Little Law And No New Regulator: What’s Missing In The House Antitrust Report

By: Neil Chilson (Pro Market)

It might be hard to believe the report is missing anything. After all, the subcommittee under Cicilline’s leadership spent more than a year investigating digital markets, held seven hearings with 38 witnesses, collected nearly 1.3 million documents, interviewed more than 240 market participants, and received 38 written submission from 60 antitrust experts. At the end, the Democratic staff released 449 pages distilling the results of their investigation and offering 30 pages of recommended changes. What could possibly have been left out? It turns out the Cicilline report has two defining absences.

Missing Legal Analysis

The report is primarily a narrative document, not an argumentative one. It gathers and lays out many factual findings but does not apply the law to those facts to reach any legal conclusions. Even the narrative is circumscribed; for example, the report does not describe the existing state of antitrust law. Part V spends 267 pages—more than half the report—describing the business practices of four specific technology companies: Facebook, Google, Amazon, and Apple. (Speaking of things that are missing, where is the description of Microsoft, the second-largest tech company in the world?)

The report’s tone often indicates that staff are critical of a particular business practice. Indeed, one would be hard pressed to find in the report even one business practice that staff considers valuable to consumers. For example, Amazon Prime has made free next-day shipping so commonplace that people barely remember that just 10 years ago, standard shipping took six to eight weeks…