[Congressional Record Volume 151, Number 137 (Tuesday, October 25, 2005)]
[Senate]
[Page S11850]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ANTITRUST CRIMINAL INVESTIGATIVE IMPROVEMENTS ACT OF 2005
Mr. FRIST. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 250, S. 443.
The PRESIDING OFFICER. The clerk will report the bill by title.
The assistant legislative clerk read as follows:
A bill (S. 443) to improve the investigation of criminal
antitrust offenses.
There being no objection, the Senate proceeded to consider the bill.
Mr. KOHL. Mr. President, I rise in support of the Antitrust
Investigative Improvements Act of 2005, a bill I am cosponsoring with
Senators DeWine and Leahy. This important measure will give the
antitrust criminal enforcers at the Department of Justice a vital tool
to investigate, detect, and prevent antitrust conspiracies. It will
allow the Justice Department, upon a showing of probable cause to a
Federal judge, authority to obtain a wiretap order for a limited time
period to monitor communications between those suspected of engaging in
illegal antitrust conspiracies.
The current Federal criminal code lists over 150 predicate offenses
for which the Justice Department may obtain a wiretap during the course
of a criminal investigation. These offenses include basic white collar
crimes such as mail fraud, wire fraud, and bank fraud. However, under
current law, if the Government is investigating a criminal antitrust
conspiracy, such as a scheme to fix prices to consumers, the Government
cannot obtain a wiretap of the suspected conspirators. This inability
to obtain wiretaps unquestionably severely handicaps the detection and
prevention of such conspiracies. Only with the consent of a member of
the conspiracy who has already agreed to cooperate with the Government
may the Government surreptitiously record the meetings of the
conspirators.
There is no logical basis to exclude criminal antitrust violations
from the list of predicate offenses for a wiretap. A criminal antitrust
offense, such as price fixing, is every bit as serious--and causes
every bit as much financial loss to its victims--as other white collar
crimes, such as mail fraud or wire fraud. A price-fixing conspiracy
raises prices to consumers, stealing hard earned dollars from citizens
as surely as does a salesman promoting a bogus investment from a
``boiler room'' or, indeed, a thief with a gun. Moreover, by its secret
nature as an agreement among competitors, such a conspiracy is likely
harder to detect than a fraudulent offering over the phone or through
the mail. A properly issued wiretap, therefore, is even more necessary
to detect criminal antitrust conspiracies than other white collar
offenses.
Detecting, preventing, and punishing criminal antitrust offenses are
one of the principal missions of the Justice Department's Antitrust
Division. Such offenses are punished severely with corporations facing
fines of up to $100 million and individuals subject to jail terms of up
to 10 years for each offense. Indeed, last year we passed legislation
raising criminal penalties to these new levels. Yet, despite the damage
these conspiracies do to the economy and individual consumers, our law
enforcement agencies lack the one vital tool essential to uncover these
secret conspiracies--the ability to obtain a wiretap to monitor
communications between the suspected conspirators upon a showing of
probable cause. This legislation will remedy this defect by granting to
our law enforcement officials the necessary means to protect consumers
and end illegal antitrust conspiracies.
I urge my colleagues to join with me in supporting this legislation.
Mr. LEAHY. Mr. President, earlier this year I was pleased to join the
chairman and ranking member of the Judiciary Committee's Subcommittee
on Antitrust, Competition Policy and Consumer Rights, Senators DeWine
and Kohl, on the introduction of the ``Antitrust Criminal Investigative
Improvements Act of 2005, ACIIA. Today, I am even more pleased to see
the Senate pass this bill. This is important legislation, and I hope
that it will receive the speedy vote in the House of Representatives
that it deserves. Once the President signs it into law, the Department
of Justice will finally have another vital tool to enforce antitrust
laws--wiretap authority to investigate and prosecute criminal antitrust
violations.
America's antitrust laws play a critical role in protecting consumers
and ensuring a fair and competitive marketplace for business.
Congress's first antitrust law, the Sherman Antitrust Law, was enacted
in 1890 to prohibit abusive monopolies and restraints of trade. Since
that time, enforcement of the antitrust laws has benefited consumers
through lower prices, greater variety, and higher quality products and
services. But antitrust criminal offenses have been somewhat anomalous
in the law, for they have not qualified for judicially approved
wiretaps. The ACIIA will add criminal price fixing and bid rigging to
the many crimes that are already ``predicate offenses'' for wiretap
purposes. There are over 150 offenses that currently qualify for
judicial approved wiretaps. These ``predicate offenses'' under Title
III of the Omnibus Crime Control and Safe Streets Act, include crimes
of lesser impact and significance than criminal antitrust violations.
The ACIIA will ensure that the Department of Justice has the tools
commensurate with the seriousness of the violations.
Under current law, the Department of Justice must often rely on the
FBI or other investigative agencies to obtain evidence. 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. In light of the seriousness of
economic harms caused by violations of the Sherman Antitrust Act, the
inability of the Department of Justice to obtain wiretaps when
investigating criminal antitrust violations makes little sense. 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 the opportunity to
zealously enforce the criminal antitrust laws of the United States.
Mr. FRIST. Mr. President, I ask unanimous consent that the bill be
read a third time and passed, the motion to reconsider be laid upon the
table, and that any statements relating to the bill be printed in the
Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 443) was read the third time and passed, as follows:
S. 443
Be it enacted by the Senate and House of Representative of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Antitrust Criminal
Investigative Improvements Act of 2005''.
SEC. 2. AMENDMENT OF PREDICATE CRIMES FOR AUTHORIZATION FOR
INTERCEPTION OF WIRE, ORAL, AND ELECTRONIC
COMMUNICATIONS.
Section 2516(1) of title 18, United State Code, is
amended--
(1) in subparagraph (q), by striking ``or'' after the
semicolon;
(2) by redesignating subparagraph (r) as subparagraph (s);
and
(3) by adding after subparagraph (q) the following:
``(r) any criminal violation of section 1 (relating to
illegal restraints of trade or commerce), 2 (relating to
illegal monopolizing of trade or commerce), or 3 (relating to
illegal restraints of trade or commerce in territories or the
District of Columbia) of the Sherman Act (15 U.S.C. 1, 2, 3);
or''.
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