Nota Bene Podcast Ep. 143
Revisiting the U.S. Congress Big Tech Antitrust Debate with Bill Margeson
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Listen to the original podcast released September 15, 2021 here: https://www.sheppardmullin.com/notabene-332
As movement continues in the realm of U.S. antitrust legislation, many wonder when new legislation will be officially passed and how it will impact America and the Big Tech industry players. Bill Margeson discusses how this legislation has evolved under the Biden Administration and whether to expect any landmark changes in the near future.
Guest:
Guest Bill Margeson is an associate in the Antitrust and Competition Group in Sheppard Mullin’s Los Angeles office. Bill has litigated antitrust, intellectual property, and other disputes in federal and state court and in the International Trade Commission under Section 337. Bill also has criminal litigation experience, including in grand jury investigations related to price fixing and fraud. Prior to law school, Bill worked in the public policy field.
Transcript:
Michael P.A. Cohen:
Welcome to episode 143 of the Nota Bene podcast. Thank you so much to all of our listeners in more than 100 nations across the globe. We appreciate your continued participation in our ongoing conversations. And please keep your feedback coming. It does continue to help influence our programming on a regular basis.
Michael P.A. Cohen:
I'm welcoming back to the show today my friend and colleague Bill Margeson, one of my favorite people on the planet. Bill received his undergraduate degree from Carleton college in Minnesota, which those of you in the United States section of North America, and perhaps even the Canadian section of North America as well will recognize as one of the top institutions of higher learning in the 50 states. Carleton is a small liberal arts college perennially ranked among the nation's top schools, where Bill graduated Cum laude in his discipline. He went on, ultimately, to obtain his Juris Doctorate degree from Georgetown University Cum laude, and folks will perhaps recognize Georgetown university as well as one of the nation's leading academic institutions for the philosophy degree of law, the Jurist doctorate. He is a competition specialist, admitted in Washington, DC and the state of California, where he is currently residing and working from downtown Los Angeles, and I think living in Pasadena. Not a bad gig.
Michael P.A. Cohen:
He's here today to follow up with me on episode 116, which I think Bill recorded together sometime in the late winter or early spring or perhaps mid-winter. Let's just say, it was some time ago. And for our listeners who may not have any idea what we're talking about in episode 116, I'll do a little staging for you. In episode 116, Bill and I really talked about two issues. First, we talked about this seemingly critical mass and critical urgency at the time by the United States Congress to completely revamp its 131 year old competition statutes, which have otherwise never been changed, only amended to create private rights of action and a merger review scheme, but the language of those statutes has not changed since 1890. And it has developed a body of common law in America to adapt to industrial policy over time and served the nation competently in all of those areas.
Michael P.A. Cohen:
And the second issue that Bill and I talked about was this notion of dominance or monopoly with respect to big tech platforms. And I think at the time I cited actual economic facts, by the way, from the Economist, the publication that tended to negate a notion of market power, pricing power, the antitrust statutes in America are consumer welfare statutes and there is little evidence of consumer harm. I received irate emails from radical people who chastised me for taking big tech's position on this. And I wasn't taking anybody's position on it. I was just actually taking a view of the law and underpinnings of the policy of that law in America and trying to make the point that I thought the debate was misapplied.
Michael P.A. Cohen:
What people are really concerned about are censorship and control of public opinion and other things that have absolutely nothing to do with the economic policy underpinnings of the current antitrust laws. And some time has passed, so I invited Bill back on the show to tell us a little bit about what is happening with the American Congress in this arena. Bill, probably talked a little bit too long without the basic courtesy of welcoming you back to the podcast. Welcome back to the show. It's so good to have you.
Bill Margeson:
Yeah, it's great to be back. Thanks for having me on again.
Michael P.A. Cohen:
I'm really thrilled that you could make some time to get back together for a conversation, of which I'll no doubt get a bunch of irate emails from, I'll call them radicalized idiots, and I'll use that term idiot just to mean that they're talking about something that I'm not. Meaning, that they don't even understand the basic underpinnings of the conversation, which I think is the definition of idiot, but there are probably other definitions and we need not get into that here today.
