[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[House]
[Pages H8252-H8264]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MERGER FILING FEE MODERNIZATION ACT OF 2022
Mr. NADLER. Mr. Speaker, pursuant to House Resolution 1396, I call up
the bill (H.R. 3843) to promote antitrust enforcement and protect
competition through adjusting premerger filing fees, and increasing
antitrust enforcement resources, and ask for its immediate
consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Crow). Pursuant to House Resolution
1396, in lieu of the amendment in the nature of a substitute
recommended by the Committee on the Judiciary printed in the bill, an
amendment in the nature of a substitute consisting of the text of Rules
Committee Print 117-66 is adopted and the bill, as amended, is
considered read.
The text of the bill, as amended, is as follows:
H.R. 3843
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Merger
Filing Fee Modernization Act of 2022''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--MODERNIZING MERGER FILING FEE COLLECTIONS; ACCOUNTABILITY
REQUIREMENTS; LIMITATION ON FUNDING
Sec. 101. Modification of premerger notification filing fees.
Sec. 102. Reporting requirements for merger fee collections.
TITLE II--DISCLOSURE OF SUBSIDIES BY FOREIGN ADVERSARIES
Sec. 201. Findings and purpose.
Sec. 202. Mergers involving foreign government subsidies.
TITLE III--VENUE FOR STATE ANTITRUST ENFORCEMENT
Sec. 301. Venue for State Antitrust Enforcement.
TITLE I--MODERNIZING MERGER FILING FEE COLLECTIONS; ACCOUNTABILITY
REQUIREMENTS; LIMITATION ON FUNDING
SEC. 101. MODIFICATION OF PREMERGER NOTIFICATION FILING FEES.
Section 605 of Public Law 101-162 (15 U.S.C. 18a note) is
amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) by striking ``$45,000'' and inserting ``$30,000'';
(ii) by striking ``$100,000,000'' and inserting
``$161,500,000'';
(iii) by striking ``2004'' and inserting ``2023''; and
(iv) by striking ``2003'' and inserting ``2022'';
(B) in paragraph (2)--
(i) by striking ``$125,000'' and inserting ``$100,000'';
(ii) by striking ``$100,000,000'' and inserting
``$161,500,000'';
(iii) by striking ``but less'' and inserting ``but is
less''; and
(iv) by striking ``and'' at the end;
(C) in paragraph (3)--
(i) by striking ``$280,000'' and inserting ``$250,000'';
and
(ii) by striking the period at the end and inserting ``but
is less than $1,000,000,000 (as so adjusted and
published);''; and
(D) by adding at the end the following:
``(4) $400,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C.
18a(a)(2)) is not less than $1,000,000,000 (as so adjusted
and published) but is less than $2,000,000,000 (as so
adjusted and published);
``(5) $800,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C.
18a(a)(2)) is not less than $2,000,000,000 (as so adjusted
and published) but is less than $5,000,000,000 (as so
adjusted and published); and
``(6) $2,250,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C.
18a(a)(2)) is not less than $5,000,000,000 (as so adjusted
and published).''; and
(2) by adding at the end the following:
``(c)(1) For each fiscal year commencing after September
30, 2023, the filing fees in this section shall be increased
by an amount equal to the percentage increase, if any, in the
Consumer Price Index, as determined by the Department of
Labor or its successor, for the year then ended over the
level so established for the year ending September 30, 2022.
``(2) As soon as practicable, but not later than January 31
of each year, the Federal Trade Commission shall publish the
adjusted amounts required by paragraph (1).
``(3) The Federal Trade Commission shall not adjust amounts
required by paragraph (1) if the percentage increase
described in paragraph (1) is less than 1 percent.
``(4) An amount adjusted under this section shall be
rounded to the nearest multiple of $5,000.''.
SEC. 102. REPORTING REQUIREMENTS FOR MERGER FEE COLLECTIONS.
(a) FTC and DOJ Joint Report.--For each of fiscal years
2023 through 2027, the Federal Trade Commission and
Department of Justice shall jointly and annually report to
the Congress on the operation of section 7A of the Clayton
Act (15 U.S.C. 18a) and shall include in such report the
following:
(1) The amount of funds made available to the Federal Trade
Commission and the Department of Justice, respectively, from
the premerger notification filing fees under this section, as
adjusted by the Merger Filing Fee Modernization Act of 2022,
as compared to the funds made available to the Federal Trade
Commission and the Department of Justice, respectively, from
premerger notification filing fees as the fees were
determined in fiscal year 2022.
(2) The total revenue derived from premerger notification
filing fees, by tier, by the Federal Trade Commission and the
Department of Justice, respectively.
(3) The gross cost of operations of the Federal Trade
Commission, by Budget Activity, and the Antitrust Division of
the Department of Justice, respectively.
(b) FTC Report.--The Federal Trade Commission shall include
in the report required under subsection (a), in addition to
the requirements under subsection (a), for the previous
fiscal year--
(1) for actions with respect to which the record of the
vote of each member of the Federal Trade Commission is on the
public record of the Federal Trade Commission, a list of each
action with respect to which the Federal Trade Commission
took or declined to take action on a 3 to 2 vote; and
(2) for all actions for which the Federal Trade Commission
took a vote, the percentage of such actions that were decided
on a 3 to 2 vote.
(c) Summary.--The Federal Trade Commission and the
Department of Justice shall make the report required under
subsection (a) available to the Committees on the Judiciary
of the House of Representatives and of the Senate, and shall,
for fiscal years 2023 through 2027, no later than July 1,
present a summary of the joint annual report for the
preceding fiscal year, including the information required in
subsections (a) and (b) of this section, to the Committees on
the Judiciary of the House of Representatives and of the
Senate.
TITLE II--DISCLOSURE OF SUBSIDIES BY FOREIGN ADVERSARIES
SEC. 201. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Foreign subsidies, which can take the form of direct
subsidies, grants, loans (including below-market loans), loan
guarantees, tax concessions, preferential government
procurement policies, or government ownership or control, can
distort the competitive process by enabling the subsidized
firm to submit a bid higher than other firms in the market,
or otherwise change the incentives of the firm in ways that
undermine competition following an acquisition.
(2) Foreign subsidies are particularly problematic when
granted by countries or entities that constitute a strategic
or economic threat to United States interests.
(3) The Made in China 2025 plan, states that the Chinese
Communist Party will ``support enterprises to carry out
mergers and acquisitions (M&A), equity investment, and
venture capital overseas''.
