[Congressional Record Volume 162, Number 46 (Wednesday, March 23, 2016)]
[House]
[Pages H1560-H1569]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




STANDARD MERGER AND ACQUISITION REVIEWS THROUGH EQUAL RULES ACT OF 2015

  Mr. GOODLATTE. Mr. Speaker, pursuant to House Resolution 653, I call 
up the bill (H.R. 2745) to amend the Clayton Act and the Federal Trade 
Commission Act to provide that the Federal Trade Commission shall 
exercise authority with respect to mergers only under the Clayton Act 
and only in the same procedural manner as the Attorney General 
exercises such authority, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 653, the bill 
is considered read.
  The text of the bill is as follows:

                               H.R. 2745

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Standard Merger and 
     Acquisition Reviews Through Equal Rules Act of 2015''.

     SEC. 2. AMENDMENTS TO THE CLAYTON ACT.

       The Clayton Act (15 U.S.C. 12 et seq.) is amended--
       (1) by striking section 4F and inserting the following:

     ``SEC. 4F. ACTIONS BY ATTORNEY GENERAL OF THE UNITED STATES 
                   OR THE FEDERAL TRADE COMMISSION.

       ``(a) Whenever the Attorney General of the United States 
     has brought an action under the antitrust laws or the Federal 
     Trade Commission has brought an action under section 7, and 
     the Attorney General or Federal Trade Commission, as 
     applicable, has reason to believe that any State attorney 
     general would be entitled to bring an action under this Act 
     based substantially on the same alleged violation of the 
     antitrust laws or section 7, the Attorney General or Federal 
     Trade Commission, as applicable, shall promptly give written 
     notification thereof to such State attorney general.
       ``(b) To assist a State attorney general in evaluating the 
     notice described in subsection (a) or in bringing any action 
     under this Act, the Attorney General of the United States or 
     Federal Trade Commission, as applicable, shall, upon request 
     by such State attorney general, make available to the State 
     attorney general, to the extent permitted by law, any 
     investigative files or other materials which are or may be 
     relevant or material to the actual or potential cause of 
     action under this Act.'';
       (2) in section 5--
       (A) in subsection (a) by inserting ``(including a 
     proceeding brought by the Federal Trade Commission with 
     respect to a violation of section 7)'' after ``United States 
     under the antitrust laws''; and
       (B) in subsection (i) by inserting ``(including a 
     proceeding instituted by the Federal Trade Commission with 
     respect to a violation of section 7)'' after ``antitrust 
     laws'';
       (3) in section 11, by adding at the end the following:
       ``(m)(1) Except as provided in paragraph (2), in enforcing 
     compliance with section 7, the Federal Trade Commission shall 
     enforce compliance with that section in the same manner as 
     the Attorney General in accordance with section 15.
       ``(2) If the Federal Trade Commission approves an agreement 
     with the parties to the transaction that contains a consent 
     order with respect to a violation of section 7, the 
     Commission shall enforce compliance with that section in 
     accordance with this section.'';
       (4) in section 13, by inserting ``(including a suit, 
     action, or proceeding brought by the Federal Trade Commission 
     with respect to a violation of section 7)'' before 
     ``subpoenas''; and
       (5) in section 15, by inserting ``and the duty of the 
     Federal Trade Commission with respect to a violation of 
     section 7,'' after ``General,''.

     SEC. 3. AMENDMENTS TO THE FEDERAL TRADE COMMISSION ACT.

       The Federal Trade Commission Act (15 U.S.C. 41) is 
     amended--
       (1) in section 5(b), by inserting ``(excluding the 
     consummation of a proposed merger, acquisition, joint 
     venture, or similar transaction that is subject to section 7 
     of the Clayton Act (15 U.S.C. 18), except in cases where the 
     Commission approves an agreement with the parties to the 
     transaction that contains a consent order)'' after ``unfair 
     method of competition'';
       (2) in section 9, by inserting after the fourth 
     undesignated paragraph the following:

[[Page H1561]]

       ``Upon the application of the commission with respect to 
     any activity related to the consummation of a proposed 
     merger, acquisition, joint venture, or similar transaction 
     that is subject to section 7 of the Clayton Act (15 U.S.C. 
     18) that may result in any unfair method of competition, the 
     district courts of the United States shall have jurisdiction 
     to issue writs of mandamus commanding any person or 
     corporation to comply with the provisions of this Act or any 
     order of the commission made in pursuance thereof.''.
       (3) in section 13(b)(1), by inserting ``(excluding section 
     7 of the Clayton Act (15 U.S.C. 18) and section 5(a)(1) with 
     respect to the consummation of a proposed merger, 
     acquisition, joint venture, or similar transaction that is 
     subject to section 7 of the Clayton Act (15 U.S.C. 18))'' 
     after ``Commission''; and
       (4) in section 20(c)(1), by inserting ``or under section 7 
     of the Clayton Act (15 U.S.C. 18), where applicable,'' after 
     ``Act,''.

     SEC. 4. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

       (a) Effective Date.--Except as provided in subsection (b), 
     this Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.
       (b) Application of Amendments.--The amendments made by this 
     Act shall not apply to any of the following that occurs 
     before the date of enactment of this Act:
       (1) A violation of section 7 of the Clayton Act (15 U.S.C. 
     18).
       (2) A transaction with respect to which there is compliance 
     with section 7A of the Clayton Act (15 U.S.C. 18a).
       (3) A case in which a preliminary injunction has been filed 
     in a district court of the United States.

  The SPEAKER pro tempore. The bill shall be debatable for 1 hour, 
equally divided and controlled by the chair and ranking minority member 
of the Committee on the Judiciary.
  The gentleman from Virginia (Mr. Goodlatte) and the gentleman from 
Georgia (Mr. Johnson) each will control 30 minutes.
  The Chair recognizes the gentleman from Virginia.


                             General Leave

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days within which to revise and extend their remarks 
and include extraneous materials on H.R. 2745, currently under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, in 1914, Congress passed the Federal Trade Commission 
Act, marking the beginning of a dual antitrust enforcement regime in 
the United States.
  Because both the Department of Justice and the Federal Trade 
Commission enforce our Nation's antitrust laws, companies may and often 
do have different experiences when interacting with one agency relative 
to the other.
  One area in which the disparity can be the most striking and 
troubling is in the merger review process. When a company wishes to 
merge with or purchase another company, it must notify both antitrust 
enforcement agencies of the proposed transaction.
  The Department of Justice and the Federal Trade Commission then 
determine which agency will be responsible for reviewing the 
transaction. As there are no fixed rules for making this determination, 
it can appear that the decision is made on the basis of a flip of the 
coin.
  There are two substantive differences that companies face based on 
the identity of the antitrust enforcement agency that reviews the 
company's proposed transaction.
  The first difference arises if the agency seeks to prevent the 
transaction by pursuing a preliminary injunction in Federal court. A 
different legal standard is applied to a preliminary injunction request 
based solely on the identity of the requesting antitrust enforcement 
agency.
  The second difference lies in the process available to each antitrust 
enforcement agency to prevent a transaction from proceeding. The FTC 
may pursue administrative litigation against a proposed transaction 
even after a court denies its preliminary injunction request. In 
contrast, the Department of Justice cannot pursue administrative 
litigation.
  There is no justification for these disparities in the merger review 
processes and standards. The bipartisan Antitrust Modernization 
Commission recommended that Congress remove these disparities, and the 
bill before us today, the Standard Merger and Acquisition Reviews 
Through Equal Rules Act, or SMARTER Act, does just that.
  I applaud Mr. Farenthold of Texas for introducing this important 
legislation that will enhance the transparency, predictability, and 
credibility of the antitrust merger review process.
  By enacting the SMARTER Act into law, Congress will ensure that 
companies no longer will be subjected to fundamentally different 
processes and standards based on the flip of a coin.
  Notably, the legislation has garnered the support of former and 
current FTC Commissioners, including former Chairman David Clanton, 
former Commissioner Josh Wright, and sitting Commissioner Maureen 
Ohlhausen.
  The SMARTER Act is an important step toward ensuring that our 
Nation's antitrust laws are enforced in a manner that is fair, 
consistent, and predictable.
  Mr. Speaker, I urge my colleagues to vote in favor of this good 
government bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, I rise in strong opposition to the so-called SMARTER 
Act, the Standard Merger and Acquisition Reviews Through Equal Rules 
Act, which really should--I mean, it is a misnomer.
  We should rename this bill. Instead of that, we should rename it the 
Sadly More Acronyms for Really Terrible and Esoteric Requirements Act.

