Klobuchar needs to put her antitrust legislation to the sunshine test

Winter is coming for America’s tech industry. Sen. Amy Klobuchar (D-Minn.) is marshaling forces to push antitrust legislation that would put Washington bureaucrats in charge of innovation and business decisions that have made Apple, Amazon, Google, and Microsoft so popular here and around the world. And as with the winter weather here in the capital, the best antidote is sunshine — in the form of an open hearing to air very real concerns about how Klobuchar’s bills would hurt consumers and undermine America’s competitive standing in the world.

That kind of sunshine was absent last June when similar antitrust bills were marked-up in a closed House Judiciary Committee meeting that went all night long, without any input or testimony. But that’s the point of going straight to a closed markup — it lets the sponsors avoid a public hearing that puts sunshine on the proposed legislation. Still, that messy markup session tainted those antitrust bills to the point where Speaker Nancy Pelosi (D-Calif.) has held them back from the House calendar so far. 

But those bills could break loose if the Senate rams related legislation through, again without a hearing.

What would we learn at an open hearing on Klobuchar’s antitrust bills, with testimony from economists and internet security and privacy experts? First, her American Innovation and Choice Online Act would prohibit innovation that has given American consumers so many choices online. In her own words, Klobuchar’s bill would “Prevent self-preferencing and discriminatory conduct.” That bars Amazon from showing its generic products as alternatives to products from big name brands. Amazon’s 150 million Prime customers would no longer see a Prime badge signaling next-day shipping, since that would “discriminate” against sellers who don’t have their products shipped from Amazon distribution centers. 

A hearing on Klobuchar’s bill would also reveal that Google search results may no longer default to showing a Google map and reviews if search results include a nearby destination. Klobuchar says that would be illegal for “biasing search results in favor of the dominant firm.”

Perhaps most worrying for bill sponsors is that internet security experts would describe consequences when Klobuchar’s law stops a dominant platform from “preventing another business’s product or service from interoperating.” Apple could be penalized for blocking an app from its App Store, even when Apple believes there are risks of security or privacy breaches, whether from the app provider or from hackers who exploit access granted to the app.

At a hearing, we’d learn that the bill’s mandated “interoperability” is precisely how a university researcher allowed Cambridge Analytica to steal the private data of millions of Facebook users.  

A hearing would give Americans the chance to hear Klobuchar explain how her bill could constrain politically driven prosecution by FTC and DoJ officials demanding that a company do more to stop global warming or to advance economic and social justice for their workers. 

If we’re lucky, the Senate hearing could also address Klobuchar’s second antitrust bill, the Platform Competition and Opportunity Act. That bill would bar the largest American companies from acquiring related businesses, putting the brakes on growth and innovation at Amazon, Apple and Google. The highlight of the hearing would be Klobuchar explaining why her bill would lock-in those few companies as the enforcement targets, while carving-out Walmart and her home-state retailer Target – even if they later grew beyond the size threshold in the law.

Finally, an open Senate hearing puts sunshine on what will alarm Americans whose retirement savings are invested in Apple, Amazon, Google, Meta, and Microsoft. Those companies lead the world in R&D investment and innovation, yet would be prosecuted by a subjective and destructive antitrust regime untethered to traditional standards of consumer welfare. That would reduce America’s technological standing in the world, at a time when other nations are helping their own champions compete with us.

Unfortunately, Senate leadership may bow to Klobuchar’s pressure to bypass hearings and move straight to a closed markup in a committee she chairs. All major legislation, particularly when it impacts America’s world-leading tech industry, needs to pass the Sunshine Test – a fully open process of probing questions and debate.

If there’s no Senate hearing, the concerning consequences discussed above would only be revealed when enforcement of the law begins. And that’s when winter really comes for American consumers.

Steve DelBianco is President & CEO of NetChoice