(4) The 2020 report to Congress from the bipartisan U.S.-
China Economic and Security Review Commission concluded that
the Chinese Government subsidizes companies with a goal of
their expanding into the United States and other countries,
finding that ``[t]his process assists Chinese national
champions in surpassing and
[[Page H8253]]
supplanting global market leaders''. The report warns that
the risk is particularly acute when it comes to emerging
technologies, where China seeks to ``surpass and displace the
United States altogether [and that] [f]ailure to appreciate
the gravity of this challenge and defend U.S. competitiveness
would be dire . . . [and] risks setting back U.S. economic
and technological progress for decades''.
(5) In remarks before the Hudson Institute on December 8,
2020, FTC Commissioner Noah Phillips stated, ``[O]ne area
where antitrust needs to reckon with the strategic interests
of other nations is when we scrutinize mergers or conduct
involving state-owned entities . . . companies that are
controlled, to varying degrees, by the state . . . [and]
often are a government tool for implementing industrial
policies or to protect national security''.
(b) Purpose.--The purpose of this section is to require
parties providing pre-merger notifications to include in the
notification required under section 7A of the Clayton Act (15
U.S.C. 18a) information concerning subsidies they receive
from countries or entities that are strategic or economic
threats to the United States.
SEC. 202. MERGERS INVOLVING FOREIGN GOVERNMENT SUBSIDIES.
(a) Definition.--In this section, the term ``foreign entity
of concern'' has the meaning given the term in section 40207
of the Infrastructure Investment and Jobs Act (42 U.S.C.
18741(a)).
(b) Accounting for Foreign Government Subsidies.--A person
required to file a notification under section 7A of the
Clayton Act (15 U.S.C. 18a) that received a subsidy from a
foreign entity of concern shall include in such notification
content regarding such subsidy.
(c) Authority of Antitrust Regulators.--The Federal Trade
Commission, with the concurrence of the Assistant Attorney
General in charge of the Antitrust Division of the Department
of Justice, and in consultation with the Chairperson of the
Committee on Foreign Investment in the United States, the
Secretary of Commerce, the Chair of the United States
International Trade Commission, the United States Trade
Representative, and the heads of other appropriate agencies,
and by rule in accordance with section 553 of title 5, United
States Code, shall require that the notification required
under subsection (b) be in such form and contain such
documentary material and information relevant to a proposed
acquisition as is necessary and appropriate to enable the
Federal Trade Commission and the Assistant Attorney General
in charge of the Antitrust Division of the Department of
Justice to determine whether such acquisition may, if
consummated, violate the antitrust laws.
(d) Effective Date.--Subsection (b) shall take effect on
the date on which the rule described in subsection (c) takes
effect.
TITLE III--VENUE FOR STATE ANTITRUST ENFORCEMENT
SEC. 301. VENUE FOR STATE ANTITRUST ENFORCEMENT.
Section 1407 of title 28, United States Code, is amended--
(1) in subsection (g) by inserting ``or a State'' after
``United States'' and striking ``; but shall not include
section 4A of the Act of October 15, 1914, as added July 7,
1955 (69 Stat. 282; 15 U.S.C. 15a)''; and
(2) by striking subsection (h).
The SPEAKER pro tempore. The bill, as amended, shall be debatable for
1 hour equally divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary or their respective designees.
The gentleman from New York (Mr. Nadler) and the gentleman from Ohio
(Mr. Jordan) each will control 30 minutes.
The Chair recognizes the gentleman from New York (Mr. Nadler).
General Leave
Mr. NADLER. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
insert extraneous material on H.R. 3843.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, H.R. 3843 is bicameral, bipartisan legislation that
consists of three distinct titles, each of which would make modest, but
important improvements to modernize our antitrust system and to help
protect competition.
Title I of the bill updates the filing fees that merging parties pay
to the Federal antitrust enforcers that review their transactions.
These fees have not been updated in two decades, which has left these
agencies in desperate need of more resources to complete their
increasingly heavy workload.
This bill raises the fees that parties pay for large transactions and
lowers the fee that parties pay for small- and medium-sized
transactions, which ensures that larger deals pay their fair share.
Critically, this legislation raises revenue to support necessary
antitrust enforcement while also saving taxpayers $1.4 billion over the
next 5 years.
Title II of the bill requires merging parties to notify the antitrust
agencies if they are subsidized by countries or entities that are
strategic or economic threats to the United States.
This notification requirement gives the agencies immediate access to
the information they need to assess the full competitive consequences
of subsidized transactions and enables them to better protect U.S.
economic interests when they review proposed mergers.
Title III of this legislation ensures that States do not have to
waste precious time and taxpayer dollars when they litigate antitrust
suits in Federal courts. It does this by exempting State enforcement of
the Federal antitrust laws from the often time-consuming and costly
multidistrict litigation process. Federal antitrust enforcement
agencies are already exempt from this process, and the bill simply puts
State antitrust enforcement on equal footing with the Federal
Government.
Each element of this legislation enjoys bicameral, bipartisan
support. Titles I and II have already passed the House as part of the
America COMPETES Act, and title III passed the Senate by unanimous
consent.
Together, they would help ensure that our antitrust agencies have the
resources they need to protect competition, would provide important
disclosures about foreign economic adversaries, and would strengthen
State enforcement of our antitrust laws.
I thank Mr. Neguse for sponsoring this important package of
bipartisan legislation. I also thank Mr. Cicilline and Mr. Buck, the
chair and ranking member of the Antitrust Subcommittee, for their
leadership on these bills and on competition issues generally.
I urge all Members to support this legislation, and I reserve the
balance of my time.
Mr. JORDAN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I strongly urge my colleagues to vote ``no.'' While
parts of this bill have some support, the package before us today does
nothing but empower the Department of Justice and the Federal Trade
Commission.
Why would we support more funding for unaccountable officials in the
Biden administration, particularly these two agencies, the Department
of Justice, in light of what we have seen from them over the past
several months?
Time and time again, they have weaponized that agency to go after the
American people.
Now, some are asserting that oh, no, this wouldn't give more money to
the bureaucracy. But this is the kind of Washington budget gimmick that
the swamp uses to grow government all the time.
In the majority's own committee report on the bill they acknowledge
``the updated fee structure would provide the U.S. Department of
Justice and the Federal Trade Commission with additional resources to
review mergers and enforce the antitrust laws; more money for Merrick
Garland and the DOJ to harass the American people.
{time} 1230
Even proponents of the bill are talking about how this would get
resources to the agencies while saying it doesn't include an
appropriation. This logic is laughable.
We know where this money is going. In fact, the chairman of the
committee said in his opening remarks that the DOJ and FTC are ``in
desperate need of more resources.'' We know where this money is going,
$280 million, $140 million to each agency, every single year.
Congress has already appropriated money to hire 87,000 new IRS
agents, and now we are going to give hundreds of millions of dollars to
the DOJ and the FTC. Such a deal for the taxpayer. Where does it stop?
