[Congressional Record Volume 167, Number 103 (Monday, June 14, 2021)]
[Senate]
[Pages S4519-S4521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. LEE (for himself and Mr. Grassley):
S. 2039. A bill to improve the antitrust laws, and for other
purposes; to the Committee on the Judiciary.
Mr. LEE. Mr. President, I rise today to introduce a piece of
legislation called the Tougher Enforcement Against Monopolists Act, or
the TEAM Act. I am grateful that my good friend and ranking member of
the Judiciary Committee, the senior Senator from Iowa, Chuck Grassley,
has joined me as a cosponsor of the bill.
Now, I am aware that our House colleagues just recently introduced
several bills intended to fight anti-competitive conduct by Big Tech.
Those bills, in my view, don't go far enough. America is facing a
panoply of competition concerns not just in Big Tech but across the
entire economy. We need a holistic approach that benefits all
consumers, in every industry. We need to deal with all the monopolists
hurting competition.
Even worse, the House bills not only have too small of a target, but
they use too big of a sledgehammer to hit it. They create a truly
massive expansion of Federal regulatory power and are the first steps
toward a command-and-control economy.
Responding to Big Tech with Big Government is adding insult to
injury, not to mention something I doubt any conservative will be able
to support. We don't need a bigger government. We need to make the one
we have work better.
The TEAM Act avoids each of these mistakes. Instead of a narrow focus
and Big Government approach, this bill will improve Federal antitrust
enforcement for the entire economy without making government bigger.
The TEAM Act improves antitrust law in two ways. The first is putting
all of our antitrust enforcers on one team. The TEAM Act unites our two
Federal antitrust enforcement Agencies into one. For over a century,
American antitrust enforcement has been something of a two-headed
creature sometimes at odds with itself. The results have been delays to
enforcement and consumer redress, uncertainty for businesses, and even
conflicting antitrust enforcement policy.
Just recently, the two Agencies actually argued against each other on
opposite sides of an appeal before the U.S. Court of Appeals for the
Ninth Circuit. This arrangement isn't working for anyone--anyone, that
is, perhaps, except corporations looking for an opportunity to game the
system.
I hope that the bill can also put our two parties on the same team
when it comes to antitrust reform. Our present reform movement is
filled with bipartisan fervor to improve the lives of our constituents
by improving competition in the markets that serve them and protecting
them from the monopolists that exercise so much unearned power over
huge swaths of our economy. Now, we don't agree on everything, but we
do agree on this. It is my sincere belief that this bill represents the
best and, hopefully, most bipartisan path forward.
That brings me to the second focus of the bill: preventing antitrust
harm by monopolists. I use the term ``antitrust harm'' here very
deliberately. In certain corners of the antitrust policy world, it has
become fashionable to talk of being pro-monopoly or anti-monopoly,
which is often tied to being pro- or anti-democracy. That is also
deliberate terminology, and I think it is dangerous. It is a sleight of
hand meant to move the conversation away from specific conduct and
whether that conduct harms competition, to do so regardless and to
instead imply that all that matters in this context, in this inquiry,
is size and whether you support or defend a business based on its size.
That position is both unserious and economically indefensible. Even the
briefest, most passing moment of reflection on this will demonstrate
its absurdity.
If you are anti-monopoly, are you also anti-patent? Patents are,
after all, government-granted monopolies. The entire purpose of the
patent is to allow
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its holder to exclude competition for a limited period of time and
charge the highest price that the market will bear. But we allow this
because the prospect of collecting monopoly profits acts as an
incentive to innovate and invest in new ideas.
The same principle is at work in market monopolies. The prospect of
obtaining a monopoly through competition on the merits incentivizes
competitors to offer consumers better products and services at lower
prices. This free market system built on competition and innovation is
responsible for many of the great achievements of mankind and the
economic flourishing of the greatest civilization the world has ever
known.
But even more important is the foundational principle of our Republic
that the law deals with conduct, not status. We punish people for what
they do, not who they are. ``Big is bad'' abandons that fundamental
American principle of law. Instead, the facile insistence on being
simply ``anti-monopoly'' belies the proponents' true priorities. It
means being anti-business even when it hurts consumers. It is the
economic version of cutting off your nose to spite your face.
The ``big is bad'' philosophy is also part of a broader effort to
overturn the consumer welfare standard. This critical component of U.S.
antitrust law has been widely misunderstood, often as a result of
willful misrepresentation. The consumer welfare standard does not
protect monopolists. It does not mean the government loses, and it is
decidedly not limited to a narrow focus on prices.
Rather, the consumer welfare standard is a statement about the
overarching goals of antitrust law; namely, that the purpose of
antitrust is to advance the economic welfare of consumers as opposed to
protecting the competitors themselves or advancing unrelated social
policies.
As I note in my introduction to the new edition of ``The Antitrust
Paradox,'' Judge Robert Bork himself explicitly described the consumer
welfare standard as being broader than an inquiry into price, and it is
one that certainly includes an inquiry into quality, innovation, and
consumer choice. In other words, whatever consumers value, that is what
is captured by ``consumer welfare.''