                              {time}  0945

  I know a lot of people around the country are wondering: Well, what 
is this all about? It must be important that they are doing this.
  I will tell you what is important about it. It is a piece of 
legislation that would impact the largest and most consequential of 
corporate mergers, of multinational corporate mergers. Those things 
have to go through a review process with our Federal Trade Commission. 
Also, the Department of Justice has an antitrust division.
  What this piece of legislation would do would be to gut one of the 
agency's--the FTC's--ability to oversee and deal with merger review 
issues that affect the largest and most consequential of their mergers, 
of these big corporate mergers.
  Does this piece of legislation benefit the people? Or does it benefit 
the 1 percent of large multinational corporations that, I guess, need 
help avoiding regulatory authority by our government?
  Well, it looks like that is what it is. It is something that is going 
to help out big business at a time when people in this country are very 
angry about the fact that the playing field is not level. The 
corporations and the wealthy have been doing pretty well over the last 
couple of generations, but people are seeing their wages stand right 
there where they were. They are working harder, they are more 
productive, but yet they can't even take a vacation. They can't even 
afford to take a day off to see about a sick child.
  This is why people are so angry. It is because they look at Congress 
and they see us doing this kind of work benefiting 1 percent of the 
largest multinational corporations when there are other things like 
passing a budget, dealing with the Zika crisis which is unfolding, 
dealing with the Flint water crisis, dealing with the opioid addiction 
crisis in this country.
  We can't even pass a budget. Here we are going to pass the so-called 
SMARTER Act today, and then we are going to go home for almost 3 weeks. 
They call it a district work period, but it is actually a period where 
folks are out campaigning, trying to retain their seats. People are 
angry about that.
  Congress first established the Federal Trade Commission in 1914 to 
safeguard consumers against anticompetitive behavior by empowering the 
Commission with the authority to enforce, clarify, and develop 
antitrust law. President Woodrow Wilson later described the creation of 
the Commission as specifically providing for tribunals that would 
``determine what was fair and what was unfair competition; and to 
supply the business community not merely with lawyers in the Department 
of Justice who could cry, `Stop!', but

[[Page H1562]]

with men in such tribunals as the Federal Trade Commission who could 
say, `Go on,' who could warn where things were going wrong and assist 
instead of check.''
  Today, under the process of administrative litigation, also known as 
part 3 litigation, the Commission does just that. Under this authority, 
it may seek permanent injunctions in its own administrative court in 
addition to its ability to seek preliminary injunctions in Federal 
District Court. This authority is a unique mechanism that takes 
advantage of the Commission's longstanding expertise to develop some of 
the most complex issues in antitrust law.
  But the SMARTER Act would upend this century of precedent and 
expertise by creating a uniform standard for preliminary injunctions in 
cases involving significant mergers and other transactions and, 
alarmingly, eliminating the Commission's ability to administratively 
litigate antitrust cases.
  Proponents of the SMARTER Act argue that divergent standards for 
enjoining mergers may undermine the public's trust in the efficient and 
fair outcome of merger cases. They also state that the outcome of a 
transaction comes down to a coin flip between the agencies to determine 
which will review a transaction. That claim is ridiculous and it is not 
borne out by the evidence.
  The American Antitrust Institute, a consumer-oriented antitrust 
organization, conducted a lengthy study of workload statistics compiled 
by both antitrust agencies and found that the concerns of the bill's 
sponsors are without foundation.
  Jonathan Jacobson, a leading antitrust attorney who served on the 
Antitrust Modernization Commission, testified that in his 39 years of 
practice, the outcome of a merger has never turned on the differences 
that the SMARTER Act seeks to address in antitrust law.
  Indeed, of the 3 percent of transactions requiring second requests 
for information from the antitrust agencies, only about 1.5 percent of 
those cases are stopped or modified. An even smaller percentage of 
these cases go to trial for an administrative hearing. We should 
hesitate before making wholesale changes to the law based on 
theoretical concerns involving about 1 percent of mergers, which also 
happen to be some of the largest and most consequential.
  In the absence of any meaningful evidence suggesting a material 
difference in the enforcement of the antitrust laws, it is difficult to 
upending longstanding antitrust practices at the FTC for consistency's 
sake alone based on speculative harms. But even assuming that there are 
material differences in cases brought under these standards, we should 
strike a balance in favor of competition by lowering the burden of 
proof in cases brought by the Justice Department, not by raising the 
Commission's burden for obtaining preliminary injunctions.
  Courts already require a lower burden of proof in cases brought by 
the Commission and Justice Department precisely because both are expert 
agencies equipped with large staffs of economists who analyze numerous 
mergers on a regular basis and who may only bring cases that are in the 
public interest. To the extent that we should address perceived 
differences in the standard for preliminary injunctions in merger 
cases, legislation should favor increased competition, not the 
interests of merging parties.
  The SMARTER Act would eliminate the FTC's authority to 
administratively litigate mergers and other transactions under section 
5(b) of the FTC Act. Leading authorities in antitrust across party 
lines have expressed serious reservations with eliminating the 
Commission's administrative litigation authority.
  For instance, Bill Kovacic, a former Republican chair of the 
Commission, has referred to this aspect of the bill as ``rubbish,'' 
noting that the Commission has used administrative litigation to win a 
string of novel antitrust cases that courts have ultimately upheld 
where the ``Commission has had to fight for every single foot along the 
way.''
  Edith Ramirez, the chairwoman of the FTC, likewise wrote last 
Congress that eliminating the FTC's administrative litigation authority 
would ``fundamentally alter the nature and function of the FTC.''
  Mr. Speaker, 2015 was the year of the merger, megamergers, 
mergermania. There was over $3.8 trillion in merger spending, a record 
that far exceeded expectations. While fewer than 20 percent of mergers 
raise competition concerns, it is clear that a vote for H.R. 2745 is a 
vote for concentrated, private economic power. At a time of increased 
consolidation in key industries, we can't afford more Republican 
attacks on government, which is what H.R. 2745 is, plain and simple.
  I urge my colleagues to oppose this legislation.
  I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield as much time as he may consume to 
the gentleman from Texas (Mr. Farenthold), a member of the Judiciary 
Committee, and the vice chair of the Subcommittee on Regulatory Reform, 
Commercial, and Antitrust Law.
  Mr. FARENTHOLD. Mr. Speaker, it is a privilege to be here today to be 
the sponsor of the SMARTER Act.
  This is just good government. We have a situation now that if you 
want to merge your company with another company, you could go before 
the Federal Trade Commission or you could go before the Department of 
Justice.
  Now, you would think that the Clayton Act that governs antitrust law 
would say: All right. Well, we are going to get treated the same, no 
matter which way we go, the law is the law.
  But that is not how it works. A big piece of this is the procedural 
aspect of it. If your merger is reviewed by the Department of Justice 
and they have a problem with it and they need a preliminarily 
injunction to stop it, they go to Federal Court before a judge, as the 
Founding Fathers intended, the executive branch agency, and there is a 
dispute, and it is litigated in front of a Federal court.
  But if you go before the Federal Trade Commission, they could go to 
Federal court like the Department of Justice, but they can also go to 
their own court. They have got their own court with an FTC employee as 
the judge. Now, we have got administrative law courts that work, but 
they can also do both.
  You have got a situation that the merger could be delayed. In these 
business transactions, as in life, time is money. Just the threat of 
going through this administrative process has the effect of giving the 
FTC the ability to extract concessions that the DOJ wouldn't.
  Look, we need to be treated fairly no matter which agency reviews it. 
This is the main gist of the SMARTER Act. Let's make it the same if you 
go to the DOJ or the FTC.
  This isn't just something that we, Republicans, pulled out of our 
hats. This is a recommendation from the bipartisan Antitrust 
Modification Commission. They have testified that this is part of what 
they think needs to be done to make a better, more efficient 
government.
  Listen, nobody wants to be tied up in red tape. As you go through a 
merger and you draw the short straw and end up in front of the FTC, you 
have got another spool of red tape that you could very possibly get 
rolled up in. I don't think that is fair and I don't think the American 
people think that is fair.
  Now, my colleague on the other side of the aisle, the gentleman from 
Georgia (Mr. Johnson), says this guts the antitrust laws. It doesn't. 
It just makes them fairer. It makes the review the same no matter where 
you go. It is commonsense, good government.
  I don't have anything else to say. I don't see how you can be against 
fairness.
  Mr. JOHNSON of Georgia. Mr. Speaker, before I recognize the Honorable 
Bill Pascrell from New Jersey, who serves on, by the way, the Budget 
and the Ways and Means Committees here in Congress, I would like to 
point out that we have got a severe problem that we are confronting 
this morning. It is the big, bad FTC, which is treating the big 
multinational corporations unfairly. It is abusing them, and something 
needs to be done. The American people are demanding it.
  Mr. Speaker, I yield 4 minutes to the gentleman from New Jersey (Mr. 
Pascrell) so that he can explain further how important this bill is to 
the American people.
  Mr. PASCRELL. Mr. Speaker, I thank the ranking member for yielding.

[[Page H1563]]

  This bill is terrible. The Federal Trade Commission is tasked with 
protecting consumers from anticompetitive mergers. What I just heard 
from the gentleman is that this is all about getting rid of red tape. 
Baloney. This is about money, this is about keeping money in your own 
pocket and protecting yourself against the consumers.