Michael P.A. Cohen:
So Bill, back when we talked before, all this legislation was coming out in Congress. It was a hot debate. It was in the Wall Street Journal, New York Times, Financial Times, Washington Post, LA Times, I could go on. I'm emitting world newspapers, but candidly, during this pandemic, I haven't been able to get around the world and see the news from the vantage point outside of America, something that has greatly impacted, I think, my own vision of these things. But in the Americaphobe environment, it was a hot topic. So I thought maybe we'd just start our conversation today by asking you to give us a current slate. What's happened since our last show with respect to all of this, must pass a reform to laws that have otherwise held sufficient for 131 years?
Bill Margeson:
Right. Yeah. There recently have been quite a few developments on the legislative front. I think when we spoke last, we were anticipating that representative Cicilline, who sits on the House antitrust subcommittee, would put out some legislation built on the foundation of the report that the subcommittee published at the end of 2020, looking at digital markets, and in particular Apple, Amazon, Facebook.
Michael P.A. Cohen:
The big American tech companies. Apple, Google, Amazon, Facebook and Microsoft.
Bill Margeson:
Yeah. That happened. Cicilline introduced, along with some of his allies on the antitrust subcommittee, including representative Ken Buck, but who is a Republican from Colorado, and really a key ally and a key element of the bipartisan team behind antitrust reform in the House. Introduced a slate of six Bills. And in June the committee discussed those and approved them. In each of the votes, the committee approved the legislative proposals with bipartisan support. So that was a big event and now the legislative process moves forward. And so the question is, how will the Bills change, if at all, between now and when they are brought to the floor of the House for the consideration of the House, if they change at all.
Michael P.A. Cohen:
Got it. And is there a process and a timeline for all of that, Bill? How does that play out? These are now out of and have passed the antitrust subcommittee, which I think is a subcommittee of the House judiciary committee if I'm not mistaken.
Bill Margeson:
Yeah.
Michael P.A. Cohen:
What happens from here?
Bill Margeson:
What happens from here, at this point, the leadership, and in particular, Nancy Pelosi, is in the driver's seat, so to speak. And the leadership can decide at a certain point to bring the legislation to the floor. However, some divisions, some cracks, in the coalitions appeared while the subcommittee was debating the legislation. And so it's likely that between now and when the legislation is brought to the floor, if it is, there will be some work-shopping, some changes that are introduced. And the timeline for that is uncertain.
Michael P.A. Cohen:
That's super important. Talk to us a little bit about the cracks or the fissions that emerged, in California terms, the seismic activity, I guess. And I don't mean it in a grandiose way. I just mean that the earth shifts a lot when you live on Sandstone, at the edge of the Pacific ocean and two tectonic plates that are still shoving up against each other, growing the Sierra Mountain Range. So tell us about these cracks, if you will, the term you used. What's the debate around them? What have we heard since, from a policy standpoint? Where are people lining up?
Bill Margeson:
One of the more interesting developments that occurred as the committee was debating the legislative proposals, was the splintering of the democratic coalition. The Democrats on the antitrust subcommittee, and they split along a geographical line in representative Zoe Lofgren from California, along with some other Democrats from the bay area whose constituencies include or run through people whose livelihoods rely on the tech companies in Silicon valley. So Lofgren, Eric Swalwell and Lou Correa among others, emerged as opponents of the legislation and voted against advancing many of the policy changes. And not only that, Lofgren, for example, attacked Cicilline and the process, and has declared that the legislation was badly drafted and that the members responsible for drafting it do not understand tech and not surprisingly, Cicilline has taken umbrage.
Bill Margeson:
There is fighting within the democratic coalition. On the other side, on the Republican side, Ken Buck from Colorado supported the legislation and voted in favor of advancing the Bills. And he was joined in many instances, especially with respect to some of the more controversial Bills, the Bills that would go further in terms of restructuring or even breaking up some of these big tech companies joined by Matt Gates, the Congressperson from Florida, and while Gates and Buck supported some of these Bills, in some cases, helping the Bills advance out of committee in the face of democratic opposition, some Republicans, including notably Jim Jordan, who is the ranking member, the top Republican on the committee, opposed the Bills. Jordan, as he said in an op-ed that he published with Trump's former chief of staff, Mark Meadows, in the days before the committee met, Jim Jordan, cares more about pursuing what he regards as the Conservative bias of big tech. And so the Democratic proposals don't seek to tackle that he regards them as not meeting the moment.