But it is much easier to argue against the consumer welfare standard
by pretending that it only cares about lower prices and, therefore, is
incapable of addressing consumer harm in markets with free products,
such as many online services. This misrepresentation says a lot about
the true goals of the so-called anti-monopoly crowd. If they really
cared about the nonprice facets of competition, they wouldn't need to
abandon the consumer welfare standard to promote it. But that isn't
their true goal.
The real problem they have with the consumer welfare standard is the
way that it constrains judges from advancing unrelated policy goals. It
turns out the push to abandon the consumer welfare standard is not
about stopping monopolies or helping consumers. It is simply a Trojan
horse for woke social policy.
Now, a proper application of the antitrust laws does have political
benefits--what Utah's State constitution refers to as ``the dispersion
of economic and political power''--but those are secondary benefits.
Antitrust is not primarily a political tool.
If a company acquires market power as a result of competing on the
merits, then any influence that flows from that will, at least, be a
result of consumer choices. Just as citizens vote at the ballot box,
consumers vote at the checkout aisle. But if that market power is
obtained or grown through nefarious or anti-competitive means, the
resulting market power is illegitimate and a threat to the Republic,
which leads to the point that, of course, many monopolies are bad. They
are genuinely bad.
These are those monopolies obtained or prolonged not through
competition on the merits but through anti-competitive and exclusionary
conduct. This conduct obstructs rather than facilitates the natural
operation of the free market, using raw market power to prevent
consumers from making optimal choices and then starving them of lower
prices, higher quality, and new offerings.
Competitive conduct benefits both businesses and consumers. Anti-
competitive conduct only helps the monopolist.
Unfortunately, there have been attempts to defend some anti-
competitive conduct. This is most often done through the use of
speculative and convoluted economic models that claim to predict the
future, almost always predicting that a merger or specific conduct
won't actually harm competition.
We have, sadly, seen an overcorrection from the days lamented by
Judge Bork when courts and enforcers ignored basic economic analysis.
Now ``the age of sophists, economists, and calculators has succeeded,''
and our antitrust enforcement efforts are frequently hampered by what
Judge Bork called an ``economic extravaganza.'' The result has been
that some conduct and mergers that should have been condemned have
instead escaped much needed scrutiny.
All of this is why the TEAM Act categorically rejects the Manichean
belief that big is always bad, while still acknowledging that
concentrated economic power can be just as dangerous as concentrated
political power, and, in fact, one often leads to the other In this
way, it embraces antitrust laws as sort of federalism for the economy,
and it does so by focusing not on mere size but on antitrust harm; that
is, whether something actually harms consumers by harming competition.
The bill strengthens our ability to prevent and correct antitrust
harm in three ways.
The TEAM Act strengthens the antitrust laws. It includes a market
share-based merger presumption, improves the HSR Act, codifies the
consumer welfare standard, and makes it harder for monopolists to
justify or excuse anti-competitive comment.
The TEAM Act strengthens antitrust enforcers. In addition to
consolidating Federal antitrust enforcement at the Department of
Justice, the bill also includes a version of the Merger Filing Fee
Modernization Act, introduced by Senators Klobuchar and Grassley. Most
significantly, the bill roughly doubles the amount of money
appropriated to Federal antitrust enforcement, ensuring that our
antitrust enforcers have all the resources they need to protect
American consumers.
The TEAM Act strengthens anti-trust remedies. The bill repeals
Illinois Brick and Hanover Shoe to ensure that consumers are able to
recover damages from anticompetitive conduct. Even more significantly,
the bill allows the Justice Department to recover trebled damages on
behalf of consumers and imposes civil fines for knowingly violating the
antitrust laws.
Now, I believe these reforms reflect the best way to strike the
balance of protecting competition and consumer welfare, while limiting
government intervention in the free market. In an era in which would-be
monopolists want to move fast and break things, it is essential that
our antitrust enforcers are empowered to move fast and break them up.
This is the prudent and the conservative approach. Better antitrust
enforcement means less regulation and thus smaller government.
This is also a wiser approach than attempting to statutorily prohibit
certain categories of conduct. That approach abandons one of the
greatest strengths of American antitrust law: the fact-specific nature
of every inquiry. Case-by-case adjudication is what allows us to
maximize enforcement while minimizing false positives. The TEAM Act
avoids the black-and-white pronouncements of other legislative
proposals and instead updates the mechanics of how the antitrust laws
are applied to address the enforcement gaps of recent decades.
As I have said before, we find ourselves at a critical moment. The
threat to competition and free markets is real. Doing nothing is not an
option. At the same time, we simply cannot allow the need to ``do
something'' to push us into embracing bad policy that will have
unintended consequences and push America closer to a government-
regulated economy.
I look forward to working closely with my colleagues and with friends
on both sides of the aisle and at both ends of the Capitol in order to
advance the TEAM Act and help protect American consumers
[[Page S4521]]
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