                              {time}  1000

  Concessions we are talking about here.
  The Federal Trade Commission is tasked with protecting consumers from 
anticompetitive mergers. That is what the job is. Corporate mergers can 
make industries more efficient and bring benefits to customers, but in 
some cases, they have the potential to increase costs and hurt 
competition. Mr. Speaker, if you deny that, then you don't have the 
facts, and I am going to lay them out right now.
  Government should not be in the business of setting prices for 
healthcare services or anything else for that matter--for airline 
tickets, cable Internet services, or anything else. I hope we agree on 
that. That is why we need to rely on robust market competition--to keep 
the prices of goods and services down and ensure that consumers are 
getting a fair deal.
  I tell my friends on the other side of the aisle, with due respect, 
that we are pretty good fans of competition; yet here we are, after 
Bloomberg dubbed 2015 the ``Year of the Mergers,'' weakening a key FTC 
tool to ensure healthy competition in a variety of markets.
  Mr. Speaker, I have been particularly concerned with this issue, and 
I mentioned four areas here. I am very, very concerned about the 
mergers we have seen in many sectors of the healthcare industry. Read 
my lips: look at the facts through the Speaker. In my left hand, a 
recent report by the Health Care Pricing Project, which was written up 
in The New York Times late last year, found that monopoly hospitals 
have prices that are 15.3 percent higher than hospitals in an area with 
four or more hospitals--even after controlling for costs in each area.
  Don't you really believe in competition, or do you just say that? Is 
that simply a bumper sticker, a slogan, or do you mean that?
  Two pending mergers in the insurance industry, between Anthem and 
Cigna and Aetna and Humana, set the stage for major consolidation in 
this industry as well. In other words, what this report did was 
establish the fact--I hope you are interested in the facts--that the 
reason we have increasing healthcare costs--a major reason--is for the 
merger and the reduction in competition in health care.
  Then there are the mergers that are motivated by U.S. tax dodging, 
Mr. Speaker, and we have talked about this, which have major 
implications on competition but also on the United States tax base. One 
pending merger would see a major United States company slash its United 
States tax bill by moving its headquarters overseas and creating the 
largest drug company in the universe.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. JOHNSON of Georgia. I yield the gentleman an additional 1\1/2\ 
minutes.
  Mr. PASCRELL. Working Americans across the country do not have the 
benefit of hiring consultants, of shifting their earned income around 
the globe to find the lowest tax rate. And you are standing there, 
saying you want to help the consumer? It is just the opposite.
  Many multinational corporations do just that. Corporate inversions 
allow companies to renege on the obligation to America, eroding the 
United States tax base and hurting American competitiveness. Who are 
you with anyway? If you live in a neighborhood and one house--let's say 
the biggest house on the block--doesn't pay its property taxes, what 
happens? Everyone understands that the rest of the houses on the block 
have to make up the difference.
  The Treasury has taken steps to address inversions, but it is up to 
Congress to pass legislation that addresses this problem immediately. 
In the meantime, the bill before us today would weaken the FTC's 
ability to monitor and enforce against unfair, anticompetitive mergers, 
and they are all over the place. I blame, partially, the 
administration, as the former Attorney General did nothing about 
mergers. While people were trying to get him to resign for other 
reasons, that would have been a darned good reason.
  This is not Republican or Democrat, my friends. These are simply the 
facts, and I can tell you this one report will very, very much 
crystallize what those facts are.
  Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to 
the gentleman from Texas (Mr. Farenthold).
  Mr. FARENTHOLD. Mr. Speaker, I appreciate the gentleman from New 
Jersey's commitment to the free market, because I think we all believe 
a free and fair market is in the best interest of America and in the 
best interest of every American consumer, but we have got to take a 
look at the procedure.
  This is, primarily, procedural in nature so that those companies that 
are seeking mergers, whether they go through the FTC or through the 
Department of Justice, are simply treated the same. If the gentleman is 
concerned about the fact that there are too many mergers--that we are 
getting bigger and bigger companies and that it is stifling 
competition--that is a legitimate conversation for us to have in the 
context of changing the law with respect to monopolies, mergers, and 
acquisitions.
  What we are trying to do here is not change that law, but make that 
law fairer and applied equally, regardless of whether one is in front 
of the Department of Justice or whether one is in front of the Federal 
Trade Commission. If the gentleman takes that argument, then he is 
saying, right now, the FTC has an advantage in stopping these mergers 
because it has all of these other procedures in place, as opposed to 
the Department of Justice.
  Why should one get stuck with a tougher row to hoe based on which 
agency one goes in front of? That is just not fair.
  Mr. PASCRELL. Will the gentleman yield?
  Mr. FARENTHOLD. I yield to the gentleman from New Jersey.
  Mr. PASCRELL. Mr. Speaker, what we need to understand is that we are 
not only talking about the FTC, we are talking about the Justice 
Department, which oversees these mergers regardless of whether we are 
talking about health or airlines, which is a catastrophe. I only 
brought up health care today. We are having that discussion you just 
talked about.
  Mr. FARENTHOLD. In reclaiming my time, I think the gentleman has a 
problem with the fact that there are so many mergers and that he thinks 
it is anticompetitive and not good for folks. That is an opinion that 
the gentleman is, certainly, entitled to, but that is, I think, out of 
the scope of what this bill is trying to do.
  Mr. Speaker, this bill takes existing law and says, look, let's apply 
it the same regardless of which agency one is before. I think that is 
the difference there. I would be happy to meet with the gentleman in 
his office and see if we can find some ways that we can agree so that 
we might reform the overall antitrust system.
  I yield to the gentleman from New Jersey (Mr. Pascrell).
  Mr. PASCRELL. Mr. Speaker, I am mainly concerned about this piece of 
legislation because you have determined--you have defined--a 
nonexistent problem while applying a less consumer friendly standard. 
That is my position.
  What I brought up here is part of the mix. It is putting it in 
context as to what has happened. The consequences of what has happened 
are higher prices for us--for you and me--and I know you are concerned 
about that.

  Mr. FARENTHOLD. In reclaiming my time, my point is that, if the 
gentleman thinks we have too many mergers, let's change the law, but 
let's have a fair procedure. What this bill is designed to do is to 
have a fair procedure for those who are engaged in that activity.
  Mr. JOHNSON of Georgia. Mr. Speaker, I yield an additional 1 minute 
to the gentleman from New Jersey (Mr. Pascrell).
  Mr. PASCRELL. Mr. Speaker, I would like to respond to my friend from 
Texas.
  We went through a period of time in the first decade of this century 
of U.S.

[[Page H1564]]

prosecutors and attorneys looking at the subject of deferred 
prosecutions. I am talking about justice here. That is the bottom line. 
That is what we are talking about here.
  Instead of bringing corporations to trial that had violated the law--
and I am not an attorney. I am not the reason for two of my sons being 
attorneys, but I am not an attorney--they worked out a proposition. 
This is what they are trying to do, and this is what this is all about, 
if I could draw a comparison, which is you slap a corporation on the 
wrist, it pays a fine, and the fine becomes the cost of doing business.
  Mr. Speaker, this is going in the wrong direction. It is attacking a 
problem that does not exist instead of attacking a problem that does 
exist.
  Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I 
may consume.
  I am anguished in listening to the pleas of my friend from Texas to 
help these megamergers, to help these big, multinational corporations. 
They need us so badly because the big, bad FTC is treating them too 
tough. It is too rough on them. Therefore, we have to make the law 
fairer for them. They have all of these silk stocking lawyers off of 
Wall Street, but we need to help them. We are not doing anything else 
here in Congress other than helping multinational corporations, hearing 
the plea that these folks need help when it is the folks in Flint, 
Michigan, who need help, who are crying out for help, but their voices 
can't be heard in this Congress because we are too busy trying to 
protect these big, multinational corporations.
  The only thing we want to do, according to my friends, is to 
harmonize the standard of proof between the DOJ and the FTC so that the 
big, bad corporations which need our help only have to deal with one 
standard of proof. They are not telling you what they are really 
wanting to do, which is to gut administrative review by the FTC, under 
section 5(b) of the FTC Act. That is where the real harm comes in, but 
they don't want to tell you about that. They don't want to let you know 
what kind of impact that has when a prescription drug company seeks to 
merge again with another large company and make a humongous company 
that is too big to fail and, also, too big to regulate your drug prices 
out there.
  Why are your drug prices going up? What kind of policies are we 
implementing here in Congress to protect them? Absolutely none. We are 
making it easier for prices to go up with insurance, in the travel 
industry, in trying to get a hotel. In trying to book a hotel room on 
the Internet, they have got it all rigged up because there are only a 
couple of companies you can go through to get the room.
  These are the policies that are affecting the lives of the people 
whom we represent. I don't represent many big, multinational 
corporations. I don't think I have any, as a matter of fact, in my 
district, but I guess there are some folks around here who have a bunch 
of them.