Michael P.A. Cohen:
Why is that an antitrust issue?
Bill Margeson:
Yeah. Well, I think that is exactly consistent with what you were saying earlier. This is not a matter that is within the scope of antitrust law. Now Cicilline on the other hand tries to harness the anger that Conservatives have against big tech by saying that it is an antitrust issue in the sense that if you think that big tech is censoring Conservatives and is biased against Conservatives, then you should care about the amount of power they have. You should support this legislation because it would constrain the exercise of that power and thereby protect Conservatives. But it really is tangential if it's related at all to the core issues that are motivating the policy reform effort.
Michael P.A. Cohen:
Yeah. That's a big deal. And I just want to pause on that for a second, because this does go to the heart of, I think what I was trying to, or had intended to discuss last time around. And it sounds like that schism has only gotten, well, maybe highlighted is a way to put it. The antitrust laws are designed in this country as a check on the private aggregation of economic power. Not political power or media power, other laws are going to address those types of things. Economic power is evidenced in price power, and the ability to control price and output. Plain and simple, and the American law basically says, Hey man, we're not getting involved in the race to win, in an economic sense unless somebody obtains that power and then uses it to exclude rivals. I mean, that's what antitrust laws are about.
Michael P.A. Cohen:
It's not about Conservative bias or Liberal bias. I mean, those things exist in every form of ownership of media or company. Nobody thinks Fox news doesn't have a Conservative bias and nobody thinks that the New York Times doesn't have a Liberal bias. That doesn't mean you break them up, you address those things. Well, speech issues are addressed in different ways and have been addressed in different ways in American history. I mean the FCC, it has traditionally addressed those issues. There have been fairness doctrines and equal time doctrines, the red lion doctrine. I mean the laws applied all kinds of first amendment principles to, I will call it media power, right? But media power is an economic power. And this is important because in the American experience and the American experiment, the goal has been to capitalize dynamic innovation. The answer to somebody who says they can't compete is to do better, to invent something new.
Michael P.A. Cohen:
The answer to somebody who says I can't produce as efficiently as that person is, well, get better at it. Don't come complain to us. We don't regulate those things. We step in when you've been excluded from the opportunity to invent. The opportunity to capitalize, the opportunity to present a new form of constraint, to price power, and output power, market power, power to control prices. And that's critical. A lot of people say, Hey, the reason that you don't see microprocessor companies with European tags on them, or big internet companies with European tags on them or social media companies with European tags on them is that the European competition laws have taken a different approach. They have a different purpose, frankly. It's not that they don't care about consumer welfare, but they have other purposes involved in the notion that prior to the formation of a common economic market, Europe was at war, every day for its entire history.
Michael P.A. Cohen:
So, there are larger things at stake for Europeans when they apply their competition laws. But a lot of people say that level playing field, that fairness concept you see in European competition law, that ethics concept, that concept of special responsibility to rivals once you obtain dominance is what has stifled the innovation in these new economy areas that we see in the 21st century and why Europe doesn't have big global leaders like Asia and America in this field.
Michael P.A. Cohen:
I actually pause it, Bill or ask the question, whether there's some real danger in messing around with the antitrust laws. If the debate is really about something else. If the debate is really about Conservative bias, if the debate is really that, Hey, the tech platforms have banned Trump and kicked off Nazi platforms and that's a violation of free speech or something else. Those are different issues. But man, if you're going to mess around with the American experiment and the ability to capitalize on innovation and capitalize capital markets innovation, that's a hell of a price to pay for what is becoming a political debate, not a debate around the policies of the antitrust laws. So having thrown all that out there, which is a hell of a lot. What's your reaction to any of that?