If you want to do something about Big Tech, this bill is not the
vehicle. A bill that empowers these two agencies to, I think, collude
with Big Tech to come after conservatives is not the way to go. I hope
we can vote this down.
Mr. Speaker, as I said before, I urge a ``no'' vote, and I reserve
the balance of my time.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the gentlewoman from
California (Ms. Lofgren).
Ms. LOFGREN. Mr. Speaker, I rise in opposition to this bill, and I do
so reluctantly, because title I, raising the
[[Page H8254]]
fees for enforcement, I am for that. As a matter of fact, I am a
cosponsor of that bill. And title II, the foreign measure, I am for
that.
But title III is going to create a problem. This has been advanced as
if it is noncontroversial. That is not the case. It is complicated. Let
me try and be very simple.
In 1968, Congress enacted a provision where if there was a
multiplicity of antitrust lawsuits filed by State AGs who have
concurrent jurisdiction, a senior panel could consolidate the cases so
you wouldn't have inconsistent discovery, inconsistent decisions
outside of the various regions.
You don't need that with the Department of Justice because they do
the consolidation internally when they bring the case. That is why it
worked for the AGs, and it has worked very well for a long time.
Contrary to what some have said, this is not a tech change. This is a
venue change for all businesses, which is why I think the Chamber of
Commerce said they would score the vote.
I think we need to listen to the main proponent, Mr. Buck, on this.
Last night, during the rule debate, he said Big Tech is crushing
competition and crushing conservative speech, and that is what his
venue bill is about, to prevent moderation of speech.
Content moderation is important. We have seen, in the January 6th
Committee, a lot of material that has spread lies, that has incited
violence, and that content should be moderated. It should not be
subject to a bogus effort by State AGs to prevent content moderation
through the antitrust provision.
To claim that that would not happen, I mean, AGs can bring cases
right now without this provision--in fact, California just did against
Amazon. Fine. Go at it if you have a case. But if you don't think that
the attorney general of Texas, who is currently hiding from a process
server and facing other legal complications, wouldn't try to use this
to undermine content moderation, I think you are sadly mistaken.
That would be, I am sure, for my Democratic colleagues, not their
intent, but that would be a very sad result that would not be good for
our country.
Now, if we turn this bill down, I am sure what will happen is that
the Committee on Rules will put the first two provisions that have
broad support in our party back up, and I will happily vote for them,
to give the resources for enforcement and the like.
Mr. Speaker, I urge a ``no'' vote on this measure, with great sadness
that we have been put in this spot.
Mr. JORDAN. Mr. Speaker, I yield myself such time as I may consume.
I will respond to the gentlewoman from California. I appreciate the
fact that she is a ``no'' on this bill, but I think her logic is all
wrong. This bill would actually give $140 million to the DOJ so they
can continue to do what they are already doing, work with Big Tech to
censor certain information from getting to we the people.
Why do I say that? Because we know it happened. Just a month ago,
Mark Zuckerberg said the FBI came and told him not to allow the story
about Hunter Biden's laptop to be on their platform. They gave him the
old wink-wink, oh, we think this is Russian disinformation, which we
know it wasn't. Now, we are going to give that agency $140 million more
to go collude with Big Tech to keep we the people from getting valuable
information before the most important election that we have, the
election of the Commander in Chief of our country?
That is why this thing is so scary and why we should be against it.
Mr. Speaker, I yield 4 minutes to the gentleman from Louisiana (Mr.
Johnson).
Mr. JOHNSON of Louisiana. Mr. Speaker, we are deeply concerned about
this for the reasons that are stated.
There are a lot of people who are confused about it because what they
have done here is they have taken three pieces of legislation, three
titles, and merged them into one.
I don't have a problem with two of the three. In response to Ms.
Lofgren, I think that antitrust enforcement provision is okay because
currently it is not explained what the U.S. Judicial Panel on
Multidistrict Litigation can transfer are State AGs' antitrust cases
that arise under Federal laws to other jurisdictions. That title would
prevent that from happening. We are okay with that. I voted for that in
committee.
But one of the other titles here is the disclosure of subsidies by
foreign adversaries. We didn't get any regular order on that. We didn't
get to actually debate that, mark it up in committee. The substance of
that one is okay because it would require parties to notify when they
receive subsidies from countries that are threats to the U.S. when
filing a merger. We all agree on that.
The problem is, the thing we are so concerned about, is what Ranking
Member Jordan has just talked about, the Merger Filing Fee
Modernization Act.
For folks who are trying to follow this back home, this would change
filing fees paid by companies seeking regulatory approval for mergers.
It would reduce the fees for deals valued under $1 billion, and it
would raise them for the larger mergers, over $1 billion.
Now, here is the problem. All of this sounds fine so far, but here is
the problem. There are no restrictions on the use of the additional
funding that is generated by these fees. And the FTC and the DOJ will
have even more power to institute their bad policies. This is not a de
minimus amount. We are talking about $1.5 billion over 5 years. That is
a lot of money.
Just so you know, since President Biden took office, the FTC has
pursued radical goals beyond its jurisdiction. One Commissioner said
she supports prioritizing FTC investigations relating to systematic
racism and rulemaking for racist practices. These are very amorphous
terms. They have been abused and used for all sorts of nefarious
purposes.
Republican Commissioner Wilson described Democrat goals as rooted in
``a unified worldview that draws heavily on . . . Marxism.'' That is at
the FTC.
Some of the actions of the Chair, Lina Khan, are just outrageous,
what she has done.
The DOJ, of course, has indeed been weaponized. We have been talking
about that in committee. We have been laying out the evidence, and we
will be presenting that to the American people in the new Congress that
begins in January.
If what the chairman of the Committee on the Judiciary, Mr. Nadler,
said is true, that they are ``in desperate need of more resources,''
maybe they could have not spent money and resources by siccing the FBI
and all the U.S. Attorney's Offices on parents who are going to school
board meetings to object to curriculum that their kids are being
exposed to and mandates, school closures, and all the rest.
This is outrageous. These institutions have been weaponized, and the
people are losing their faith in them. We cannot, in good conscience,
stand on this floor and send them $1.5 billion to engage in more of
this madness.
We have no choice but to oppose the legislation for that reason, and
I think it is a good one. I think most of our colleagues are going to
agree.
Mr. NADLER. Madam Speaker, I must confess I am a little puzzled at
some of the remarks of Mr. Johnson. He says the FTC sics the FBI on
parents or whatever. The FTC has no jurisdiction over the FBI and has
nothing to do with them. The FTC is part of--never mind.
Mr. Speaker, I yield 5 minutes to the gentleman from Rhode Island
(Mr. Cicilline).
Mr. CICILLINE. Mr. Speaker, I thank the chairman for yielding.
