David Cicilline's inquiry could do public damage to Silicon Valley in a way regulators won't

Makan Delrahim, the chief of the Justice Department’s antitrust division, gave a speech on Tuesday arguing that his department had everything it needed to pursue legal action against technology companies who wield their market power in nefarious ways. “Those who say we need new or amended antitrust laws to address monopoly concerns should look to history and take heart,” he said.

Several hours later, Representative David Cicilline, a Democrat from Rhode Island, seemed to brush Delrahim back. “Congress — not the courts, agencies, or private companies — enacted the antitrust laws,” said Cicilline, at a hearing of the House Judiciary subcommittee focused on competitive issues in the digital economy. "And Congress must be responsible for determining whether they are equipped for the competition problems of our modern economy.”

The jostling for position shows how much the politics of antitrust, which have basically been a non-issue throughout the digital age, have shifted. Anger at Silicon Valley may now be the only significant area of bipartisan agreement in Washington. Federal regulators recently divided responsibility for antitrust investigations into technology companies, and state attorneys general have been laying the groundwork for their own investigations. Democratic presidential hopefuls, most prominently Senator Elizabeth Warren, have been taking an increasingly hard line on Silicon Valley. President Donald Trump’s continued attacks on the industry, meanwhile, create political space for Republican lawmakers to do the same.

Cicilline, chair of the House Judiciary’s subcommittee on antitrust, is emerging as a key player in the fight against big tech. Now 57, Cicilline was elected to Congress in 2011 after serving as the mayor of Providence, his hometown. He became the ranking member of the antitrust subcommittee in 2017, and began pushing for stronger action on the issue. He gained little traction at first; he couldn't convince Congress to hold hearings on Amazon's $14 billion of Whole Foods later that year. But he kept at it. In March, he wrote an essay in the New York Times calling on the Federal Trade Commission to investigate Facebook for antitrust violations. He wrote that Facebook has already “repeatedly shown contempt for its legal commitments,” and that the commission should consider forcing the company to replace executives or board members, and to make changes to its business model. In an interview this week with CNN, Cicilline disputed the suggestion that he had called to break up the company.

Cicilline doesn’t seem inclined to wait and see what happens. On Tuesday, he told a group of reporters that he hadn’t heard Delrahim’s speech, but added he hadn’t been impressed so far with what he described as the “enthusiasm of the antitrust agencies.” Cicilline says he hasn’t formed a clear idea of what changes should be made to the law, but he doesn’t share Delrahim’s sanguine view of the rules as they currently stand. “It’s hard for me to believe there won’t be some ways to improve an antitrust statute that was written more than 100 years ago,” he said.

One way that a congressional antitrust inquiry will be distinct will be in its volume. Cicilline says he plans to pull together a record of the damage wrought by anti-competitive behavior, by gathering documentary evidence and holding numerous public hearings through next year. While he hasn’t yet requested that any company executives appear, he says he’s leaving the option open. Facebook Inc. and Google both worry that Cicilline’s hearings will be embarrassing in a way regulatory proceedings will not be, according to three people familiar with the thinking at those companies. This could build momentum for new policies forcing real changes to their business models. Neither Facebook nor Alphabet Inc.’s Google responded to a request for comment.

Groups that want aggressive action against tech companies basically agree.“This investigation provides a channel for uncovering so much material that makes clear those kinds of solutions are necessary,” said Sarah Miller of the Open Markets Institute, a group pushing for a wholesale reconsideration of antitrust enforcement.

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