Bill Margeson:
Well, I think that to some extent, the forces behind antitrust policy reform in the House and the Senate are ignoring the calls from across the aisle to squarely address in an antitrust package issues like the ways through which platforms can censor users. And I think that they've done that at the cost of political support. Perhaps, if the authors of the legislation, including both Democrats and Republicans did really, embrace that as an objective, then they could build a broader coalition, but they've resisted that. And they have tried to maintain the focus on antitrust policy and addressing what they view as problematic acquisitions and monopolistic conduct by big tech companies.
Michael P.A. Cohen:
I think that's a really good square way to put it. And China recently realized its anti-monopoly laws for tech platforms and China has taken a whole bunch of very direct action with respect to its big tech companies, which are actually arguably sometimes, two or three times the size of any of the American companies. What China has done is pull people off the public markets and direct what they can do and what they can't do. And that's very consistent with a nationalized economy that has a different system of government, to protect its public welfare. But it seems to me that the American Congress is arguing for that communist structure of regulation rather than the American experiment that we've lived under, to date. I mean, how is it different? The regulation they're asking for is in many ways to do exactly what China's done. To directly regulate what these platforms can do and how.
Bill Margeson:
Michael, it's interesting. I've seen that emerge, more and more as a critique of the legislative proposals for antitrust reform. There is the sense that just as in China, where the central government is picking winners and losers, the United States Congress has decided to go after these big tech platforms and they're targeting them and they're trying to bring them down. I mean, the legislative proposals are very specifically targeted and would apply most likely only to these big tech platforms. So there is this sense that on the side that opposes these proposals, that Congress is picking winners and losers and it's giving too much power and authority to the Biden administration, to the federal government. And, that's not what America is about.
Michael P.A. Cohen:
Well, traditional notions of liberty. We're all about restricting the government's ability to make choices for us. And, I see particularly libertarians on the Right, arguing for just that. For the government to pick winners and losers. I mean, that's just not how all of this happened. It's not how we got here. It's doubtful we'd be here, if it weren't for the American tech companies, having marketplace and economic freedoms and economic liberties built into the fabric and not only of this country, but it's very constitution. I mean, what you're describing to me is a backdoor in some senses, which I'm not going to get into whether that is a constitutional violation here or not, because that would be a great debate that goes well beyond the antitrust issue, but there isn't an antitrust issue here. There's a political issue here and my way of looking at it, and the answer is market regulation, like a communist form of government is doing.
Michael P.A. Cohen:
And by the way, I don't say that communist form of government in some disparaging way, the fact of the matter is that China's form of communism manages the general welfare for a population that is five times the size of the United States. And it appears to be doing a better job of it on hold. Now somebody could point to this violation or that violation, or what's happening here, what's happening there. But I could point to the fact that we locked kids in a prison for two years and all kinds of atrocities happen under our immigration policies. America's not a model of good behavior when it comes to all of these things. I think it generally does better on freedom and expression and economic liberty than many countries, but it is by no means a Saint, but the system is the system.
Michael P.A. Cohen:
And so that's why I think this debate is a false debate. It's dishonest. If you want to advocate for state regulation and nationalized policy, then call it what it is, but don't frame it under, there's a deficiency in America's economic policy and the courts have utterly failed, which is what the debate is about right now. And I just think that's bullshit. I just think that's dodging the issue. It's not squarely addressing what you want to do, and it's not squarely addressing the issue that's before you. When Roosevelt took on JP Morgan, there was absolutely a notion in American history at that point in time that the economic power the trusts had acquired, particularly the trust over transportation, freight and oil was creating political corruption that threatened political notions, but there was an economic issue underlying it.
Michael P.A. Cohen:
There was actual market power and an actual stifling of innovation and a dagger, if you will, in the American experiment and the opportunity. And so the antitrust laws were not applied out of context or revised. They were actually applied to the violation that it occurred, and it did actually remedy the economic power. What I'm really asking here is where's the economic power? I don't see it, and I'm not alone. This isn't just some voice in the wilderness. A judge just threw the Facebook case out and said the United States government in the one year that it had, couldn't even come up with an articulation of a violation or economic power in any particular market in the Facebook case. And the government has gone at it again and we'll see what happens, but my God, the United States government in 18 months could not, in a single piece of paper, articulate a notion of economic power that would violate the antitrust laws.
