[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

[[Page S4520]]

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

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