How Woke Antitrust May Become the Law Without a Vote

Sen. Chuck Grassley (R-IA), a newly reelected senator, on Thursday issued a public plea to President Joe Biden to twist the arm of the president’s fellow Democrat and Senate Majority Leader Chuck Schumer (D-NY) to include two liberal antitrust bills aimed at Big Tech companies in the omnibus spending bill.

We’ve seen stranger things in Washington, but this one is close to the top. Grassley, a lifelong conservative, is propelling forward pet legislation of liberal Sens. Richard Blumenthal (D-CT), Elizabeth Warren (D-MA), and Amy Klobuchar (D-MN). It would be refreshing for conservatives and liberals to cooperate to pass needed legislation. But these two bills are inimical to a free market society and everything Republicans purport to stand for.

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Start with Grassley’s support for Klobuchar’s American Innovation and Choice Online Act, which passed out of the Senate Judiciary Committee with the vote of Grassley and some other Republicans. It is understandable why Republicans are upset at Big Tech. As the dump of internal Twitter machinations shows, large social media platforms actively discriminate against conservatism and Republicans. As the Twitter scandal also shows, markets eventually work, and the truth will out.

Out of justifiable pique against Twitter, Facebook, et al., Grassley and other Republicans are supporting Klobuchar’s bill without taking in the small print. This bill would subject U.S. businesses to death penalty fines of 15% of their revenues for violating vague, sloppily defined infractions. According to Sen. Tom Cotton (R-AR), the language and definitions in the bill could soon bring a host of non-social media companies into the regulatory net of this bill, ranging from Kroger to Home Depot, as well as banks, financial service firms, and manufacturers.

The Klobuchar bill, widely seen as needed to kick off the Minnesota senator’s bid for the presidency, would create so many new causes of action against companies that it would effectively install Biden’s hyperaggressive Federal Trade Commission Chairwoman Lina Khan on the board of every large corporation in America. If you detest the “wokeness” of big business today, just wait until corporate ideological fealty is imposed by fear.

The worst aspect of this legislation is that, by the admission of its House sponsor, it is hands-off on content moderation. So, the bill doesn’t even do what Grassley wants it to do. If anything, this bill will create new incentives to discriminate against conservative speech. In the face of hyperregulation and massive company-killing fines, big social media platforms would have an existential reason to crack down on conservative speech. It would almost be malfeasance for them not to.

Meanwhile, Klobuchar’s bill would make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force Facebook, Amazon, and other tech giants to share everything they know about consumers and businesses, as well as government clients, including the Department of Defense, with thousands of other companies, some of them foreign. What could be wrong with that?

The bill specifically forbids Chinese companies from acquiring this data. That’s about as credible as a law strictly forbidding sports betting in Vegas. FBI Director Christopher Wray has warned that China resorts to shell games to hide its secret investments in companies. It beggars belief that so much data could be released into the digital wilds and not wind up in China’s hands.

The loose, broad language of the Klobuchar bill reads as if it began as a messaging bill that suddenly got a shot at passage. Its provisions are so poorly thought out that Klobuchar refused to let it be subjected to a hearing, where experts would detail its shortcomings before her peers.

Another bill in the mix is the Open App Markets Act, which has the same shortcomings as the Innovation and Choice Online Act. It would require companies to release their security practices publicly. And it would force app stores to host third-party apps that fail to meet their high standards for security.

Why would Republicans rescue legislation that was not vetted in a hearing? Or support a bill that has not been debated on the floor or voted on? Or help Klobuchar run for president? Why would Republicans of all people vote to enthrone Biden’s regulatory power over the economy, mandate woke media, and throw our personal, corporate, and defense information to our enemies?

One hopes that enough of Grassley’s colleagues, as well as Senate Minority Leader Mitch McConnell (R-KY), will step in to stop any inclusion of these bills in the omnibus.

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Robert H. Bork Jr. is president of the Antitrust Education Project.