Michael P.A. Cohen:
That is not what happened in the original application of antitrust that threatened to corrupt politics before. This is a debate to me over bitterness about whose voice gets heard and whether it should be heard and how it's heard, and that doesn't have anything to do with economic power. That's a different debate. So square up and say what you want, which is you want your side to control that debate. Whether it's Republican or Democrat, you want your side. What you're really aggrieved by is that the market doesn't react necessarily to information the way you'd like them to. So, that's the debate. There's a debate about the obfuscation of your ability to express yourself effectively, politically, but hell man, we've had big media in this. I mean, before the internet and before these platforms like social media, nobody, other than a handful of newspapers could express their opinion in any way.
Bill Margeson:
It's interesting. When the decision came down, throwing out the Facebook case, the advocates for reform like Cicilline and representative Nadler from New York, who's also on the antitrust subcommittee and Sheriff's judiciary committee, they pointed to that decision and said see, this is why we need to pass these laws because there's an incongruence between tech companies and existing law. And so they will want to change how we think about market power because Facebook and Google present different cases and are engaged in conduct that wasn't really contemplated 100 years ago.
Michael P.A. Cohen:
That's what I think is dangerous, because if you do that now, you're talking about federal market intervention in a way that is completely antithetical to the American experiment. You are literally talking about the government stepping in and saying who wins and who loses at a time where no one even knows what that's going to be. Apple was founded in 1976, man. It's like one of the old guys, and if you look at its global market shares, they're not high. Android came out of nowhere and was a more than a sufficient competitor to the Apple operating system and including the mobile phone operating system. And in fact it is the largest. I think it has 73% of all users. I think if my statistics are correct somewhere near three billion people use Android systems, and not Apple systems and put some perspective on that. That's nearly 40% of the entire population of the planet.
Michael P.A. Cohen:
What market power does Apple have in that context? And I frankly don't think Android would say they have any either because they operate as constraints against each other. And there are new operating systems coming up all the time. The company that we all call MI, which is, Xiaomi, rose on the Hong Kong stock exchange in 2010 from thin air. And it's now the largest cell phone manufacturer or mobile phone manufacturer in the world. Technology markets change dramatically in short periods of time. There are just wholesale switches to new innovations, and to the extent that the American government is now going to get into the race and say who can win and who can lose and how, for reasons that have nothing to do with harm to consumers, that is a big deal.
Michael P.A. Cohen:
And where does it stop? Start here, but why just big tech, there's all kinds of platforms. There's all kinds of business to business platforms that aren't so quote unquote, big tech, consumer facing platforms that would be no different. Read the American express case from the Supreme court. It talks about the danger of doing this. So this is interesting. I mean, I think in the short time we've had already, we've fleshed out one thing. And I mean somebody can convince me otherwise, but I think we've fleshed out that this is not an antitrust debate. This is a debate about something else. We're starting to see that in the reaction. Tell me a little bit about that, in the policy arena, there's lots of voices. We've talked about Congress, but where are the special interest groups coming out on this? Where are we hearing voices about all of this generally, to the extent you have any sketch of that Bill?
Bill Margeson:
Yeah. There are advocacy groups, nonprofits that are Democratic leaning on the Left that are in favor of groups like public knowledge, public citizens, who think that these tech platforms have acquired so much power and have gone unscathed for so long, that radical action is necessary. The view is that there must be a transformation of the law and the House legislation certainly delivers that transformation. On the other hand, there are groups that are strongly opposing the legislation, for example, like Chamber of Progress, for example, which, or Our Streets. They're submitting letters to members of Congress. One thing they're doing is pointing out that some of the services and products and customer experiences that would be banned or made unlawful by this legislation are products and services that consumers, that Americans really like and value. One product that comes up all the time in these debates is the batteries that you can get from Amazon basics.