H.R. 3843 is a modest yet critical first step to modernizing the
antitrust laws. It generates revenue; it makes foreign adversarial
interests in transactions more apparent; and it allows more streamlined
antitrust enforcement by State attorneys general.
On the first issue, I think there is general agreement that the fees
that are involved in mergers haven't been raised in decades. This
simply allows smaller mergers to pay less and larger mergers to pay
more.
There is no question about it--this issue came up at the Committee on
Rules--this bill does not fund a single additional dollar to any
agency. This is a revenue generator. There is no appropriation. The
appropriations process will require that this be treated like any other
revenue the Federal Government generates, in that the Appropriations
Committee, in regular order, will decide how to spend the money.
[[Page H8255]]
People should also not be concerned because, under the Consolidated
Appropriations Act of 2022, the DOJ Antitrust Division's use of
appropriated funds is limited to ``expenses necessary for the
enforcement of antitrust and kindred laws.'' There is already a
limitation.
It doesn't provide any additional funding. It simply generates
revenues and shifts burdens to the largest transactions so that the
taxpayers don't have to be responsible for their review.
In recent decades, the rising tide of economic concentration has
given rise to monopolies that exercise outsized influence over our
democracy and our political institutions. At the same time, the budgets
for antitrust enforcement agencies have not kept pace with the demands
placed on them.
As Brian Deese, the director of the National Economic Council,
explained: ``It is unacceptable for these agencies' resources to lag so
far behind the growth of the economy they are charged with
protecting.'' That is why the Biden-Harris administration issued a
Statement of Administration Policy in support of this bill.
We can have the fight about whether additional resources are
necessary during the appropriations process. This bill simply raises
the fees, gives smaller businesses a break, and doesn't appropriate a
single dollar.
Title III of the bill strengthens antitrust enforcement by preventing
the State antitrust actions from being dragged into private litigation
in another venue.
This legislation enjoys wide support among the States. Last year, the
National Association of Attorneys General and every single State
attorney general in the United States wrote a letter urging Congress to
pass the bill's amendment to the multidistrict litigation statute ``as
soon as possible so that our citizens can benefit from more efficient,
effective, and timely adjudication of antitrust actions.''
Mr. Speaker, I, too, urge my colleagues to vote in favor of this
legislation, and I applaud them for their sponsorship. I thank Mr.
Buck, who has been a tremendous leader on this package of bills. There
should be no question. Senator Lee, Senator Cotton, and Senator
Grassley have said that this package represents ``a strong bipartisan
consensus.''
These bills improve antitrust enforcement without appropriating any
more funds. You don't have to believe me. Those are your Republican
colleagues who made the same point.
In addition to that, this multijurisdiction litigation robs State
attorneys general who bring a Federal antitrust action in Federal court
from the ability to litigate in that court, which often, by dragging
them to another State, is a great benefit to the big corporations, to
the monopolists, but it is harmful to their own constituents, their
consumers, their businesses, which is why they support this
legislation.
Mr. Speaker, I include in the Record a number of items to reflect the
broad support enjoyed by H.R. 3843.
First, is a strong Statement of Administration Policy, which makes
clear this legislation is necessary to support the President's mission
to enforce the antitrust laws, to combat the excessive concentration of
industry, the abuse of market power, and the harmful effects of
monopoly and monopsony.
Second, is a letter of support for the State Antitrust Enforcement
Venue Act of 2021, signed by every attorney general in the United
States, including California's Rob Bonta, who makes clear that:
``States should accordingly be on equal footing with Federal enforcers
in deciding where, when, and how to prosecute cases'' and not subject
to a system where their enforcement actions ``may be subject to
transfer to a multidistrict litigation at the request of the
defendant,'' where the cases are typically ``postponed and may be
joined with other lawsuits brought by private plaintiffs.''
Third, is a letter from a broad coalition of 36 labor, consumer, and
public interest groups, including Public Citizen, Public Knowledge,
Open Markets Institute, AFL-CIO, Teamsters, and SEIU, which states:
``This bipartisan, bicameral legislation represents a critical first
step for Congress to reverse the course of lax antitrust enforcement
that has proved to be destructive to small businesses, workers,
communities, and innovation.''
Fourth, is a statement from Chris Jones of the National Grocers
Association, who says that: ``This bipartisan bill does not change the
antitrust laws; it takes the simple step of helping enforcers have a
better shot of deterring abusive marketplace conduct that American
consumers cannot afford right now.''
Finally, a statement from Diana Moss, president of the American
Antitrust Institute, states that: ``Additional resources are needed to
enable the U.S. Department of Justice Antitrust Division and the
Federal Trade Commission to review and investigate billion-dollar
deals.''
For all of those reasons, Mr. Speaker, I urge my colleagues to
support this commonsense package that will help to enhance competition,
give us the ability to improve our economy, and benefit consumers,
workers, innovators, and small businesses.
Statement of Administration Policy,
H.R. 3843--Merger Filing Fee Modernization Act of 2022--Rep. Neguse, D-
CO, and 39 cosponsors
The Administration supports House passage of H.R. 3843, the
Merger Filing Fee Modernization Act of 2022.
Open, fair, and competitive markets are essential to the
welfare of American families, workers, farmers, and
businesses. As the President stated in his Executive Order on
Promoting Competition in the American Economy, ``it is the
policy of my Administration to enforce the antitrust laws to
combat the excessive concentration of industry, the abuses of
market power, and the harmful effects of monopoly and
monopsony.'' The Act would support this critical mission in
three important respects.
First, to vigorously enforce the antitrust laws, the
Department of Justice (DOJ) and the Federal Trade Commission
(FTC) need the resources to do their jobs. Yet even as the
number, size, and complexity of mergers has grown, the amount
oft he filing fees that parties must pay in advance of
premerger review by the DOJ and the FTC has not kept pace.
Moreover, both agencies' annual appropriations support many
fewer employees today than they did in 1979, even though the
economy has grown significantly since then, and even though
the agencies' core missions involve bringing complex cases
against some of the best-resourced companies in the world.
The Act would update the regime for merger filing fees to
make it fairer and better targeted. The Act would reduce the
size of the fees required for smaller transactions, while
raising them for the largest mergers that often require the
most extensive reviews.
Second, the Act would respect the important role of State
Attorneys General in Federal antitrust enforcement by
harmonizing the process for transferring antitrust cases
filed by State Attorneys General with those filed by Federal
agencies. This would increase the efficiency and efficacy of
antitrust enforcement.
Third and finally, the Act would require disclosure of
merger subsidies by foreign adversaries. Requiring disclosure
of foreign subsidies, such as by Chinese and Russian
entities, in the premerger notification process would assist
the DOJ and the FTC in preventing anticompetitive
transactions through which adversaries could gain influence
over important parts of the economy.
