Antitrust: Hawley and Klobuchar on the big tech battles to come

Antitrust is hot. In February, the Minnesota senator Amy Klobuchar introduced the Competition and Antitrust Law Enforcement Reform Act of 2021. Weeks later, the Missouri senator Josh Hawley proposed the Trust-Busting for the Twenty-First Century Act. Both bills are pending before the Senate judiciary committee.

Hawley and Klobuchar have both published books. Hawley offers The Tyranny of Big Tech, and Klobuchar Antitrust. There is plenty of overlap but the substantive and stylistic differences are glaring.

Hawley takes pride in owning the libs. Klobuchar criticizes the Trump administration’s lack of antitrust enforcement. His book is barbed. Hers methodical.

On 6 January, Hawley gave a clench-fisted salute to pro-Trump militants and voted against certifying the 2020 presidential election. On the page, he doubles down.

Two weeks after the Capitol attack, Klobuchar told the presidential inauguration: “This is the day our democracy picks itself up, brushes off the dust and does what America always does.” She remains angry with Hawley and “Flyin’” Ted Cruz for the insurrection and its aftermath.

Playing to type, Hawley has also provided the sole vote against a bill to crack down on anti-Asian hate crime and opposed renaming military bases named for Confederate generals. Roy Blunt, Missouri’s senior senator and the No 4 member of GOP Senate leadership, parted ways with Hawley on both. In the civil war, Missouri was a border state. A century and a half later, it looks like Hawley has picked the losing side.

In his book, he upbraids corporate America, “woke capitalism”, Amazon, Google and Facebook. He demands that Google “be forced to give up YouTube and its control of the digital advertising market”.

He would also have Facebook “lose” Instagram and WhatsApp, and accuses Amazon of destroying Parler, the conservative alternative to Twitter funded by Rebekah Mercer, a Hawley donor along with her father, Robert Mercer and other Trump acolytes.

Hawley’s embrace of antipathy toward big business – even that in which he invests – is not exactly new.

In 2008 he published a biography of Theodore Roosevelt, subtitled Preacher of Righteousness and approving of the 26th president’s relentless support for the little guy.

Almost a decade later, as Missouri attorney general, Hawley launched an antitrust investigation of Google. Shortly after that, as a Senate candidate, he told Bloomberg News: “We need to have a conversation in Missouri, and as a country, about the concentration of economic power.”

But Hawley is buffeted by contradictions. He has for example feted Robert Bork as a conservative martyr, even as Bork’s legal writings have served as intellectual jet fuel for those developments in the marketplace Hawley professes to abhor.

The Tyranny of Big Tech makes no mention of the professor who wrote an influential anti-antitrust book, The Antitrust Paradox, in 1978, nine years before he was blocked from the supreme court.

Klobuchar, by contrast, gives Bork plenty of face time.

“For Bork,” she writes, “the accumulation of wealth in the hands of a few is not a relevant consideration for antitrust law.”

Bork had issues with civil rights too. In 1963, when Jim Crow was still in full force, he branded what would become the Civil Rights Act of 1964 “legislation by which the morals of the majority are self-righteously imposed upon a minority”.

In The Tyranny of Big Tech, Hawley also blasts corporate abuse of personal data and data mining – all while he looks to Peter Thiel of Palantir for donor dollars.

Left unstated is that Palantir was embroiled in the Cambridge Analytica data scandal. Cambridge Analytica was owned by the Mercer family and Thiel was an early funder and board member of Facebook. The circle is complete.

Hawley’s book can be viewed as plutocrat-populism in print. Tucker Carlson’s praise is blurbed on the jacket. Inside, Hawley defends Rupert Murdoch’s Fox News from purported predations by Mark Zuckerberg’s Facebook. Both Murdoch and Zuckerberg are billionaires many times over.

Hawley is on stronger ground when he revisits the nexus between the Obama administration, Hillary Clinton’s campaign and Google. Eric Schmidt, then head of the company, was Obama’s chief corporate ally. On election night 2016, Schmidt, wore a Clinton staff badge, having spent months advising her campaign.

In her book, Klobuchar furnishes an overview of the evolution of US anti-monopoly law and a call for rebalancing the relationship between capital and labor. She condemns corporate consolidation and wealth concentration, and views lax antitrust enforcement as antithetical to democracy.

In a footnote, she commends Hawley for addressing the “turf wars” between the Department of Justice and the Federal Trade Commission, and their negative impact on antitrust enforcement. Unlike Hawley, however, Klobuchar vehemently disapproves of the supreme court’s Citizens United decision and characterizes it as opening “the floodgates to dark money in our politics”.

In 2016, Dave Bossie, president of Citizens United, wrote an op-ed titled: “Josh Hawley for [Missouri] Attorney General”. In his maiden Senate race, Hawley’s campaign received $10,000 from the Citizens United Political Victory Fund.

Unfortunately, Klobuchar goes the extra mile and calls for a constitutional amendment to overturn that decision. Her would-be cure is worse than the disease – an attack on free speech itself.

The proposed amendment would expressly confer upon “Congress and the states” broad power to curtail campaign fundraising and spending. It also provides that “nothing in this article shall be construed to grant Congress or the states the power to abridge the freedom of the press”.

Not so curiously, it is silent about “abridging the freedom of speech”, an existing constitutional protection. Media barons rejoice – all others start sweating.

In 2020, Klobuchar came up way short in her quest for the Democratic presidential nomination. Now, she chairs the Senate’s antitrust subcommittee, where Hawley is a member.

Both senators were law review editors: she at the University of Chicago, he at Yale. If Hawley has written a sort of campaign manifesto for the Republican presidential primary in 2024, Klobuchar’s book reads at times like an application for supreme court justice. It contains hundreds of pages of footnotes and pays repeated tribute to the late justice Louis Brandeis.

Klobuchar also heaps praise on Stephen Breyer, a member of the court appointed by Bill Clinton and a former Harvard Law professor who in 1982 authored Regulation and Its Reform, a counter to Bork and the “Chicago School”.

Klobuchar extends an array of “thank yous”. There is one for Jake Sullivan, her former counsel, now Joe Biden’s national security adviser; another for Matt Stoller, a former staffer to Bernie Sanders on the Senate budget committee and a sometime Guardian contributor; and another for Paul Krugman of the New York Times. All three come with definite viewpoints and are strategically placed.

Increased antitrust enforcement by the DoJ, the FTC and the states appears to be more likely than wholesale legislative change. A government antitrust case against Google proceeds. Furthermore, Biden has already appointed two critics of big tech to key slots at the White House and the FTC. Who will lead DoJ’s antitrust division is an open question. Finding a suitable non-conflicted pick appears difficult.

Klobuchar and Hawley will be heard from. Their books matter.

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