Bill Margeson:
So Amazon has its own line of batteries that it sells on Amazon. If the legislation passes, Amazon would not be able to do that. And then people who really like getting their batteries from Amazon and Amazon basics batteries in particular, wouldn't be able to do that. And, they're pointing to other things like Apple music, Apple has its own music. Google has Google maps and YouTube. And, when someone types in a search term, Google's engine will return results that highlight Google maps and YouTube and people really like that. I mean, I certainly appreciate that. The warning that this might all be made unlawful and that consumers will be worse off in the end. And then you also have big tech.
Michael P.A. Cohen:
Our Street's a Conservative public interest group. Just to put that out.
Bill Margeson:
These are more Conservative leaning groups.
Michael P.A. Cohen:
Well, it seems that there's fissures then in the Republican side of the bipartisan attack on big tech as well, meaning-
Bill Margeson:
Oh yeah, definitely
Michael P.A. Cohen:
Fissures in the Republican party, period. Many people have left it. Our street is a traditional Republican public interest group in favor of free market principles, rather than a nationalized approach to the economy. I find that interesting.
Bill Margeson:
Yeah. It might be obvious, but big tech is investing a lot of resources in opposing these proposals. For example, it was reported that Tim Cook himself talked with Nancy Pelosi in the days after these Bills in the House were introduced, saying, there were a lot of flaws in them and that they were badly drafted in any event. Big tech is working hard to oppose this and funding a lot of the groups that are public interest groups, the nonprofits that are leveling objections.
Michael P.A. Cohen:
Well, I mean, think about that for a moment, from a national perspective. I mean, when Tim cook wakes up in the morning, I don't know this, but I'm just going to throw a hypothetical scenario out, he thinks about not an American marketplace. He thinks about the world he competes in, and what he probably enjoys is that he's from, or what he may enjoy is that his company, the one he currently runs, I shouldn't say his, but the company he currently runs, enjoys the advantage of being headquartered and home grown from one of the largest markets in the world. But by no means the largest and one when others are combined is a formidable challenge to compete in. I mean, Apple has a very different landscape in competing in Europe and in Asia than it does in America, where it does enjoy a slight edge over Android, I think 52% to 48% in iOS distributions.
Michael P.A. Cohen:
And so, when you talk now about taking away the things that Americans value in his products, and then he has to now go out and compete in the rest of the world without the advantages of the things that Apple has produced in America to sell. That's a pretty ugly scenario for Americans and for an American company on a multinational front. That's starting to look a lot like the shadows and dangers of government regulation versus what I'll continue to call the American economic experiment, which is heroically different than I think any period of history we can see in the world. That's why I think there's danger here. I mean, the government's going to get into what features I can have when I search on the search engine. Are you kidding me? If there were an antitrust impact to this consumer welfare there, then I understand applying the antitrust laws.
Michael P.A. Cohen:
But if there is no consumer welfare issue, this is not an antitrust issue. You ought to be passing different legislation and see if it passes muster under the first amendment versus the interstate commerce clause. That's what I really, the more I discuss this with folks, the more irritated I get because the American Congress is being, I think, very dishonest in its approach to this discussion and conversation. I'm concerned about something else. And it's trying to punish companies in a way that they shouldn't be punished, at least under notions that are it with 200 years of American economic policy, 200 plus years of American economic policy.
Michael P.A. Cohen:
And you're failing to own up to what you're really doing because framed in its appropriate light, you start to look a lot more like what China does or what Europe does. And I think people are trying to hide behind the antitrust cloth or a problem that they want to solve differently. It's interesting to me that we're seeing some voices from the other side, starting to call that out. Where do you think all this is headed, Bill? I mean no one can predict the next minute, let alone the next century or the next decade, but does this legislation have a long way to go, or are we at some tipping edge where there's going to be some cascade and antitrust and some landmark change to the nation's competition policy?
Bill Margeson:
Right. I think there are six Bills in play. Six Bills that were approved by the judiciary committee. And two of them, I think, have a fairly fast track to the extent that people are focused on them becoming law. They are the less controversial Bills. They would, for example, modify just HSR filing fees and increase funding to the FTC and DOJ. That's one. And the other relates to a very, I guess, obscure to the average listener, area of law. It would effectively make it more difficult to prevent antitrust defendants from obtaining a venue transfer in cases brought by the State attorney's general.
