At a hearing of the Antitrust Subcommittee of the Senate Judiciary Committee today, Chair Amy Klobuchar (D-MN) emphasized the need for broad antitrust reform. While she rallied bipartisan support to supplement antitrust budgets and encountered little opposition for helping news outlets bargain with social media, prospects for her sweeping S. 225, the Competition and Antitrust Law Enforcement Reform Act remain uncertain.

Big tech and big business generally had few fans from left or right on the panel today, but Senators did not coalesce on the ambitious agenda Senator Klobuchar has laid out in S. 225. At the same time, however, Senator Klobuchar has indicated parts of the bill could move separately and she is committed to finding common ground with Republicans. Bottom line: with similar sentiments expressed last week in the Antitrust Subcommittee of the House Judiciary, some reforms could start advancing in both chambers.

The highlights:

• Subcommittee Chair Klobuchar identified as problems (and several witnesses agreed): (1) courts that are increasingly “closed off” to antitrust challenges; and (2) the lack of adequate resources for agency enforcement efforts.
• She laid out an ambitious agenda targeting: (1) market concentration; (2) agency resources (she has touted her legislation with Senator Grassley (R-IA)); (3) exclusionary conduct; and (4) the importance of shifting the burden in the case of ”mega-mergers.” She also advocated for the resumption of regular data collection on the performance of the economy by the FTC.
• This hearing was intentionally broad. The Subcommittee will hold sector specific hearings going forward, Klobuchar announced, and she mentioned potentially breaking her bill into pieces and working with various Senators on those individual issues.
• Subcommittee Ranking Member Lee (R-UT) said he does not see a need for a sweeping overhaul of antitrust laws, though he did promote his One Agency Act to consolidate federal antitrust efforts.
• Lee worried, however, that market power was enabling censorship of conservative views and that markets on their own may not solve the problems.
• Senator Blumenthal (D-CT) focused on the tech industry and the importance of addressing interoperability and portability issues for consumers. More broadly, he highlighted his legislation to eliminate forced arbitration.
• Senator Klobuchar pointed to some alignment with Senator Hawley (R-MO) regarding the need to address exclusionary conduct, especially in the tech sector.
• There was no dissent about the need for more agency resources.
• Nor did anyone disagree that media needed help, a particular focus for Senator Blackburn (R-TN) during today’s hearing and the subject of another bill recently introduced by Senator Klobuchar. The Journalism Competition and Preservation Act would remove some antitrust impediments for news media to bargain collectively with content distributors.
  • The bill is cosponsored by Sen. Kennedy (R-LA), and previous versions had the support of Minority Leader McConnell. A counterpart has been introduced in the House, by the Judiciary’s Antitrust Subcommittee Chair Cicilline (D-RI) and Ranking Member Buck (R-CO).
• The hearing documents and video are available here:
  Competition Policy for the Twenty-First Century: The Case for Antitrust Reform Senate Committee on the Judiciary | Subcommittee on Competition Policy, Antitrust, and Consumer Rights
  March 11, 2021
  https://www.judiciary.senate.gov/meetings/competition-policy-for-the-twenty-first-century-the-case-for-antitrust-reform

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