The Administration encourages the House to pass the
bipartisan Merger Filing Fee Modernization Act of 2022 and
looks forward to working with Congress on this important
legislation.
____
National Association of
Attorneys General,
Washington, DC, June 18, 2021.
Hon. Amy Klobuchar,
Chair, Subcommittee on Competition Policy, Antitrust, &
Consumer Rights,
Washington, DC.
Hon. Michael Lee,
Ranking Member, Subcommittee on Competition Policy,
Antitrust, & Consumer Rights,
Washington, DC.
Hon. David N. Cicilline,
Chair, Subcommittee on Antitrust, Commercial and
Administrative Law,
Washington, DC.
Hon. Ken Buck,
Ranking Member, Subcommittee on Antitrust, Commercial and
Administrative Law,
Washington, DC.
Re Support for the State Antitrust Enforcement Venue Act of
2021
Dear Chairs Klobuchar and Cicilline and Ranking Members Lee
and Buck: We write to express our strong support for the
State Antitrust Enforcement Venue Act of 2021; H.R. 3460, S.
1787. State attorneys general around the country are actively
pursuing significant antitrust enforcement actions on behalf
of consumers in their respective states. Although these law
enforcement actions are brought in the public interest, they
may be subject to transfer to a multidistrict litigation at
the behest of defendants, where the cases are typically
postponed and may be joined with numerous other lawsuits
brought by private plaintiffs. Enforcement actions filed by
the Department of Justice or the Federal Trade Commission on
behalf of the United States, however, cannot be transferred
to a multidistrict litigation. 28 U.S.C.
[[Page H8256]]
Sec. 1407(g). Federal enforcers are entitled to select and
remain in their preferred venue and pursue relief without
undue delay and distractions caused by the particularized
interests of private plaintiffs. State antitrust enforcement
actions should be extended the same protections from transfer
as those brought on behalf of the United States.
As Congress has recognized, the states play an essential
role in the enforcement of competition laws in the United
States. States should accordingly be on equal footing with
federal enforcers in deciding where, when, and how to
prosecute cases. We appreciate your sponsorship of the State
Antitrust Enforcement Venue Act of 2021 and advocate for its
passage as soon as possible so that our citizens can benefit
from more efficient, effective, and timely adjudication of
antitrust actions.
Sincerely,
Phil Weiser, Colorado Attorney General; Jeff Landry,
Louisiana Attorney General; Treg R. Taylor, Alaska Attorney
General; Rob Bonta, California Attorney General; Karl A.
Racine, District of Columbia Attorney General; Christopher M.
Carr, Georgia Attorney General; Clare E. Connors, Hawaii
Attorney General.
William Tong, Connecticut Attorney General; Ken Paxton,
Texas Attorney General; Leslie Rutledge, Arkansas Attorney
General; Kathleen Jennings, Delaware Attorney General; Ashley
Moody, Florida Attorney General; Leevin Taitano Camacho, Guam
Attorney General; Lawrence Wasden, Idaho Attorney General.
Kwame Raoul, Illinois Attorney General; Tom Miller, Iowa
Attorney General; Daniel Cameon, Kentucky Attorney General;
Brian Frosh, Maryland Attorney General; Dana Nessel, Michigan
Attorney General; Lynn Fitch, Mississippi Attorney General;
Austin Knudsen, Montana Attorney General; Aaron D. Ford,
Nevada Attorney General; Gurbir S. Grewal, New Jersey
Attorney General.
Todd Rokita, Indiana Attorney General; Derek Schmidt,
Kansas Attorney General; Aaron M. Frey, Maine Attorney
General; Maura Healey, Massachusetts Attorney General; Keith
Ellison, Minnesota Attorney General; Eric S. Schmitt,
Missouri Attorney General; Douglas Peterson, Nebraska
Attorney General; John M. Formella, New Hampshire Attorney
General; Hector Balderas, New Mexico Attorney General.
Letitia James, New York, Attorney General; Wayne Stenehjem,
North Dakota Attorney General; Dave Yost, Ohio Attorney
General; Ellen F. Rosenblum, Oregon Attorney General; Domingo
Emanuelli-Hernandez, Puerto Rico Attorney General; Alan
Wilson, South Carolina Attorney General; Herbert H. Slatery
III, Tennessee Attorney General; T.J. Donovan, Vermont
Attorney General; Robert W. Ferguson, Washington Attorney
General.
Josh Stein, North Carolina Attorney General; Edward
Manibusan, Northern Mariana Islands Attorney General; Dawn
Cash, Oklahoma Acting Attorney General; Josh Shapiro,
Pennsylvania Attorney General; Peter F. Neronha, Rhode Island
Attorney General; Jason R. Ravnsborg, South Dakota Attorney
General; Sean Reyes, Utah Attorney General; Mark R. Herring,
Virginia Attorney General; Patrick Morrisey, West Virginia
Attorney General; Joshua L. Kaul, Wisconsin Attorney General;
Bridget Hill, Wyoming, Attorney General.
____
September 27, 2022.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Hon. Kevin McCarthy,
Minority Leader, House of Representatives,
Washington, DC.
Dear Speaker Pelosi and Leader McCarthy: We are writing to
urge you to vote ``yes'' on H.R. 3843, the Merger Filing Fee
Modernization Act of 2022. This bill will strengthen
enforcement of our antitrust laws by helping to inject much-
needed funds to the antitrust enforcement agencies, the
Department of Justice's Antitrust Division and the Federal
Trade Commission, and allow them to properly fulfill their
role safeguarding the economy and consumers from
anticompetitive conduct and harmful mergers. We task our
antitrust enforcers with a duty to protect us, and it is only
right we give them adequate resources to do so.
This legislation contains a package of important bipartisan
and bicameral proposals:
Title I: Modernizing Merger Filing Fee Collections: The
parties to a merger over a certain size pay a nominal fee to
the agencies when they seek merger review and this will
remain the case after the Merger Filing Fee Modernization
Act. The current fee structure is outdated; it has not kept
pace with the growth of the economy or with inflation. The
number of mergers has skyrocketed: notifications doubled from
2010 to 2020. The bipartisan, bicameral Merger Filing Fees
Modernization Act would lower fees for the smallest mergers.
Fees would be raised on only the very largest mergers or
acquisitions involving companies that can easily and
equitably pay the increase. The bill also indexes the fees to
inflation, to help them keep up with a growing economy over
time.
Additionally, the bill contains a reporting requirement, so
Congress will have information on how the bill has affected
agency budgets and its overall efficacy in strengthening
sound and effective enforcement of our antitrust laws.
Title II: Disclosure of Subsidies by Foreign Adversaries:
This will require merger notification filings to include
information about any subsidies the merging parties have
received from countries or entities that are ``strategic or
economic threats to the United States.''