Bill Margeson:
So, those two have an easy path, but the other four, the four that are more controversial that would essentially ban huge companies like Facebook from making certain acquisitions and the Bills that would make it unlawful for platform owners to favor or give an advantage to their own products. Those Bills are probably a long way from being passed, especially with almost all of the California delegation or a significant portion very opposed. The Democrats have a thin majority in the House. And if a big faction of that majority is opposed to the legislation then without a huge amount of Republican support, they couldn't get it through. So I think there's a lot more work to be done.
Michael P.A. Cohen:
Yeah. How many representatives are from California? I'm not asking you to come up with that, but let's just put it this way. It's a 1/10th of the nation's population in a single state. So there's probably a proportionate number of Congress that represents about 10% of the American Congress as well.
Bill Margeson:
Yeah. There are a lot. Like dozens and yeah.
Michael P.A. Cohen:
Well, that's really interesting. Bill, what else do we need to know? I've had you a long time and I've probably used our conversation more as my own soap box on this issue. Because as soon as I heard certain trigger points that I think sent me in a direction as usual, I couldn't help myself but go down. And if I am distracted from other points that we wanted to discuss, I regret that we probably won't have time to get back to them today, but I do want to make sure I come back to any big highlights that we need to know about. What do you think we may not have covered in our back and forth?
Bill Margeson:
Well, I think we've covered a lot. I think we hit the main themes as to what's going on in Congress right now. There's legislation in the Senate that was introduced by Klobuchar. That is significant, but perhaps doesn't go quite as far or is not as transformative as some of the legislation proposed in the House. As far as I can tell, there hasn't been any really significant progress in the Senate on those Bills. I will note that one of the Bills that was proposed in the Senate, or I'm sorry, in the House, the one relating to merger filing fees that I mentioned as having an easy path, was actually already passed in the Senate as part of this trade Bill that also was intended to improve US competitiveness. So, if the House approves it, it goes to Biden for signature. Yeah. That's about the only thing on my list that I missed.
Michael P.A. Cohen:
And that probably will get approved. I mean, there is going to be some HSR change and for folks around the planet, that's Hart-Scott-Rodino act, which sets large portions of the merger review scheme in the United States federal arena. And remind us Bill, what that HSR change is on that legislation?
Bill Margeson:
For really big mergers. It increases the filing fee substantially. For really small mergers or for smaller mergers or acquisitions, it actually lowers the fee. And it also, this is separate, but it's a part of the same legislation. It would boost the budgets of the FTC and the DOJ antitrust division.
Michael P.A. Cohen:
So, there's no substantive change there. It's a finance change to increase and perhaps a long overdue adjustment to a balanced budget dedicated to the enforcement agencies that do tend to be understaffed with really hard working, smart people doing double time for a lot less money than the rest of the world. So that sounds long overdue and non-controversial, but also good to know. Thanks for that. And thanks for the conversation, as always, reframing where we are in the great American antitrust debate, I guess in the end of the third and beginning of the fourth quarter of 2021, versus where we started. I sense Bill, from the big picture standpoint that although these things got out of subcommittee pretty quickly, they've stalled because a lot of people have weighed in and said, whoa, you're talking about a lot more than we thought you were talking about when we started, you're talking about a wholesale change to American economic philosophy. And-
Bill Margeson:
Yeah, I think you're right, Michael. Yeah.
Michael P.A. Cohen:
So maybe the conversation we had back in episode 116 wasn't so off the mark, maybe it was a little ahead of it. Who knows? Always good to see you. Thank you so much for being on the note of any podcast.
Bill Margeson:
Thanks for having me
Michael P.A. Cohen:
Well, that's it for this week folks. Next week, we get to turn our attention to something I'm super excited to hear about, and that is green hydrogen and a green energy slate of guests who I hope you will all enjoy meeting. I'm certainly looking forward to the show with them. As always until then. Be well.
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Bill Margeson
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