[Congressional Record Volume 151, Number 18 (Thursday, February 17, 2005)]
[Senate]
[Pages S1656-S1657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DeWINE (for himself, Mr. Kohl, and Mr. Leahy):
  S. 443. A bill to improve the investigation of criminal antitrust 
offenses; to the Committee on the Judiciary.
  Mr. DeWINE. Mr. President, I rise today, along with my colleagues 
Senators Kohl and Leahy, to introduce the Antitrust Investigative 
Improvements Act of 2005. We do so to strengthen the Department of 
Justice's ability to investigate criminal antitrust conspiracies. This 
bill gives the Department of Justice authority to seek a wiretap order 
from a Federal judge, for a limited time period, to monitor 
communications between antitrust conspirators.
  Investigating and prosecuting criminal antitrust conspiracies, such 
as cartels and bid-rigging, is the core mission of the Department of 
Justice's Antitrust Division. Because of the harm this behavior can do 
to the economy and to innocent consumers, Assistant Attorney General 
for the Antitrust Division, Hewitt Pate, has said that prosecuting 
``cartels remain[s] our top enforcement priority at the Antitrust 
Division.'' As a result, in the United States, we punish such illegal 
behavior harshly. Corporations can be fined up to $100 million and 
individuals can be fined up to $1 million and be incarcerated for 10 
years. But, despite the high priority the Antitrust Division places on 
these cases and the tough penalties under the law, up to now, we have 
not given the Department of Justice all the tools it needs to 
investigate and prosecute criminal antitrust conspiracies.
  In criminal antitrust investigations, to prosecute a case, it is 
critical that prosecutors gain access to evidence on the inner workings 
of the conspiracy. To meet their heavy burden of proof, prosecutors 
must marshal strong evidence showing, for example, the terms of the 
illegal agreement, the participants in the illegal agreement, and 
precisely when the illegal agreement was reached. This type of evidence 
is extremely difficult to gain without penetrating the inner workings 
of the conspiracy.
  The Department has principally two techniques for investigating 
criminal antitrust enterprises. First, it may enlist the cooperation of 
a witness. The

[[Page S1657]]

cooperating witness may be, for example, a customer being harmed by the 
conspiracy or a co-conspirator to the antitrust crime. Under this 
approach, a cooperating witness may testify about the details of the 
conspiracy or may record conversations with the conspirators, either 
through videotape or audiotape. One important restriction is that the 
cooperating witness must be present at the conversation when recording. 
But, if the Department cannot secure a cooperating witness, which is 
often the case, this technique is not available.
  Second, the Antitrust Division also has a corporate leniency program, 
which has been very successful in investigating and prosecuting 
criminal antitrust conspiracies. In exchange for fully cooperating with 
an antitrust investigation, an otherwise guilty corporation may receive 
lenient treatment. But, this method, too, depends on the cooperation of 
one who was on the inside of the criminal conspiracy.
  Our bill adds a third technique by amending Title III of the Omnibus 
Crime Control and Safe Streets Act (18 U.S.C. Section 2510 et seq.) to 
make a criminal violation of the Sherman Act a ``predicate offense'' 
for an order authorizing the interception of wire or oral 
communications, hereinafter ``wiretap order''. Amending this law to 
make criminal antitrust offenses a predicate offense would give the 
Department of Justice a much needed tool to investigate the inner 
workings of criminal antitrust conspiracies. Unlike using a cooperating 
witness or the corporate leniency program, a wiretap order does not 
require the cooperation of someone who has inside knowledge of the 
conspiracy or who is actually participating in the conspiracy. Upon a 
showing of probable cause to a Federal judge, the Department of Justice 
could obtain a wiretap order, for a limited time period, to monitor 
communications between conspirators.
  There are over 150 predicate offenses from title 18 and dozens of 
other predicate offenses from other parts of the U.S. Criminal Code. 
Offenses, such as wire fraud, mail fraud, and bank fraud are predicate 
offenses, but up to now, criminal antitrust offenses have not been on 
the list. I think this is a mistake. Criminal antitrust offenses are 
basically white-collar, fraud offenses, and often do much more harm to 
innocent consumers than other types of fraud offenses. It is time for 
antitrust to be added as a predicate offense, given the gravity of the 
crime.
  This idea is not new. Past Assistant Attorney Generals of the 
Antitrust Division have supported the idea for such legislation. And, 
in 1999, our neighbor to the north, Canada, passed similar legislation. 
It is an idea whose time has come.
  I urge my colleagues to support this important reform to strengthen 
the enforcement of our antitrust laws. I ask unanimous consent to print 
the bill in the Record.
  Mr. LEAHY. Mr. President, America's antitrust laws play a vital role 
in protecting consumers and ensuring a competitive marketplace for 
business. The vigorous enforcement of these laws also helps promote and 
maintain the efficiency of our markets by promoting competition, 
innovation, and technological development. Today, I am pleased to join 
Senator Kohl and Senator DeWine in introducing the Antitrust Criminal 
Investigative Improvements Act of 2005, legislation that will provide 
the Department of Justice with long overdue authority in investigating 
and prosecuting criminal antitrust violations.
  Congress acted in 1890 with passage of the Sherman Antitrust Act to 
prohibit abusive monopolization and anticompetitive practices. Since 
that time, the Department of Justice's enforcement efforts have 
benefited consumers in terms of lower prices, greater variety, and 
higher quality of products and services. Despite the value and impact 
of criminal antitrust cases, however, criminal antitrust investigations 
do not currently qualify for judicially approved wiretaps. While the 
Justice Department may engage in court-authorized searches of business 
records, it may only monitor phone calls of informants or the 
conversations of consenting parties.
  The Antitrust Criminal Investigative Improvements Act of 2005 will 
add criminal price fixing and bid rigging to the many crimes that are 
already ``predicate offenses'' for wiretap purposes. More than 150 
``predicate offenses'' are currently included in Title III of the 
Omnibus Crime Control and Safe Streets Act, including crimes of lesser 
impact and significance than criminal antitrust violations. In light of 
the seriousness of economic harms caused by violations of the Sherman 
Antitrust Act, the inability of the Justice Department to obtain 
wiretaps when investigating criminal antitrust violations makes little 
sense. Moreover, the evidence that can be acquired through wiretaps is 
precisely the type of evidence that is essential for the successful 
prosecution and prevention of serious antitrust violations. This bill 
equips the Department of Justice investigators and prosecutors to 
enforce zealously the criminal antitrust laws of the United States.
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