Title III: Venue for State Antitrust Enforcement: This bill
would give state attorneys general the same ability that
federal antitrust enforcers have to stay in the court of
their choosing when bringing a federal antitrust suit rather
than have a defendant seek to move a case to a more favorable
venue.
While we believe much more must be done this year, this
bipartisan, bicameral legislation represents a critical first
step for Congress to reverse the course of lax antitrust
enforcement that has proved to be destructive to small
businesses, workers, communities, and innovation. While we
continue to support the broader antitrust reforms put forward
in the House and Senate, we recognize that antitrust
enforcers should urgently have the resources they need, and
it is imperative that the legislative package included in
H.R. 3843 move forward in the House.
This carefully crafted bill is bipartisan and not
controversial. Enacting it now will give a much-needed
funding boost to antitrust enforcement and the open, vibrant
marketplace it promotes and protects, benefitting us all:
consumers, workers, entrepreneurs, and communities. We ask
you to vote yes on H.R. 3843, the Merger Filing Fee
Modernization Act of 2022.
Sincerely,
Public Knowledge, Consumer Reports, Accountable Tech,
American Economic Liberties Project, American Family Voices,
Artist Rights Alliance, Asian Pacific American Labor
Alliance, AFL-CIO, Athena, Campaign for Family Farms and the
Environment, Center for Democracy & Technology, Center for
Digital Democracy, Center for Economic and Policy Research,
Common Sense Media, Consumer Action, Demand Progress, Demos,
Economic Security Project Action, Electronic Privacy
Information Center (EPIC), Farm Action Fund.
Fight for the Future, Free Press Action, Future of Music
Coalition, Institute for Local Self-Reliance, International
Brotherhood of Teamsters, New York Communities for Change,
Open Markets Institute, Our Revolution, P Street/Progressive
Change Campaign Committee, People's Parity Project, Public
Citizen, Revolving Door Project, Service Employees
International Union, The Democratic Coalition, The Tech
Oversight Project, Ultra Violet Action, Writers Guild of
America West (WGAW).
____
NATIONAL GROCERS ASSOCIATION,
September 27, 2022.
Dear Representative: On behalf of the National Grocers
Association (NGA), I am writing to urge you to VOTE YES on
H.R 3843, the Merger Filing Fee Modernization Act of 2022. We
believe this bipartisan legislation will deliver important
results for consumers, workers, and independent grocers who
rely on the benefits that flow from free and fair
competition.
Vigorous enforcement of the antitrust laws is a necessary
component of American free enterprise. H.R. 3843 gives the
federal enforcers and State Attorneys General critical tools
and resources needed to address abuses of market power in the
grocery industry that intensifies food price inflation and
reduces consumer access to critical products.
Today, dominant retail companies and e-commerce giants
wield unprecedented economic power with little to no
antitrust oversight or enforcement. These companies exercise
their power over the marketplace to dictate discriminatory
terms and conditions to suppliers, including by demanding
more favorable pricing and price terms, more favorable
supply, and access to exclusive products. This economic
discrimination has only worsened in the current environment
of supply chain disruption and increasing inflation.
Independent community grocers play a crucial role in
ensuring food access, especially in smaller, rural
communities as well as high density urban ones where
independents tend to locate. Unfortunately, these communities
have suffered the most recently as independent grocers face
declining supply delivery rates and share a disproportionate
burden of wholesale food price increases.
Antitrust enforcers at the State and Federal level play a
critical role in restoring the free play of competitive
markets, but they must have the resources and tools at their
disposal to address abuses of market power that harms
consumers. This bipartisan bill does not change the antitrust
laws, it takes the simple step of helping enforcers have a
better shot of deterring abusive marketplace conduct that
American consumers cannot afford right now. For these
reasons, we urge you to vote YES on H.R 3843.
Sincerely,
Chris Jones,
Senior Vice President of Government Relations & Counsel,
National Grocers Association.
American Antitrust Institute,
September 27, 2022.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Hon. Kevin McCarthy,
Minority Leader, House of Representatives,
Washington, DC.
Dear Speaker Pelosi and Minority Leader McCarthy: The
American Antitrust Institute (AAI) writes to support a
proposal under H.R. 3843, the Merger Filing Fee Modernization
Act of 2022, that is integral to increasing the transparency
and public analysis of
[[Page H8257]]
merger enforcement in the United States. Transparency and
public analysis are critical in promoting stronger
enforcement of Section 7 of the Clayton Act, at a time of
mounting concerns over declining competition, increasing
concentration, and cadence of the harmful effects of past
mergers on consumers, workers, and innovators.
AAI supports the proposal under H.R. 3843 to delineate new
categories of merger filing fees for billion-dollar mergers
that are outlined in Title 1, Section 101(1)(D)(4-6),
``Modification of Premerger Notification Filing Fees.'' Under
the proposal, merger filing fees would account for major
categories of mergers worth $1 billion and up. These include
fees for mergers valued between (1) $1B-$2B ($400K filing
fee); (2) $2B-$5B ($800K filing fee); and (3) more than $5B
($2.25M filing fee).
AAI recently released the white paper, What Does the
Billion-Dollar Deal Mean for Stronger Merger Enforcement? The
findings in the AAT paper strongly support the Title 1,
Section 101(1)(D)(4-6) proposal for more specificity in
filing fees for billion-dollar mergers and additional agency
resources. Additional resources are needed to enable the U.S.
Department of Justice Antitrust Division and the Federal
Trade Commission to review and investigate billion-dollar
deals.
The AAI white paper unpacks the advent of the billion-
dollar merger in the 1990s and the growth of billion-dollar
transactions over time. Supported by empirical analysis of
enforcement data, the paper analyzes the outsized impact of
billion-dollar deals on enforcement and associated
implications for the allocation of scarce agency resources.
This resource allocation issue extends to early-stage
inquiries (i.e., second requests) and late-stage inquiries
(i.e., investigations). Importantly, it also extends to how
the agencies resolve challenged, illegal mergers though
settlement, versus forced abandonments, restructurings, and
injunctions.
The AAI white paper contains a number of important
recommendations. One is that the antitrust agencies be
required to report data for multiple categories of mergers
above $1 billion in their annual reports to Congress under
the Hart Scott Rodino Act. A second recommendation is the
need for more resources to enable the agencies to review
billion-dollar deals. A third recommendation is that the
agencies undertake a review of resource allocation for both
early-stage and late-stage inqurnes involving billion-dollar
deals. A fourth recommendation is that the agencies review
their own successes and failures in past settlements of
challenged, billion-dollar mergers.
In sum, the recommendations set forth in What Does the
Billion-Dollar Deal Mean for Stronger Merger Enforcement? are
necessary to enable competition research, education, and
advocacy organizations like AAI, to analyze merger
enforcement data and to render policy recommendanons that are
responsive to changing trends that directly impact the vigor
of merger enforcement.
