[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.''
____________________