Judiciary Chairman Graham Open to Senate Antitrust Investigation of Tech Industry

The Senate Judiciary Committee is open to launching an investigation into tech industry competition, mirroring the House Judiciary Committee’s probe announced this week, Chairman Lindsey Graham, R-S.C., told us Tuesday. Sens. Ted Cruz, R-Texas, and John Kennedy, R-La., told reporters they would welcome parallel efforts in the Senate. Sen. Josh Hawley, R-Mo., argued such matters are best handled by DOJ and the FTC.

Asked whether there will be a Senate investigation, Graham said, “We’ll look at it.” It’s “good” the House is scrutinizing the tech industry, he added. Ranking member Dianne Feinstein, D-Calif., told us she would like to better understand the House approach first.

The House Judiciary Committee has been preparing an investigation “for a long time,” Chairman Jerry Nadler, D-N.Y., told us: “We’re not making any accusations of anybody. It’s just time to have a good investigation of antitrust. [We] haven’t done it in many years.” Lawmakers will collect information on anything about concentration of power, with a focus on the largest tech companies, he said.

“This isn’t an investigation of anyone in particular,” ranking member Doug Collins, R-Ga., told us. “It’s an investigation into an industry. That is something we have jurisdiction over.” How data privacy relates to tech industry competition will be a focus, he said. House Antitrust Subcommittee Chairman David Cicilline, D-R.I., and ranking member Jim Sensenbrenner, R-Wis., joined Nadler and Collins in announcing the probe.

Sen. Mike Lee, R-Utah, warned antitrust investigations are “highly technical” and better left to enforcers. Leaks about the FTC and DOJ dividing tech industry jurisdiction (see 1906030060) “undermine” the effectiveness of antitrust laws, he said Tuesday. A “divergence in enforcement” could potentially overcomplicate the situation, he added: “We should be seeking more harmony in antitrust enforcement, not less.”

Only law enforcement agencies can lead “real” antitrust investigations because they have the tools and power to compel relevant testimony and properly analyze information, Hawley said. When House lawmakers announce “an antitrust investigation, I don’t know what that means. They can have hearings, call witnesses, and that’s fine, [but] they don’t have any enforcement authority.” Antitrust probes he led as Missouri attorney general were “massive” undertakings, he said.

Cruz is “glad” to see the House announcement: “I’d love to see the Senate Judiciary Committee do the same.” He agreed with Cicilline that tougher tactics like subpoenas might be necessary. Kennedy told reporters he disagrees with Lee: “It’s appropriate from time to time for both the federal agencies and Congress to ask whether that size is impacting the consumer and if so, how much.” Kennedy welcomed parallel efforts in the Senate. He said the tech industry doesn’t lend itself to traditional antitrust scrutiny because platforms like Facebook and Google don't charge customers: “This isn’t normal because the services are free, but they’re not free in terms of what consumers give up.”

Sen. Thom Tillis, R-N.C., said political motives, not “meaningful policy,” may be driving decisions in the House. If the purpose is to gather information and better understand tradeoffs, hearings could be useful, he said.

The House probe is “good” news, said Sen. Amy Klobuchar, D-Minn. The Senate, she added, should consider moving her antitrust legislation, which alters standards for major deals (see 1703130066). “The pace of technology has far exceeded the pace of laws and regulations,” Rep. Hank Johnson, D-Ga., said.