                              {time}  1015

  Mr. Speaker, may I inquire how much time remains on both sides?
  The SPEAKER pro tempore. The gentleman from Georgia has 10 minutes 
remaining. The gentleman from Virginia has 20\1/2\ minutes remaining.
  Mr. JOHNSON of Georgia. Mr. Speaker, I reserve the balance of my 
time.
  Mr. GOODLATTE. Mr. Speaker, since I have one speaker remaining, I 
reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Speaker, I yield 4 minutes to the 
gentlewoman from the great State of Texas (Ms. Jackson Lee).
  Ms. JACKSON LEE. Mr. Speaker, I thank the distinguished gentleman 
from Georgia, and I thank the chairman of the full committee and the 
author of this bill.
  I rise in combination of speaking on this bill, but also offering my 
deepest sympathy to the people of Brussels, the people of Belgium 
which, some would say, is the heart of the civic participation of 
Europe--they are certainly dear friends of the United States--though we 
would mourn any who have been impacted by the dastardly deeds of 
terrorism.
  I know in our committee, Mr. Johnson and Mr. Goodlatte are working on 
these issues. I would hope that we could move the no fly for foreign 
terrorists bill as quickly as possible as we make our way through these 
issues of determining how we disrupt the ideology and then the actions 
that result in the deaths of innocent persons. So I offer that.
  Mr. Speaker, I am struck by the name of this bill because I don't 
know who gets smarter. I know that the consumers get poorer and that 
there are opportunities for victimizing the consumers. This bill does 
not create equal rules or implement smarter legislation.
  But if I might take up the comment about the increasing cost of 
prescription drugs, that is clearly a result of not allowing the FTC to 
pursue and to proceed because it is our arm of equalizing and balancing 
the consumer.
  On this day, when we acknowledge the sixth anniversary of the 
Affordable Care Act that has brought health insurance to 20 million 
people, we know that what we need to fix is the rising cost of 
prescription drugs.
  So this bill is about attacking the administrative authority of the 
Federal Trade Commission. It is an unnecessary measure that would 
fundamentally undermine the FTC's independent enforcement authority and 
ability to prevent anticompetitive mergers.
  As a law student, I remember in my antitrust classes how the FTC was 
highlighted as one of the anchors of balance and the anchors of 
protection of innocent civilians.
  Specifically, if enacted, the SMARTER Act would strip the FTC of 
power by eliminating the agency's authority to enforce antitrust laws 
in larger merger cases and by blocking its ability to use its 
administrative proceedings to stop a harmful merger transaction.
  Why is that? The FTC is where you can engage and have discussion. The 
bill seeks to do so by requiring that the FTC use the same enforcement 
process as the DOJ. There is more ability for the little guy to be 
heard at the FTC.
  This proposed sweeping change undercuts the FTC's administrative 
litigation process for contested mergers or acquisitions and 
effectively removes a very core and functioning character of the 
agency, lets more people in the door to express themselves for or 
against this merger, how it impacts, with less resources needed to get 
in front of an administrative agency than dealing with the Department 
of Justice.
  Moreover, reducing the FTC's independence directly conflicts with 
Congress' intent in creating this antitrust enforcement agency and 
policymaking body as a distinct and independent shield from political 
and executive interference.
  As enforcers of section 7 of the Clayton Act, both the FTC and DOJ 
have the authority and responsibility to prohibit mergers and 
acquisitions that substantially lessen competition. That saves money 
because competition helps save money. These agencies serve to 
complement each other. Why make them the same? They are not twins.
  Based upon historical experience and coordinated development, the FTC 
serves to protect consumers and consumer spending, health care, 
pharmaceuticals, professional services, food, energy, food safety, 
among other things. The DOJ typically assumes a specialized focus on 
larger corporate industries, like telecommunications, banks, railroads, 
and airlines. Serving as joint enforcement agencies for over 100 years, 
they work together.
  Don't take away the consumers' arm. That is the FTC. This bill takes 
it away and puts the little guy under and the big guy up.
  Mr. Speaker, I rise in strong opposition to H.R. 2745, the Standard 
Merger and Acquisition Reviews through Equal Rules Act--otherwise known 
as the SMARTER Act.
  Mr. Speaker, this bill is not about creating equal rules or 
implementing ``smarter'' legislation.
  Rather, it is about attacking the administrative authority of the 
Federal Trade Commission (FTC).
  H.R. 2745 is an unnecessary measure that would fundamentally 
undermine the FTC's independent enforcement authority and ability to 
prevent anti-competitive mergers.
  As we all know, the FTC was created by Congress with the specific 
intent of creating an independent antitrust enforcement agency and 
supplemental authority to the Department of Justice (DOJ).
  Specifically, if enacted, the SMARTER Act would strip the FTC of its 
power by eliminating

[[Page H1565]]

the agency's authority to enforce antitrust laws in larger merger 
cases, and by blocking its ability to use its administrative 
proceedings to stop a harmful merger transaction.
  The bill seeks to do so by requiring that the FTC use the same 
enforcement process as the DOJ.
  This proposed sweeping change undercuts the FTC's administrative 
litigation process for contested mergers or acquisitions and 
effectively removes the very core and functioning character of this 
agency.
  Moreover, reducing the FTC's independence directly conflicts with 
Congress's intent in creating this antitrust enforcement agency and 
policymaking body as distinct and independent shield from political and 
executive interference.
  As enforcers of Section 7 of the Clayton Act, both the FTC and the 
DOJ have the authority and responsibility to prohibit mergers and 
acquisitions that would ``substantially lessen competition'' or ``tend 
to create a monopoly''.
  Under this enforcement authority, these agencies serve to complement 
each other, and have developed over the years to specialize in 
particular industries and markets.
  Based upon historical experience and coordinated developments, the 
FTC serves to protect consumers and consumer spending--e.g., 
healthcare, pharmaceuticals, professional services, food, energy, and 
certain high-tech industries like computer technology and internet 
services.
  Whereas, the DOJ typically assumes a specialized focus on larger 
corporate industries--e.g., telecommunications, banks, railroads, and 
airlines.
  Thus, while the FTC and the DOJ have operated with a shared 
responsibility of enforcing federal antitrust laws, these two federal 
agencies are unique and each retain exclusive authority of certain 
conduct.
  Serving as joint enforcement agencies for over 100 years, the FTC and 
DOJ rely upon each other to coordinate agency jurisdiction and 
harmonized standards and practices.
  The SMARTER Act is simply unnecessary as it fails to put forth any 
meaningful effort to enhance or rectify any expressed concerns 
governing these longstanding agency operations.
  In particular, in 2002 Congress sought to review and amend antitrust 
laws and policies in light of changing economy and rise in 
technological advances.
  In 2007 a report issued by the Antitrust Modernization Commission 
(AMC) set forth specific recommendations for the FTC to eliminate real 
or perceived disparities in the review process for merger transactions.
  According to the AMC, Congress should seek to ensure that the same or 
comparable standard is used when seeking a preliminary injunction 
against a potentially anticompetitive transaction.
  However, the SMARTER Act goes beyond this recommendation and seeks to 
chip away and carve out the entire administrative adjudication 
authority of the FTC.
  In order to identify potential violations of the Clayton Act, the FTC 
and the DOJ review proposed merger transactions pursuant to the Hart-
Scott-Rodino Antitrust Improvements Act (the HSR Act), which provides 
advance notice and sets forth guidelines on large merger and 
acquisition transactions.
  The heart of this concern is the alternate means in which the FTC and 
the DOJ carry out their enforcement role during this HSR pre-merger 
process.
  Namely, H.R. 2745 is curiously motivated by the preliminary 
injunction process utilized by the FTC and the DOJ to halt proposed 
transactions that would violate the Clayton Act if completed.
  Additionally, the DOJ typically consolidates the preliminary and 
permanent injunction proceedings, while the FTC typically only pursues 
the preliminary injunction.
  While some argue that proposed transactions reviewed through the FTC 
would be treated more leniently than those reviewed through the DOJ, 
this assertion was not fully substantiated by the AMC.
  The pre-merger review process and the injunction standards utilized 
by the FTC and the DOJ are the very procedural steps that characterize 
and distinguish the respective enforcement roles of these agencies.
  This supposed area of concern addresses only a small fraction of 
proposed transactions, as the vast majority of merger and acquisition 
proposals are found to not be in violation of the Clayton Act during 
the review process.
  The FTC and the DOJ review over a thousand merger filings every year.
  Yet 95% of those merger filings present no competitive issues or 
challenged transactions.
  As reported by the American Antitrust Institute (AAI), the overall 
concerns purported by the bill's sponsors are simply without 
foundation.
  In contrast, the overall work of the FTC has an incredible impact on 
American consumers, communities and corporations and will be severely 
impacted if disrupted.
  As highlighted by the FTC Chairwoman Edith Ramirez in her testimony 
before the House Judiciary Subcommittee on Regulatory Reform, 
Commercial and Antitrust Law, the FTC prioritizes the protection of 
consumers and the prevention of anticompetitive market practices.
  In fact, the FTC exists to ensure fair competition and to prevent 
enormous concentrations of economic power that hurts consumers and 
small businesses.
  For example:
  In the past year, the FTC has challenged over 28 mergers, (although 
in most it was able to negotiate a remedy to allow the merger to 
proceed).
  At the consumer level in my home state of Texas, the FTC secured an 
$82,000 settlement against an auto-dealer found in violation of the 
Fair Credit Reporting Act in September 2015.
  Also last year, the FTC ordered the largest divestiture ever in a 
supermarket merger, requiring Albertsons and Safeway to sell 168 
supermarkets in 130 local markets throughout several states, ensuring 
that communities continue to benefit from competition among their local 
supermarkets.
  The FTC has also taken an aggressive stance on stopping 
anticompetitive mergers and conduct in the healthcare market by halting 
such practices through administrative litigation.
  In September 2015, the FTC secured a $1.1 million settlement to 
consumers who lost money to a health insurance telemarketing scam.
  And in the last two years, the FTC took action in 13 pharmaceutical 
mergers, ordering divestitures to preserve competition for drugs that 
treat diabetes, hypertension, and cancer, as well as widely used 
generic medications like oral contraceptives and antibiotics.
  Just last week on March 18, 2016, after a thoroughly vetted 
investigation, the FTC approved a final order preserving competition 
among outpatient dialysis clinics in Laredo, Texas.
  That is, the FTC cleared U.S. Renal Care, Inc.'s (the country's third 
largest outpatient dialysis provider) $640 million purchase of dialysis 
competitor DSI Renal, on the condition that three of DSI's outpatient 
clinics in Laredo, Texas, be handed over to a third party. Absent this 
agreed divestiture, the acquisition would have led to a significant 
increase in market concentration and anti-competitive effects. The 
likely result, according to the FTC, would have included the 
elimination of direct competition between U.S. Renal Care and DSI 
Renal, reduced incentives to improve services or quality for dialysis 
patients, and increased ability for the merged company to unilaterally 
increase prices.
  Notably, the DOJ has also been successful in securing investigations 
and halting suspected harmful merger practices on a much larger scale 
(in the health care and airline industry as of recent).
  In June 2015, the DOJ put pressure on several multibillion dollar 
health insurers seeking to engage in large merger transactions with 
near certain suppression of market competition in the healthcare 
industry.
  In August 2015, the DOJ issued civil investigative demands on several 
major US airlines seeking to halt any potential unlawful mergers.
  These cases demonstrate the need for continued protection of the FTC 
and its ability to effectively carry out injunctions on harmful merger 
and acquisition activities, as well as anticompetitive business conduct 
that harms consumers and restrains market activity.
  The ability of the FTC to function independently is a necessary 
function to the success of both the FTC and the DOJ.
  The far-reaching and elusive SMARTER Act fails keep the foundational 
integrity of these agencies and should be opposed.
  I urge all Members to vote against this serious threat to our 
fundamental protections of consumers and fair economic competition.
  Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
  Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself the balance of my 
time to close.
  It is not often that I come to the floor to argue a bill and to 
debate and nobody on the other side shows up to participate in the 
debate. I have been feeling kind of lonely over here.
  I guess that people are too embarrassed on the other side to come 
here and defend this legislation at this particular time, as we get 
ready to depart for what will be just about 3 weeks, while we are 
leaving dangling and hanging important issues, like a budget for this 
country that was promised to us back at the beginning of the year. It 
was supposed to be regular order. It was supposed to be that we are 
going to do a budget.
  After the budget is done and we have our top lines and bottom lines 
in place, then we will embark upon the appropriations process and we 
will pass all of