We appreciate your attention to AAI's comments in regard to
H.R. 3843.
Sincerely,
Diana Moss, Ph.D.,
President, American Antitrust Institute.
{time} 1245
Mr. JORDAN. Mr. Speaker, I yield 3 minutes to the gentleman from
California (Mr. McClintock), a distinguished member of the Judiciary
Committee.
Mr. McCLINTOCK. Mr. Speaker, this bill imposes $1.4 billion in new
fees on large companies seeking mergers and makes it easier to block
those mergers.
Now, mergers only occur when they promote efficiency and
productivity. They only occur when they enhance a company's ability to
provide better goods and services at lower prices. Interfering in this
process harms the prosperity of every American.
Let's start with the simple fact that taxes and fees on businesses
aren't paid by businesses. They are paid by consumers through higher
prices, employees through lower wages, and investors through lower
earnings.
How does increasing consumer prices protect consumers?
Where will these fees go?
Well, they are going to go to increasingly corrupt bureaucracies like
the FTC. That agency is now led by a radical leftist who has declared
her intention to use the powers of government to replace consumer
decisions with her own, all to advance her brand of ideological
zealotry.
The worst damage this does is to make the marketplace less efficient,
which makes prices higher, consumer choices less satisfying, and
ultimately diminishes our prosperity as a society.
Markets are inherently democratic because they fundamentally are
regulated by consumer choices. Consumers vote every day with every
dollar they spend what the market will provide and at what prices.
Consumer choices reward companies that best meet their needs and punish
the companies that don't.
Now, the left seeks to substitute its judgment for yours. It seeks to
tell you what choices you may make to advance their political goals.
For example, personally I don't care for Jeff Bezos' political views,
but he has built a successful, gigantic company by satisfying his
consumers.
Americans have voted with their dollars every day that the services
that Amazon provides are better than the many other alternatives they
have to choose from. The moment they decide otherwise, Amazon will
shrink and competitors will emerge and grow to fill those gaps.
Substituting government's judgment for yours, as this bill does,
ultimately undermines your right to decide for yourself who is best at
providing for your own needs.
Mr. Speaker, we need to reject not only this bill, but the poisonous,
authoritarian, and destructive ideology behind it.
Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, it is interesting to see that Mr. McClintock's argument
is against all antitrust laws. Consumers make choices, so what do you
need antitrust laws for is essentially what he is saying.
Companies buy other companies not just for good reasons. They buy
other companies to reduce the competition, and thereby enable them to
charge higher monopolistic prices. That is why we have antitrust laws.
Mr. Speaker, I yield 2 minutes to the distinguished gentlewoman from
Texas (Ms. Jackson Lee), a member of the Judiciary Committee.
Ms. JACKSON LEE. Mr. Speaker, I thank the chairman and sponsors of
the bill for their hard work. Let me say, the reason is obvious why I
rise in support of H.R. 3843, the Merger Filing Fee Modernization Act
of 2022.
Does anybody know the word ``consumers''? Do I need to spell it out
on the floor of the House?
Ultimately, mergers, in many instances, have a detrimental impact on
consumers, either by way of cost or loss of services. Read the history
books.
Does anybody know that in years past there were opportunities for
many, many flights across America? The aviation industry has been
changed by mergers. That is a prime example.
This particular legislation updates the filing fees that merging
parties may pay to the Federal antitrust enforcers. It requires merging
parties to disclose any subsidies from countries or entities that are
strategic or economic threats to the United States.
The people of the United States are consumers, Mr. and Mrs. Jones
walking and working every day to make ends meet.
As Democrats have done in the Inflation Reduction Act and the
reduction in healthcare costs and insulin costs, we are bringing down
fees. But there is something about justice that is involved in this, as
well.
We strongly support this. And the National Association of Attorneys
General and every single State attorney general wrote a letter urging
Congress to pass the bill's amendments to the multidistrict litigation
statute ``as soon as possible so that our citizens benefit from more
efficient, effective, and timely adjudication of antitrust actions.''
Merging fees are to provide the extra resources that are needed, and
the administration feels that to vigorously enforce the antitrust laws,
the DOJ and the Federal Trade Commission need the resources to do their
job.
And, again, who do we represent but the people of the United States?
Who are they? Consumers.
What happens when mergers come?
Lack of services, lack of opportunity, lack of a more fiscally
responsible commercial scheme, if you will, so that they can get
resources, goods, and services without having enormous expense.
Mr. Speaker, I ask my colleagues to support H.R. 3843 because this
helps consumers, and it brings justice to this system. This is a bill
that is long overdue, and I thank those who sponsored it.
Mr. JORDAN. Mr. Speaker, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Perry), my friend.
Mr. PERRY. Mr. Speaker, I would just ask my colleagues, how many more
times do we need to see it, the abuse of power by the Department of
Justice?
[[Page H8258]]
I am sure, just like I do, you travel your district, you talk to
people. Some agree with you; some don't agree with you. You know what
not one person has said to me? Agree or disagree, not one person has
said to me: You know what we need, Perry, we need more money for the
Department of Justice. Not one. I don't know why that is, but maybe it
is because of the abuse of power.
I appreciate my colleagues that want to do something with Big Tech. I
sure want to do something, too.
In about 3 months, the folks who are destroying this country are not
going to be in charge around here, and then we can do something
meaningful. We don't have to take the bad to get a couple good things.
We can just do the good things and leave the bad things out in 3 more
months.
We do a lot of things in good faith around here, Mr. Speaker. We do a
lot of things in good faith. I am tired of having those things abused.
People will say: Well, what are you talking about, Perry?
I will give you an example. President Biden used the HEROES Act--the
HEROES Act made after 9/11 to support people that were called to duty
to go and get their education, but they were called to duty. He used
that to forgive the loans of all these people that incurred student
debt. It is an abuse.
First of all, it is not forgiveness. It is Marxism, right?
Because you are not forgiven, you are paying for it. It is not
forgiveness.
How many more times do we need to see it? In good faith. In good
faith.
In 3 months, Mr. Speaker, under new management here, we can get a
great bill instead of some mediocre thing where we have got to accept
something terrible, $280 million a year, $1\1/2\ billion more for the
abuse of power.
Two dozen agents raid a guy's home, a pastor, 7:00 in the morning in
Bucks County.
Oh, yeah, DOJ needs more money for that, right?
You know what they could have done?
They could have saved a lot of money. They could have picked up the
phone, called the magistrate. The magistrate could have called the
pastor and said, You know what, the Federal Government is going to
charge you. Show up down here at the office, we need to charge you. And
I bet he would have shown up. The guy is not a criminal.
