ProMarket: Little Law and No New Regulator: What’s Missing in the House Antitrust Report

December 14, 2020 Media

The House Antitrust report spans 449 pages, 30 of which contain recommendations for antitrust reform. However, one of the most telling aspects of the report is not what is in it but what has been left out.

Some written documents are like a woodcut or a paper silhouette: what is left out defines them as much as what is included. So is the case with a recent report on competition in digital markets by the staff of the House Antitrust Subcommittee, which is chaired by Rep. David Cicilline (D-RI).

It might be hard to believe the report is missing anything. After all, the subcommittee under Cicilline’s leadership spent more than a year investigating digital markets, held seven hearings with 38 witnesses, collected nearly 1.3 million documents, interviewed more than 240 market participants, and received 38 written submission from 60 antitrust experts. At the end, the Democratic staff released 449 pages distilling the results of their investigation and offering 30 pages of recommended changes. What could possibly have been left out? It turns out the Cicilline report has two defining absences.

A second reason seems even more plausible: left-of-center antitrust reformers are very vocally divided on whether to create a new agency. Fordham University law professor Zephyr Teachout, a perennial critic of Big Tech, railed against those promoting a digital regulator, pointing out the likelihood that such an agency would be captured by the regulated companies. She specifically noted that “the brilliant Cicilline Report did not adopt this distraction.” Antitrust provocateur Matt Stoller tweeted that “a new digital regulatory agency is a TERRIBLE idea.” Others, such as Sarah Miller, Executive Director of the American Economic Liberties Project, also praised the House report for focusing on other solutions.