[[Page H1566]]

the 12 appropriations bills for the first time in years and we will get 
back to regular order around here. They can't even produce enough votes 
to pass a budget.
  So what do we do then? We revert to trying to protect and coddle and 
make things easy for big multinational corporations that want to get 
bigger. They want to get bigger so that they can get a lock on the 
market, they have no competition, and then they can set whatever price 
they want to set and the American people are left having to pay.
  What can you do when you need your prescription medication and there 
is no competition, no other similar drug, and you only have one player 
in the room; therefore, you have to pay whatever they are holding you 
over the barrel for.
  The American people are sick and tired and they are angry about 
having been held over a barrel year after year after year as this 
Congress continues to coddle and protect and make things good for big 
business.
  Well, what about the working people of this country? When are we 
going to do something about making sure that they don't have to pay 
these increased bills that they would have to pay for things like hotel 
rooms, insurance, medical care, prescription drugs, nursing homes, and 
food?
  I don't even want to talk about the price of gas that is going to go 
up this summer. Despite the fact that we have a glut in the oil market, 
you are going to be seeing your gas prices rise. Why? Because you are 
getting out on the road and trying to go on vacation. It is getting 
more and more difficult to do that because wages haven't gone up.
  So this Congress continues to make it easy for big corporations to 
increase their profits while doing nothing to raise wages for the 
regular working people of this country.
  Now we are getting ready to go on another 3-week district work 
period. I have a lot of work to do in the district trying to explain to 
the people of my district why we are not getting down to business and 
doing the things that they expect this Congress to do.
  Mr. Speaker, I would ask that my colleagues in this body oppose the 
SMARTER Act and do what is right for the American people.
  I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield myself the balance of my time to 
close.
  Let's look at the arguments, the straw men that have been set up by 
the other party claiming that this legislation does a manner of things 
that it simply does not do.
  First, they say enacting the SMARTER Act only benefits large 
companies that wish to merge, but the SMARTER Act protects small and 
midsize companies which also come under the Federal Trade Commission's 
scrutiny.
  This legislation is not designed to help big companies get bigger. 
Indeed, large companies have the resources to hire the lawyers, 
economists, lobbyists, and other regulatory professionals to wrestle 
with the FTC.
  It is the small- and medium-size companies that would benefit from a 
fair process and an assurance that they would have their day in court.
  The FTC does not always focus its attention on the large companies. 
In fact, a Wall Street Journal article from 2013 documents how the FTC 
pursued anticompetitive practices of the Music Teachers National 
Association, a nonprofit with about a dozen employees.
  In short, this nonprofit was a collection of piano teachers. So if 
you think the FTC only engages with conglomerates, you are mistaken. 
They will even prosecute your after-school piano teacher.
  The SMARTER Act ensures that, if the FTC does focus its efforts on 
piano teachers, on the small- and medium-size companies, they will have 
the benefit of a fair process.
  Then they make the argument that the SMARTER Act will make it more 
difficult for antitrust enforcement agencies to stop a merger, but the 
SMARTER Act only changes the process. It does not have any substantive 
impact on merger reviews.
  The SMARTER Act does not make any substantive changes to antitrust 
law. Rather, the legislation only standardizes the process between the 
two antitrust enforcement agencies.
  The witnesses at the committee hearings on the SMARTER Act testified 
that the legislation only affects the process and not the substantive 
standard.
  As Deborah Garza, former chairwoman of the Antitrust Modernization 
Commission stated:

       No one on the AMC believed at the time, and I do not 
     believe today, that this legislation would make it difficult 
     or impossible for the FTC Commission to do its job. The 
     Justice Department has done very well in pursuing its merger 
     enforcement agenda working with the standards that apply to 
     it. And I firmly believe that the FTC can do so as well.

  Indeed, even the current Department of Justice Assistant Attorney 
General for the antitrust division stated:

       I do not think there is a practical difference in how the 
     courts assess the factual and legal basis for enjoining a 
     merger challenged by the FTC on the one hand and the 
     Department on the other.

  Let me also quote from a letter written by 15 leading antitrust 
professors who wrote to Congress expressing their support for the 
SMARTER Act:

       The FTC is a very impressive agency that plays a valuable 
     role in antitrust enforcement. The SMARTER Act does nothing 
     to undermine the FTC's authority. It simply ensures that the 
     merger review processes and standards are equally applied to 
     merger parties, regardless of which agency reviews the 
     transaction.

  The gentleman from New Jersey complained about what was going on with 
the review of proposed mergers by health insurance companies. Guess 
what. Who is doing those reviews? Not the FTC. The Department of 
Justice. It doesn't make any sense.
  What does make sense is that there are lots of companies going 
through lots of things caused, in part, by ObamaCare forcing healthcare 
providers, insurance companies, and others to look at mergers and 
acquisitions. When they do so, the public should have the right to know 
that justice is being done.
  This is not about big business or small business. This is about 
making sure that the laws are fairly and equally applied. When that 
happens, we should have this legislation at hand so that we have the 
assurance that we are going to have justice done. The FTC should 
operate by the same merger review processes and standards that the 
Department of Justice does.
  I believe in the vigorous prosecution of antitrust practices and 
transactions by the Department of Justice and the FTC. I would not 
support the SMARTER Act if I thought that it would disadvantage our 
antitrust enforcement agencies.
  The Congressional Record demonstrates that the SMARTER Act only makes 
the process more fair and predictable while providing the antitrust 
enforcement agencies with the same powers to prosecute antitrust 
practices.

