Focusing on Enforcement to Hold Big Tech Accountable

Jonathon Hauenschild, J.D., is Policy Counsel at Lincoln Network, a nonprofit that focuses on the intersection of technological innovation and public policy. Luke Hogg is Policy Manager at Lincoln Network.

With the August recess approaching and the November elections looming, the window is rapidly closing for the current Congress to enact legislation updating antitrust laws to hold big technology companies accountable. That could be good news for American consumers, since the flagship bill under consideration in the Senate might force tech firms to address its ambiguity by ending access to products and services many people use. Even if the issue is kicked to the next Congress, lawmakers on both sides of the aisle can still work together now to promote a more competitive tech ecosystem by providing much-needed resources to enforcement agencies.

The two primary agencies charged with competition policy and antitrust enforcement are the Department of Justice’s Antitrust Division (DOJ-ATR) and the Federal Trade Commission (FTC). Over the past few decades, these agencies have been asked to do more with less, especially when it comes to resource-intensive and highly-technical cases in the tech sector (e.g., the investigations into Apple, Amazon, Google, and Facebook).

Even as demands have increased, the budget authorities for these agencies have remained relatively flat. Adjusting for inflation, appropriations for both agencies have fallen. The lack of funding has led to stagnation in both employment and enforcement. The FTC and DOJ simply do not have the resources to pursue every potential antitrust violation, forcing them to pick and choose cases.

When it comes to antitrust enforcement actions against large tech firms, the FTC and DOJ are consistently outgunned. In its budget request for FY 2023, the FTC noted that “FTC staff are severely outmatched by the resources that dominant technology firms can deploy, such that the number of attorneys and experts working for defendants can outmatch FTC by ten to one.” Where there are legitimate antitrust concerns against Big Tech, a lack of resources often makes it more difficult than necessary for enforcers to bring a case.

In both the House and Senate, appropriations for the FTC are handled by the appropriations subcommittees on Financial Services and General Government, while the subcommittees on Commerce, Justice, Science, and Related Agencies handle DOJ appropriations. The House has already marked up and released their appropriations for FY 2023, providing $230 million to the DOJ’s Antitrust Division (a 19 percent increase) and fully funding the FTC’s request for $490 million (a 30 percent increase). To go into effect, the Senate will have to match numbers with their House counterparts, as well as agree to an overall topline budget.

To promote competition and strengthen the federal government’s ability to enforce existing antitrust laws, the Senate should support full funding of the FTC, as well as increasing appropriations to the DOJ’s Antitrust Division to fully-fund its budget request of $273 million.

Many fiscal conservatives may shudder at the thought of increasing appropriations to the FTC and DOJ. However, most of the money spent on these agencies is accounted for not by taxes, but by fines and fees charged to companies. The White House estimates that pre-merger filing fees would offset $274.5 million for each of the FTC and DOJ in FY 2023. Add on to these fees the millions in settlements and penalties these agencies obtain, and increased appropriations balance out.

With a controversial tech critic at the helm of the FTC, there is a legitimate concern that the Commission might overreach its authority and overly politicize its activities in the near term. The core function of the FTC is rightfully to protect consumers, and the Commission should focus on its historical task of ensuring that government practices do not harm consumers by hampering competition, innovation, and choice. While the U.S. judicial system operates as an important backstop, providing companies a way to appeal any FTC decision, Congress should also take action to ensure that the FTC does not use its authority improperly. Additional funding and staff are necessary to support the Commission’s antitrust efforts. But appropriators should also include language in their report clarifying that additional resources are only to be used to support the FTC’s broader mission of protecting consumers.

Authorizing bills are not the only vehicle by which Congress can hold Big Tech accountable. Before considering broad changes to federal antitrust laws, Congress should ensure that the FTC and DOJ have the resources they need to enforce existing ones—which have proved more than adequate in past tech cases, from Microsoft, to IBM, to Ma Bell. Rather than eliminate the consumer welfare standard or create a special regime for Big Tech companies, as some legislative proposals seek to do, Congress should provide the FTC and DOJ with the expert staff and tools needed to investigate claims of behavior that harm consumers.