Will Ted Cruz Take a Sharp Left Turn on Antitrust Policy?

National Review | by Robert H. Bork, Jr. | published June 17, 2022

Conservatives in Congress have good reason to rage at Big Tech censorship. But too many of them have let their anger get the better of them.

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In January, Senator Ted Cruz joined four Republican colleagues to pass Democrat Amy Klobuchar’s Innovation and Choice Online Act out of the Senate Judiciary Committee. The word on Capitol Hill is that Senate majority leader Chuck Schumer has now promised Klobuchar that her antitrust bill, which takes aim at Big Tech, will get a floor vote later this month.

If Cruz maintains his support for Klobuchar’s bill, he could potentially bring enough like-minded Republicans with him to send this progressive dream to President Biden’s desk.

Why would a conservative Texas Republican support progressive antitrust legislation? Simply put, Ted Cruz is mad enough to swing a wrecking ball at Silicon Valley.

Shortly before voting to move Klobuchar’s bill out of committee, Senator Cruz said the “pervasive” censorship of conservatives by Facebook, Twitter, and other social-media platforms “is malicious, and it is brazen. And Silicon Valley keeps getting worse and worse because no matter how egregious they get with censorship, they’ve discovered there are seemingly no limits and very few downsides to engaging in their self-declared role as the arbiters of what is allowed to be said and what is not allowed to be said.”

Cruz candidly admitted that the bill he was voting to move along would not address Big Tech censorship. But with an amendment from the Texas senator, it could become a vehicle for conservatives’ emotional satisfaction. “It is usually my Democratic colleagues who are proposing private rights of action, and it is usually Republicans who are expressing concerns about additional litigation,” Cruz said. “I will say from my perspective the abuses of Big Tech are so egregious that I am more than happy to unleash the trial lawyers.”

If Cruz follows through on his anger, he will be playing the gullible Wile E. Coyote to Klobuchar’s Road Runner. Klobuchar’s bill would subject American businesses to a degree of centralized control that would amount to socialism. It would institutionalize corporate “wokeness” and censorship. And it could expose the private data of millions of Americans to the Chinese Communist regime.

Does this sound over the top? Consider: Klobuchar’s bill would subject a growing number of businesses to “death-penalty fines” of 15 percent of revenues for violating vague, poorly defined redlines. According to Senator Tom Cotton, the bill “includes language that could catch up a lot of other firms that are nothing like these [social-media] companies . . . potentially treating Kroger, or Piggly Wiggly, or Home Depot with the same kind of antitrust restrictions that we expect on Facebook, Apple, or Google.”

This bill would give progressive regulators infinite excuses to target a company or an executive at will. It would create so many new mechanisms for government control of business that C-Suite wokeness and ideological intolerance could easily be enforced by Biden’s hyper-aggressive Federal Trade Commission chairwoman, Lina Khan.

Ironically, if Cruz, angered over censorship, enables the Klobuchar bill to become law, the result will be the worsening of Big Tech’s content-moderation discrimination, which already sometimes amounts to outright censorship of conservative views.

Klobuchar’s legislation would also force Big Tech companies that do business with third parties, such as Amazon’s marketplace for small sellers, to share access to their operating, hardware, and software systems with other companies. “Quite perversely,” said another Senate Republican, Mike Lee of Utah, the bill “may actually entrench the very four companies at which it’s aimed, by creating a strong incentive to simply cease doing any business with third parties.”

“This could crush thousands of small businesses,” Lee added. “It could actually worsen the state of competition in online markets.”

Worse, Klobuchar’s bill would make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force Facebook, Amazon, and other tech giants to share everything they know about American consumers with thousands of other companies, some of them foreign.

Where might all that data go? Cruz’s fellow Texas Republican, Senator John Cornyn, pointed to 2020 guidelines from Beijing that remind private Chinese companies that they serve the state. He also noted that a 2017 Chinese law obligates companies doing business in China to cooperate with Chinese intelligence services.

Alarmed by this critique, Senator Klobuchar amended her bill to exclude sharing of Americans’ data with China or any other “foreign adversary.” Once Americans’ data is shared by thousands of companies in the digital wild, however, how realistic is it to believe that China will not gain access to it?

It is understandable that conservatives want to lash out at Big Tech censorship. But too many conservatives in Congress have let their anger get the better of them. Senator Cruz and others have only days to change course before they permanently alter the landscape of American antitrust law and do real harm to every American who uses social media.

​ROBERT H. BORK JR. is the president of the Antitrust Education Project