limited. And it isn’t the only bipartisan antitrust issue. I worked on several—and this is now ancient history because it was more than eight years ago. But the generic drug issue, the bill that we had and now Klobuchar took over. But she does it with Grassley to make pay for delay agreements illegal. That’s a huge issue. And she’s got other bipartisan pharmaceutical issues. So there are other bipartisan antitrust issues. That’s just one.
MR. TEDDY DOWNEY: I guess, bipartisan with the hope of actually passing.
MR. SETH BLOOM: Yeah.
MR. TEDDY DOWNEY: Those haven’t passed. They’ve been around and haven’t passed for a while.
MR. SETH BLOOM: True.
MR. TEDDY DOWNEY: Before we go, I want to get in—I didn’t hold you to the Microsoft question. What do you think about Microsoft included, excluded in the bill?
MR. SETH BLOOM: It’s a very interesting situation. I don’t know. It’s hard for me to imagine why Microsoft would be excluded. And we’ve seen complaints by Slack when Microsoft added teams.
MR. TEDDY DOWNEY: I don’t see it. I don’t see it.
MR. SETH BLOOM: You don’t see what?
MR. TEDDY DOWNEY: That’s they’re excluded. I just don’t see it.
MR. SETH BLOOM: People have asserted that they are.
MR. TEDDY DOWNEY: I know they’ve asserted it. But if you read the bills, I just don’t understand it. I don’t understand how they’re excluded.
MR. SETH BLOOM: When you have $600 million—I guess they have more than $600 million market cap. Do they have 100 million users every month?
MR. TEDDY DOWNEY: And 300,000 businesses? I don’t know. I mean, maybe somehow they’re a carve out. But I think there’s enough discretion. I mean, maybe they wouldn’t be covered. Maybe they don’t —
MR. SETH BLOOM: It’s interesting that in defending the bill, Cicilline never said Microsoft got carved up. He said these are the four companies we investigated. So those are the four companies covered, which is a little bit of bootstrapping. I mean, it’s just because you investigated them.
MR. TEDDY DOWNEY: I mean, I think Microsoft is not in the same conversation in terms of the problems that are being identified in terms of—but LinkedIn, they have LinkedIn. They have Microsoft teams. I mean, there’s just, you know, all these things. I don’t know how they wouldn’t be covered in the end. Maybe they wouldn’t be covered –
MR. SETH BLOOM: It would be up to DOJ or the FTC to designate who’s covered and who’s not.
MR. TEDDY DOWNEY: Yeah.
MR. SETH BLOOM: But Microsoft teams, the original Microsoft complaint of 20 some years ago—and by the way, it’s ironic because Microsoft was the original big tech antitrust violator who bitterly fought the DOJ case. But the original Microsoft complaint was about bundling things with Windows. So now Teams is being bundled with Windows and Slack has made a big complaint. So why would you say Windows, which is an operating system for personal computers, is still dominant? I don’t know what its market share is, 90 percent, something like that.
MR. TEDDY DOWNEY: I just don’t think Microsoft—I think if you’ve been following these issues, Microsoft is certainly not as much of a focus, but is not far behind those big four.
MR. SETH BLOOM: It’s not been the focus because Cicilline has chosen not to focus on it.
MR. TEDDY DOWNEY: Well, it’s not as big a focus—I think it’s a little bit different in just the threat to democracy and small business., I mean, you’re harming—to the extent that Microsoft—the argument is you’re harming—the type of harm that’s occurring I think you can argue is less urgent. But I think it’s irrelevant. I think they’ll be covered anyway.
MR. SETH BLOOM: If you assume that these companies are a threat to democracy and small business, which I don’t agree with., I do not. Let me just say that for the record. But yeah, if that’s your outlook on it. And that’s something. But I mean, Microsoft, they’ve got a long history with this stuff.
MR. TEDDY DOWNEY: I mean, they’re worth—their market cap is not—if you just look at it from a market standpoint, they’re right up there.
MR. SETH BLOOM: I don’t even know.
MR. TEDDY DOWNEY: I just don’t think you’re—you could maybe point, okay. Well, they don’t have all of these attributes. But I think even if they’re not covered, even if they’re not labeled covered, they’re still going to have a ton of scrutiny at the DOJ and FTC over their mergers under the current authority. So it’d be a big win if they’re excluded. I just don’t think it’s the meaning—people paying a lot of attention, it’s not clear that they’re exempt certainly.
MR. SETH BLOOM: Well, there was an amendment made at the consideration of these bills to lower the threshold from 600 million to 250 million for covered platforms and that amendment was defeated. So somebody didn’t want to include them. Now, maybe they were concerned that other companies would also be included and that would bring too many enemies.
MR. TEDDY DOWNEY: Yeah.
MR. SETH BLOOM: I would just say the reason that putting legislation that targets specific companies is not a good idea. Why $600 million? I mean, that’s totally an arbitrary number. So to me, in addition to [inaudible – 16:24], it may be an equal protection violation. How do you single out companies like that? What’s the policy rationale for that? I don’t think there is any.
MR. TEDDY DOWNEY: Yeah, I think the merger—I mean, look, at the end of the day, even though the merger legislation catches a lot of attention, the FTC is already making it a priority to police these smaller competitors. I mean, smaller acquisitions. We’ll see how that goes, whether or not they need Congressional authority. But I do think that the main bill that’s going to be the one to follow is this prohibition on favoring your own software, discriminating against your competitors, which we will keep watching. We’ve gone way over time. Seth, thank you so, so much for doing this. We got to all of the questions which I’m very excited about and look forward to talking to you about these in the future and watching all this play out.
MR. SETH BLOOM: I look forward to it as well. And thank you very much for the invitation.
MR. TEDDY DOWNEY: And thanks everyone for joining us today. This concludes the call.
MR. SETH BLOOM: Bye-bye.