[Congressional Record Volume 149, Number 154 (Wednesday, October 29, 2003)]
[Senate]
[Page S13520]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DEWINE (for himself and Mr. Kohl):
  S. 1797. A bill to implement antitrust enforcement enhancements and 
cooperation incentives; to the Committee on the Judiciary.
  Mr. KOHL. Mr. President, I rise today, with my colleague Senator 
DeWine, to introduce the ``Antitrust Criminal Penalty Enhancement and 
Reform Act of 2003.'' This important bipartisan antitrust reform bill 
will strengthen the procedures under which antitrust settlements are 
reviewed by the courts, will increase criminal penalties for the most 
egregious antitrust violations, and will enhance the Justice 
Department's existing leniency program to encourage more antitrust 
criminal wrongdoers to come forward and thereby significantly assist 
the Department in detecting and preventing antitrust conspiracies.
  This bill will accomplish three important goals. First, it will 
strengthen the review of the Justice Department's civil antitrust 
settlements under the Tunney Act. The Tunney Act is an important 
statute, passed nearly thirty years ago, that insures the public 
interest and consumers are protected when the Justice Department 
settles civil antitrust cases. The Tunney Act requires that, before 
entering any proposed consent judgment proposed by the Justice 
Department, the court must determine that the judgment is in the public 
interest. The statute also contains strict procedures for the public 
disclosure of proposed antitrust consent decrees and an opportunity for 
public comment.
  The Tunney Act was passed in 1974 in response to concerns that some 
Justice Department settlements were motivated by inappropriate 
political pressure and were simply inadequate to restore competition or 
protect consumers. Congress concluded that review by the district 
courts to be an essential safeguard to deter the Justice Department 
from settling cases without regard for the public interest or the 
interest of affected consumers. The Tunney Act was enacted to end the 
then-prevalent practice of district judges ``rubber stamping'' 
antitrust consent decrees.
  Unfortunately, in recent years, many courts--including specifically 
the U.S. Court of Appeals for the District of Columbia Circuit--have 
misconstrued the plain meaning of the Tunney Act and have returned to 
the practice of ``rubber stamp'' review of antitrust settlements. The 
controlling precedent in the D.C. Circuit is now that trial courts must 
enter antitrust consent decrees as long as they do not make a ``mockery 
of the judicial power.'' This standard is contrary to the intent of the 
Tunney Act and effectively strips the courts of the ability to engage 
in meaningful review of antitrust settlements.
  Our bill will restore the original intent of the Tunney Act by First, 
providing that courts are to independently determine that antitrust 
settlements are in the public interest, second, setting forth a 
specific list of factors that a court must examine in the course of its 
public interest review--rather than may consider as the statute is 
currently written, and third, requiring the government establish that 
substantial evidence and reasoned analysis supports the government's 
belief that the consent judgment is in the public interest. These 
provisions will make clear that the court has the authority to conduct 
a meaningful review to ensure that antitrust settlements are not 
contrary to the public interest, or to competition.
  Second, the bill will enhance criminal penalties for those who 
violate our antitrust laws. It will increase the maximum corporate 
penalty from $10 to $100 million, will increase the maximum individual 
fine from $350,000 to $1 million, and increase the maximum jail term 
for individuals who are convicted of criminal antitrust violations from 
three to ten years. These changes will send the proper message that 
criminal antitrust violations--crimes such as price fixing and bid 
rigging--committed by business executives in a boardroom are serious 
offense that steal from American consumers just as effectively as does 
a street criminal with a gun. We have all learned through unfortunate 
experience in the last few years at some of our largest at most 
respected corporations the serious consequences of crime in the 
boardroom, with literally tens of millions of dollars being looted from 
shareholders. These examples of corporate malfeasance teach us that 
criminal sanctions for white collar crime must be serious enough to 
deter such misbehavior, and our bill will help ensure our antitrust 
penalties are strong enough to accomplish this mission.
  Finally, this bill will give the Justice Department significant new 
tools under its antitrust leniency program. The leniency program 
rewards the first member of a criminal antitrust conspiracy to admit 
its crime to the Justice Department by granting the wrongdoer criminal 
amnesty. This is an important tool for law enforcement officials to 
detect and break up cartels that fix prices and limit supply in our 
economy. This new provision will give the Justice Department the 
ability to offer those applying for leniency the additional reward of 
only facing actual damages in civil suits arising out of the antitrust 
conspiracy, rather than the treble damage liability to which they would 
otherwise be subject. This statutory change will remove a significant 
disincentive to those who would be likely to seek criminal amnesty and 
should result in a substantial increase in the number of antitrust 
conspiracies being detected.
  Each of these three reforms are important measures will significantly 
enhance the enforcement of our nation's antitrust laws. I urge my 
colleagues to support this important measure.

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