                              {time}  1030

  The SMARTER Act is a commonsense process reform that ensures fairness 
and parity in the narrow field of merger reviews. The bill was 
recommended to Congress by a bipartisan commission and is supported by 
former top Department of Justice antitrust enforcement officials and 
past and present FTC Commissioners of both political parties.
  This legislation will help America continue to serve as a leader and 
innovator in competition law, and I urge my colleagues to vote in favor 
of this bill.
  Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, H.R. 2745, the ``Standard Merger and 
Acquisition Reviews Through Equal Rules Act of 2015'' or SMARTER Act, 
would require the Federal Trade Commission to use the same merger 
enforcement procedures as the Justice Department's Antitrust Division 
for proposed mergers, acquisitions, joint ventures, and other similar 
transactions.
  I oppose this flawed bill for several reasons.
  Most importantly, H.R. 2745--by weakening the Commission's 
independence--undermines Congress's original intent in creating the 
Federal Trade Commission in the first place.
  For good reasons that are still relevant today, Congress established 
the Commission to be an independent administrative agency.
  Although the Sherman Antitrust Act of 1890 empowered the Justice 
Department to enforce antitrust laws, Congress determined that more 
needed to be done to address the wave of mergers and anti-competitive 
corporate abuses that continued notwithstanding the enactment of that 
Act.

[[Page H1567]]

  Accordingly, Congress created the Commission in 1914 as an 
independent body of experts charged with developing antitrust law and 
policy free from political influence, and particularly executive branch 
interference.
  To this end, Congress specifically gave the Commission broad 
administrative powers to investigate and enforce laws to stop unfair 
methods of competition as well as the authority to use an 
administrative adjudication process to develop policy expertise, rather 
than requiring the Commission to try cases before a generalist federal 
judge.
  Yet, rather than strengthening the Commission's independence and 
enforcement authority, the SMARTER Act does the opposite.
  Of greatest concern is the bill's elimination of the administrative 
adjudication process for merger cases under section 5(b) of the Federal 
Trade Commission Act.
  By doing so, the SMARTER Act would effectively transform the 
Commission from an independent administrative agency into just another 
competition enforcement agency indistinguishable from the Justice 
Department and, thereby, arguable redundant.
  The Commission's administrative authority is key to its distinctive 
role as an independent administrative agency. But the SMARTER Act--by 
eliminating the Commission's administrative authority--opens the door 
for the ultimate elimination of the Commission.
  And, you do not just have to take my word for it. Former Republican 
Commission Chairman William Kovacic, while expressing support for the 
bill's harmonization of preliminary injunction standards, says that the 
``rest of the SMARTER Act is rubbish.''
  He continued, ``Let me put it this way: behind the rest of [the 
SMARTER Act] is the fundamental question of whether you want the 
Federal Trade Commission involved in competition law.''
  Similarly, current Commission Chairwoman Edith Ramirez observes that 
the bill would have ``far-reaching immediate effects'' and 
``fundamentally alter the nature and function of the Commission, as 
well as the potential for significant unintended consequences.''
  Consumers Union also opposes the SMARTER Act not only because it is 
completely unnecessary, but also because the bill could ``create 
unintended hurdles to effective and sound enforcement'' and ``set the 
stage for further tinkering--both of which risk undermining what is now 
a coherent, consistent, well-established, familiar enforcement 
procedure within the'' Commission.
  Finally, the SMARTER Act is problematic because it may apply to 
conduct well-beyond large mergers, which could further hinder the 
Commission's effectiveness.
  In particular, the SMARTER Act would eliminate the Commission's 
authority to use administrative adjudications not just for the largest 
mergers, but for non-merger activity, like a ``joint venture'' or 
``similar transaction.''
  I recognize that the bill's authors have tried in good faith to 
respond to some of the concerns expressed by me and by the Commission 
during the last Congress and I appreciate those efforts.
  Moreover, I recognize that the Commission itself last year changed 
its procedural rules to make it easier to end the use of administrative 
litigation where it loses a preliminary injunction proceeding in court.
  I continue to have concerns, however, about the bill's prohibition 
against the Commission's administrative litigation authority with 
respect to all merger cases.
  Accordingly, I must oppose the SMARTER Act, even in its rewritten 
form, and I urge my colleagues to join me in opposition to H.R. 2745.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 653, the previous question is ordered on 
the bill.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


                           Motion to Recommit

  Mr. DOGGETT. Mr. Speaker, I have a motion at the desk.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. DOGGETT. I am.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Doggett moves to recommit the bill (H.R. 2745) to the 
     Committee on the Judiciary, with instructions to report the 
     bill back to the House forthwith with the following 
     amendment:
       At the end of the bill, add the following:

     SEC. 5. PROTECTING CONSUMERS AGAINST HIGH PRESCRIPTION DRUG 
                   COSTS.

       (a) This Act and the amendments made by this Act shall not 
     apply to mergers that would unreasonably increase the costs 
     of pharmaceutical drugs.
       (b) The Clayton Act (15 U.S.C.12 et seq.) and Federal Trade 
     Commission Act (15 U.S.C. 45 et seq.) as in effect 
     immediately before the date of the enactment of this Act 
     shall apply to mergers that would unreasonably increase the 
     costs of pharmaceutical drugs.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas is recognized for 5 minutes in support of his motion.
  Mr. DOGGETT. Mr. Speaker, for many months now so many of us Democrats 
here in the House have been pleading with our Republican colleagues to 
recognize that there is a very serious cost to the American people of 
prescription price gouging; such a serious matter that, overwhelmingly, 
in the fall, when the Kaiser Family Foundation surveyed healthcare 
concerns of Americans, the number one issue was soaring, unaffordable 
prescription drugs.
  We have not been very successful in getting their attention on this 
just to recognize the severity of the problem--not even getting to the 
point of agreeing on what legislative action this Congress, this 
administration might take in order to address this problem.
  We got another indication of the severity of the problem and the way 
that people across America are being impacted by the Republican failure 
to address prescription price gouging in the latest survey done this 
year by AARP, their RxPrice Watch report, which found the average 
retail price among 622 prescription medicines that are widely used by 
seniors more than doubled from less than $6,000 in 2006 to over $11,000 
in 2013. That is an incredible increase.
  It is not just seniors who are impacted, but working families, people 
all over the United States, by the fact that prescription drug prices 
are rising much faster than the cost of living and other health care.
  Now, we have been asking for months that Republicans recognize the 
severity of this problem. I have asked in the Committee on Ways and 
Means. We cannot even get a hearing on the subject.
  Our colleagues have asked, in the Commerce Committee, how about a 
hearing to look at what is happening to the American people on these 
outrageous prescription price increases that just keep increasing and 
increasing? The Commerce Committee has refused to hold a hearing on it.
  The Committee on Appropriations has been asked to review and consider 
this problem. They won't hold a hearing on it.
  The Committee on Oversight and Government Reform, under the 
leadership of Elijah Cummings as the ranking Democrat, asked for a 
subpoena. Finally--and it is appropriate for this bill, they call it 
the SMARTER Act, and Republicans are always so much better at naming 
their legislation than what is in it--we had a smart aleck who got 
subpoenaed, the guy who thought it was okay to raise the price of an 
over 60-year-old drug by over 5,000 percent in 1 day, having a big 
impact on people who needed it for reduced immunity from any number of 
kinds of treatments, a 5,000 percent increase, and they at least were 
willing to get him over video to make his various smart-aleck remarks 
about his ability to do that.
  Competition by itself is not solving the problem with the soaring 
cost of prescription drugs. But trying to maintain competition, if 
Republicans won't recognize how endangered so many Americans are by 
prescription price gouging, we ought not to go backwards, and that is 
what I fear this bill would do.
  Let me give you a precise example. On November 18, the Federal Trade 
Commission, which would be impacted by this bill, approved a final 
order that was concerned with the merger on generic drugs that treat 
certain types of ulcers and thyroid conditions. This is the merger, an 
$8 billion merger between Endo International and Par Pharmaceuticals.
  The FTC was concerned about the effect on competition and raising 
prices and gouging consumers even more than is occurring already. I do 
not want to impair in any way their ability to initiate litigation, to 
be involved, to see that competition remains--to the limited extent it 
is now--and not see seniors or working families with a sick child or 
anyone who gets a sad diagnosis of a life-threatening disease and then 
finds themselves facing financial ruin even if they have insurance, to 
see

[[Page H1568]]

one of the few tools we have to deal with these anticompetitive 
provisions eliminated by this bill.
  This is the last amendment on the bill. It will not send the bill 
back to committee. It will at least preserve this one narrow area. If 
Republicans won't recognize the problem, at least don't go make it 
worse.
  They could be bringing up bills to this floor like the one that had 
bipartisan support about 8 or 9 years ago. Former Representative John 
Dingell had a bill so that we would begin to have Medicare negotiate 
prices with these pharmaceutical companies. Twenty-four Republicans 
even joined us. That is the kind of bipartisan action we need.
  At least approve this motion to recommit. Let the bill move forward, 
but without gouging consumers on prescription drug prices even more 
than they are today.
  Mr. Speaker, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I claim the time in opposition to the 
motion to recommit.
  The SPEAKER pro tempore. The gentleman from Virginia is recognized 
for 5 minutes.
  Mr. GOODLATTE. Mr. Speaker, there is no question that, because of 
ObamaCare and government regulation, the cost of prescription drugs is 
going up--and going up too fast. We definitely need to reform our 
healthcare system, starting with repealing ObamaCare and putting in 
place real patient-centered reforms to our healthcare system, but that 
is not what this legislation is about today.
  The SMARTER Act is predicated on a very simple notion: the results of 
an antitrust merger review should not be dependent on which antitrust 
enforcement agency happens to review the deal. The outcome should not 
be determined by the flip of an agency coin. The SMARTER Act is a 
process reform that ensures that all parties have their day in court 
and are subject to the same standards, regardless of which antitrust 
enforcement agency reviews their merger.
  The motion to recommit defeats this simple reform by carving out an 
exception for one area. Why, if we are seeking justice, why, if we are 
seeking a fair standard for all people before these antitrust review 
agencies, would we take this particular area and say, no, we are not 
going to have a consistent standard for reviewing something that the 
gentleman feels is so important.
  We all feel that is very important, and that is why we all should 
oppose this motion to recommit and vote for the underlying bill. I urge 
my colleagues to vote against the motion.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. DOGGETT. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule 
XX, this 15-minute vote on the motion to recommit will be followed by 
5-minute votes on passage of the bill, if ordered, and the motion to 
suspend the rules and agree to House Resolution 658.
  The vote was taken by electronic device, and there were--yeas 174, 
nays 235, not voting 24, as follows:

                             [Roll No. 136]

                               YEAS--174

     Adams
     Aguilar
     Beatty
     Becerra
     Beyer
     Bishop (GA)
     Bonamici
     Brady (PA)
     Brownley (CA)
     Bustos
     Butterfield
     Capps
     Capuano
     Cardenas
     Carney
     Carson (IN)
     Cartwright
     Castor (FL)
     Castro (TX)
     Chu, Judy
     Cicilline
     Clark (MA)
     Clarke (NY)
     Clay
     Cleaver
     Clyburn
     Cohen
     Connolly
     Conyers
     Cooper
     Costa
     Courtney
     Crowley
     Cuellar
     Cummings
     Davis (CA)
     Davis, Danny
     DeFazio
     DeGette
     Delaney
     DeLauro
     DelBene
     DeSaulnier
     Deutch
     Dingell
     Doggett
     Doyle, Michael F.
     Duckworth
     Duncan (TN)
     Edwards
     Ellison
     Engel
     Eshoo
     Esty
     Farr
     Fattah
     Foster
     Frankel (FL)
     Fudge
     Gabbard
     Gallego
     Garamendi
     Graham
     Grayson
     Green, Al
     Green, Gene
     Gutierrez
     Hahn
     Hastings
     Heck (WA)
     Higgins
     Himes
     Hinojosa
     Honda
     Hoyer
     Huffman
     Israel
     Jackson Lee
     Jeffries
     Johnson (GA)
     Johnson, E. B.
     Jones
     Kaptur
     Keating
     Kelly (IL)
     Kennedy
     Kildee
     Kilmer
     Kind
     Kirkpatrick
     Kuster
     Langevin
     Larsen (WA)
     Larson (CT)
     Lawrence
     Lee
     Levin
     Lewis
     Lieu, Ted
     Lipinski
     Loebsack
     Lofgren
     Lowenthal
     Lowey
     Lujan Grisham (NM)
     Lujan, Ben Ray (NM)
     Lynch
     Maloney, Carolyn
     Maloney, Sean
     Matsui
     McCollum
     McDermott
     McGovern
     McNerney
     Meeks
     Meng
     Moore
     Moulton
     Murphy (FL)
     Napolitano
     Neal
     Nolan
     Norcross
     O'Rourke
     Pallone
     Pascrell
     Payne
     Pelosi
     Perlmutter
     Pingree
     Pocan
     Polis
     Price (NC)
     Quigley
     Rice (NY)
     Roybal-Allard
     Ruiz
     Ruppersberger
     Rush
     Ryan (OH)
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schrader
     Scott (VA)
     Scott, David
     Serrano
     Sewell (AL)
     Sherman
     Sires
     Slaughter
     Swalwell (CA)
     Takai
     Takano
     Thompson (CA)
     Thompson (MS)
     Titus
     Tonko
     Torres
     Tsongas
     Van Hollen
     Vargas
     Veasey
     Vela
     Velazquez
     Visclosky
     Walz
     Wasserman Schultz
     Waters, Maxine
     Watson Coleman
     Welch
     Yarmuth

                               NAYS--235

     Abraham
     Aderholt
     Allen
     Amash
     Amodei
     Ashford
     Babin
     Barletta
     Barr
     Barton
     Benishek
     Bera
     Bilirakis
     Bishop (MI)
     Blackburn
     Blum
     Bost
     Boustany
     Brady (TX)
     Brat
     Bridenstine
     Brooks (AL)
     Brooks (IN)
     Buchanan
     Buck
     Bucshon
     Burgess
     Byrne
     Calvert
     Carter (GA)
     Carter (TX)
     Chabot
     Clawson (FL)
     Coffman
     Cole
     Collins (GA)
     Collins (NY)
     Comstock
     Conaway
     Cook
     Costello (PA)
     Cramer
     Crawford
     Crenshaw
     Culberson
     Curbelo (FL)
     Davis, Rodney
     Denham
     Dent
     DeSantis
     DesJarlais
     Diaz-Balart
     Dold
     Donovan
     Duffy
     Duncan (SC)
     Ellmers (NC)
     Emmer (MN)
     Farenthold
     Fitzpatrick
     Fleischmann
     Fleming
     Flores
     Forbes
     Fortenberry
     Foxx
     Franks (AZ)
     Frelinghuysen
     Garrett
     Gibbs
     Gibson
     Goodlatte
     Gosar
     Gowdy
     Granger
     Graves (GA)
     Graves (LA)
     Graves (MO)
     Griffith
     Grothman
     Guinta
     Guthrie
     Hanna
     Hardy
     Harper
     Harris
     Hartzler
     Heck (NV)
     Hensarling
     Hice, Jody B.
     Hill
     Holding
     Hudson
     Huelskamp
     Huizenga (MI)
     Hultgren
     Hunter
     Hurd (TX)
     Hurt (VA)
     Issa
     Jenkins (KS)
     Jenkins (WV)
     Johnson (OH)
     Johnson, Sam
     Jolly
     Jordan
     Joyce
     Katko
     Kelly (MS)
     Kelly (PA)
     King (IA)
     King (NY)
     Kinzinger (IL)
     Kline
     Knight
     LaHood
     LaMalfa
     Lamborn
     Lance
     Latta
     LoBiondo
     Long
     Loudermilk
     Lucas
     Luetkemeyer
     Lummis
     MacArthur
     Marchant
     Marino
     Massie
     McCarthy
     McCaul
     McClintock
     McHenry
     McKinley
     McMorris Rodgers
     McSally
     Meadows
     Meehan
     Messer
     Mica
     Miller (FL)
     Miller (MI)
     Moolenaar
     Mooney (WV)
     Mullin
     Mulvaney
     Murphy (PA)
     Neugebauer
     Newhouse
     Nunes
     Olson
     Palazzo
     Palmer
     Paulsen
     Pearce
     Perry
     Peters
     Peterson
     Pittenger
     Pitts
     Poe (TX)
     Poliquin
     Pompeo
     Posey
     Price, Tom
     Ratcliffe
     Reed
     Renacci
     Ribble
     Rice (SC)
     Rigell
     Roby
     Roe (TN)
     Rogers (AL)
     Rogers (KY)
     Rohrabacher
     Rokita
     Rooney (FL)
     Ros-Lehtinen
     Roskam
     Ross
     Rothfus
     Rouzer
     Royce
     Russell
     Salmon
     Sanford
     Schweikert
     Scott, Austin
     Sensenbrenner
     Sessions
     Shimkus
     Shuster
     Simpson
     Sinema
     Smith (MO)
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Stefanik
     Stewart
     Stivers
     Stutzman
     Thompson (PA)
     Thornberry
     Tiberi
     Tipton
     Trott
     Turner
     Upton
     Valadao
     Wagner
     Walberg
     Walden
     Walker
     Walorski
     Walters, Mimi
     Weber (TX)
     Webster (FL)
     Wenstrup
     Westerman
     Westmoreland
     Whitfield
     Williams
     Wilson (SC)
     Wittman
     Womack
     Woodall
     Yoder
     Yoho
     Young (AK)
     Young (IA)
     Young (IN)
     Zeldin

                             NOT VOTING--24

     Bass
     Bishop (UT)
     Black
     Blumenauer
     Boyle, Brendan F.
     Brown (FL)
     Chaffetz
     Fincher
     Gohmert
     Grijalva
     Herrera Beutler
     Labrador
     Love
     Nadler
     Noem
     Nugent
     Rangel
     Reichert
     Richmond
     Scalise
     Smith (WA)
     Speier
     Wilson (FL)
     Zinke

                              {time}  1100

  Messrs. LaMALFA, ASHFORD, LANCE, Mrs. HARTZLER, Messrs. SCHWEIKERT, 
FRANKS of Arizona, DUFFY, BERA, WESTMORELAND, MacARTHUR, and 
FITZPATRICK changed their vote from ``aye'' to ``no.''
  Messrs. NOLAN, DEUTCH, and DOGGETT changed their vote from ``no'' to 
``aye.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore. The question is on the passage of the bill.

[[Page H1569]]

  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 235, 
noes 171, not voting 27, as follows:

                             [Roll No. 137]

                               AYES--235

     Abraham
     Aderholt
     Allen
     Amash
     Amodei
     Babin
     Barletta
     Barr
     Barton
     Benishek
     Bilirakis
     Bishop (MI)
     Blackburn
     Blum
     Bost
     Boustany
     Brady (TX)
     Brat
     Bridenstine
     Brooks (AL)
     Brooks (IN)
     Buchanan
     Buck
     Bucshon
     Burgess
     Byrne
     Calvert
     Carter (GA)
     Carter (TX)
     Chabot
     Clawson (FL)
     Coffman
     Cole
     Collins (GA)
     Collins (NY)
     Comstock
     Conaway
     Cook
     Costello (PA)
     Cramer
     Crawford
     Crenshaw
     Cuellar
     Culberson
     Curbelo (FL)
     Davis, Rodney
     Denham
     Dent
     DeSantis
     DesJarlais
     Diaz-Balart
     Dold
     Donovan
     Duffy
     Duncan (SC)
     Duncan (TN)
     Ellmers (NC)
     Emmer (MN)
     Farenthold
     Fitzpatrick
     Fleischmann
     Fleming
     Flores
     Forbes
     Fortenberry
     Foxx
     Franks (AZ)
     Frelinghuysen
     Garamendi
     Garrett
     Gibbs
     Gibson
     Gohmert
     Goodlatte
     Gosar
     Gowdy
     Granger
     Graves (GA)
     Graves (LA)
     Graves (MO)
     Griffith
     Grothman
     Guinta
     Guthrie
     Hanna
     Hardy
     Harper
     Harris
     Hartzler
     Heck (NV)
     Hensarling
     Hice, Jody B.
     Hill
     Holding
     Hudson
     Huelskamp
     Huizenga (MI)
     Hultgren
     Hunter
     Hurd (TX)
     Hurt (VA)
     Issa
     Jenkins (KS)
     Jenkins (WV)
     Johnson (OH)
     Johnson, Sam
     Jolly
     Jordan
     Joyce
     Katko
     Kelly (MS)
     Kelly (PA)
     King (IA)
     King (NY)
     Kinzinger (IL)
     Kline
     Knight
     LaHood
     LaMalfa
     Lamborn
     Lance
     Latta
     LoBiondo
     Long
     Loudermilk
     Lucas
     Luetkemeyer
     Lummis
     MacArthur
     Marchant
     Marino
     Massie
     McCarthy
     McCaul
     McClintock
     McHenry
     McKinley
     McMorris Rodgers
     McSally
     Meadows
     Meehan
     Messer
     Mica
     Miller (FL)
     Miller (MI)
     Moolenaar
     Mooney (WV)
     Mullin
     Mulvaney
     Murphy (PA)
     Neugebauer
     Newhouse
     Nunes
     Olson
     Palazzo
     Palmer
     Paulsen
     Pearce
     Perry
     Peters
     Peterson
     Pittenger
     Pitts
     Poe (TX)
     Poliquin
     Pompeo
     Posey
     Price, Tom
     Ratcliffe
     Renacci
     Ribble
     Rice (SC)
     Rigell
     Roby
     Roe (TN)
     Rogers (AL)
     Rogers (KY)
     Rohrabacher
     Rokita
     Rooney (FL)
     Ros-Lehtinen
     Roskam
     Ross
     Rothfus
     Rouzer
     Royce
     Russell
     Salmon
     Sanford
     Schweikert
     Scott, Austin
     Sensenbrenner
     Sessions
     Shimkus
     Shuster
     Simpson
     Sinema
     Smith (MO)
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Stefanik
     Stewart
     Stivers
     Stutzman
     Thompson (PA)
     Thornberry
     Tiberi
     Tipton
     Trott
     Turner
     Upton
     Valadao
     Wagner
     Walberg
     Walden
     Walker
     Walorski
     Walters, Mimi
     Weber (TX)
     Webster (FL)
     Wenstrup
     Westerman
     Westmoreland
     Whitfield
     Williams
     Wilson (SC)
     Wittman
     Womack
     Woodall
     Yoder
     Young (AK)
     Young (IA)
     Young (IN)
     Zeldin

                               NOES--171

     Adams
     Aguilar
     Ashford
     Beatty
     Becerra
     Bera
     Beyer
     Bishop (GA)
     Bonamici
     Brady (PA)
     Brownley (CA)
     Bustos
     Butterfield
     Capps
     Capuano
     Cardenas
     Carney
     Carson (IN)
     Cartwright
     Castor (FL)
     Castro (TX)
     Cicilline
     Clark (MA)
     Clarke (NY)
     Clay
     Cleaver
     Clyburn
     Cohen
     Connolly
     Conyers
     Cooper
     Costa
     Courtney
     Crowley
     Cummings
     Davis (CA)
     Davis, Danny
     DeFazio
     DeGette
     Delaney
     DeLauro
     DelBene
     DeSaulnier
     Deutch
     Dingell
     Doggett
     Doyle, Michael F.
     Duckworth
     Edwards
     Ellison
     Engel
     Eshoo
     Esty
     Farr
     Fattah
     Foster
     Frankel (FL)
     Fudge
     Gabbard
     Gallego
     Graham
     Grayson
     Green, Al
     Green, Gene
     Gutierrez
     Hahn
     Hastings
     Heck (WA)
     Higgins
     Himes
     Hinojosa
     Honda
     Hoyer
     Huffman
     Israel
     Jackson Lee
     Jeffries
     Johnson, E. B.
     Jones
     Kaptur
     Keating
     Kelly (IL)
     Kennedy
     Kildee
     Kilmer
     Kind
     Kirkpatrick
     Kuster
     Langevin
     Larsen (WA)
     Larson (CT)
     Lawrence
     Lee
     Levin
     Lewis
     Lieu, Ted
     Lipinski
     Loebsack
     Lofgren
     Lowenthal
     Lowey
     Lujan Grisham (NM)
     Lujan, Ben Ray (NM)
     Lynch
     Maloney, Carolyn
     Maloney, Sean
     Matsui
     McCollum
     McDermott
     McGovern
     McNerney
     Meeks
     Meng
     Moulton
     Murphy (FL)
     Napolitano
     Neal
     Nolan
     Norcross
     O'Rourke
     Pallone
     Pascrell
     Payne
     Pelosi
     Perlmutter
     Pingree
     Pocan
     Polis
     Price (NC)
     Quigley
     Rice (NY)
     Richmond
     Roybal-Allard
     Ruiz
     Ruppersberger
     Rush
     Ryan (OH)
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schrader
     Scott (VA)
     Scott, David
     Serrano
     Sewell (AL)
     Sherman
     Sires
     Slaughter
     Swalwell (CA)
     Takai
     Takano
     Thompson (CA)
     Thompson (MS)
     Titus
     Tonko
     Torres
     Tsongas
     Van Hollen
     Vargas
     Veasey
     Vela
     Velazquez
     Visclosky
     Walz
     Wasserman Schultz
     Waters, Maxine
     Watson Coleman
     Welch
     Yarmuth

                             NOT VOTING--27

     Bass
     Bishop (UT)
     Black
     Blumenauer
     Boyle, Brendan F.
     Brown (FL)
     Chaffetz
     Chu, Judy
     Fincher
     Grijalva
     Herrera Beutler
     Johnson (GA)
     Labrador
     Love
     Moore
     Nadler
     Noem
     Nugent
     Rangel
     Reed
     Reichert
     Scalise
     Smith (WA)
     Speier
     Wilson (FL)
     Yoho
     Zinke

                              {time}  1106

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Stated for:
  Mr. REED. Mr. Speaker, on rollcall No. 137, I was unavoidably 
detained. Had I been present, I would have voted ``yes.''
  Mrs. BLACK. Mr. Speaker, on rollcall No. 137 for passage of H.R. 2745 
which took place on Wednesday, March 23, 2016, I am not recorded 
because I was unavoidably detained at the Supreme Court. Had I been 
present, I would have voted ``aye'' on rollcall No. 137 for passage of 
H.R. 2745.
  Stated against:
  Ms. MOORE. Mr. Speaker, during rollcall vote No. 137, I was 
unavoidably detained. Had I been present, I would have voted ``no.''

                          ____________________