More money for that? No way, Mr. President.
I urge a ``no'' vote.
Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished
gentleman from New York (Mr. Jones), a member of the Judiciary
Committee.
Mr. JONES. Mr. Speaker, I thank the chairman for his leadership.
This bill really should be uncontroversial. But, unfortunately, our
Nation's largest tech companies don't want any changes to the status
quo. They are content with little to no antitrust enforcement. They are
content with their own Gilded Age.
I regret, deeply regret, that some of my colleagues have agreed to do
their bidding. It is consumers and small business owners who are paying
the price in an economy that increasingly only works for large
corporations and for the ultra-wealthy.
Our antitrust enforcement system is beyond outdated. The last time
Congress updated the merger filing fees was in 2001, long before
companies like Amazon, Facebook, and Apple began their anticompetitive
and monopolistic frenzy of acquisitions.
This bill updates those filing fees and ensures that our antitrust
agencies have the resources they need to effectively combat the growing
concentration and monopolization of our economy in the hands of the
largest corporations.
I urge my colleagues to stand up to Big Tech and our largest
corporations and to vote for this bill.
Mr. JORDAN. Mr. Speaker, I yield 2 minutes to the gentleman from
Colorado (Mr. Buck), a member of the Judiciary Committee.
Mr. BUCK. Mr. Speaker, I want to use my time to quote other
conservative voices.
The Heritage Foundation just issued a report:
This package equips the American people's Representatives with
targeted, commonsense tools to constrain Big Tech companies' abuse of
power. These bills represent an important step towards restoring self-
governance, shoring up our national security, and enforcing current
antitrust laws to promote competitiveness without expanding or unduly
empowering the Federal bureaucracy.
Senators Lee, Grassley, and Cotton issued a statement on September
26: `` . . . these bills improve antitrust enforcement without
appropriating any more funds to President Biden's out-of-control FTC.
We call on all of our colleagues in the House of Representatives to
strongly support this package.''
The American Mind on September 28 issued a story, ``While GOP views
on antitrust have evolved, one thing has remained constant: `antitrust
enforcement is law enforcement.' You can't provide `legal amnesty' to
Big Tech companies that flout antitrust laws. Defunding the antitrust
police will have the same result as defunding the municipal police:
enabling bad actors to harm the public.''
Finally, The American Conservative on September 29, I guess today,
issued this story, ``While Buck is pushing restrained, politically
viable legislation that would strengthen the average American's
position in the cultural battle against Silicon Valley, some of his
colleagues seem to be sticking to an overcooked theory derived from a
notion of corporate personhood.''
Mr. Speaker, I include in the Record the following articles:
``Heritage Tech Policy Experts Applaud House Antitrust Package'';
``Republican Senators Urge House Republicans to Support Antitrust
Reform Package'';
The American Conservative: ``Tech Hawks Meet Resistance to a `Modest
Proposal''';
The American Mind: ``Don't Defund the (Antitrust) Police''.
[From the Heritage Foundation, Sept. 29, 2022]
Heritage Tech Policy Experts Applaud House Antitrust Package
Washington.--This week, the House of Representatives is
expected to vote on a package of three antitrust bills that
would begin the important work of reining in Big Tech: the
State Antitrust Enforcement Venue Act, Merger Filing Fee
Modernization Act, and Foreign Merger Subsidy Disclosure Act.
Experts from Heritage's Tech Policy Center--Kara Frederick,
director of the center; Will Thibeau, policy analyst; and
Jake Denton, research associate--released the following
statement ahead of the scheduled vote:
Heritage Tech Policy Experts Applaud House Antitrust
Package I The Heritage Foundation
``Big Tech companies should not have outsized authority to
shape and control society. However, we have all watched these
companies take an increasingly troubling share of control
over our politics and culture in recent years. Conservatives
should champion targeted, commonsense policies that constrain
Big Tech companies' abuse of power. This package equips the
American people's representatives with tools to do so. These
bills represent an important step toward restoring self-
governance, shoring up our national security, and enforcing
current antitrust laws to promote competitiveness--without
expanding or unduly empowering the federal bureaucracy.
``From providing state attorneys general with a more level
playing field in critical litigation against Big Tech to
exposing Big Tech's cozy relationship with U.S. adversaries
like the Chinese Communist Party, this package is a requisite
starting point to rebalance the relationship between American
citizens and the Big Tech companies that abuse them.''
____
September 26, 2022
Republican Senators Urge House Republicans to Support Antitrust Reform
Package
Washington, D.C.--Sen. Mike Lee (R-UT), joined by Sens. Tom
Cotton (R-AR), and Chuck Grassley (R-IA), urged their
colleagues in the House to support passage of an antitrust
reform package consisting of the State Antitrust Enforcement
Venue Act, the Merger Filing Fee Modernization Act, and the
Foreign Merger Subsidy Disclosure Act. The bills would
protect antitrust enforcement by state attorneys general,
modernize the Hart-Scott-Rodino merger filing fees, and
require merging parties to disclose subsidies from certain
foreign governments, respectively.
The Senators issued the following joint statement:
This package represents a strong, bipartisan consensus
approach to strengthening enforcement of the federal
antitrust laws, against both Big Tech and other bad actors.
Importantly, these bills improve antitrust enforcement
without appropriating any more funds to President Biden's
out-of-control FTC. We call on all of our colleagues in the
House of Representatives to strongly support this package.
[[Page H8259]]
____
[From theamericanconservative.com]
Tech Hawks Meet-Resistance to a ``Modest Proposal''--The American
Conservative
(By Harry Scherer)
Intramural fights are causing a dustup in the House
Judiciary Committee this week as Colorado Republican Ken Buck
looks to push a legislative package that seeks to empower
state attorneys general with the authority to try antitrust
cases on their home turf, rein in monopolistic tech mergers
among large companies, and check China's financial
interference in domestic mergers. The bipartisan Merger
Filing Fee Authorization Act, which has reconciled the
priorities of GOP tech hawks and the aggressive antitrust
commissioners on the FTC, is being criticized by Ohio
Republican Jim Jordan, ranking member of the Judiciary
Committee.
On Tuesday morning, Jordan tweeted: ``Do you think we
should give the Biden DOJ and FTC more money? Do you trust
they won't use the money to target conservatives? Do you
think Joe Biden, Merrick Garland, and Lina Khan have your
best interests at heart? No, No, No.''
Buck, ranking member of the Antitrust, Commercial and
Administrative Law Subcommittee, is not swayed by those
critiques. In fact, the bills that he brought to the House on
Wednesday night seem to have been drafted to encourage state
governments to curb Big Tech mergers that allow the merged
entities to more comfortably ``target conservatives.''
Mike Davis, president of the Article III Project, told
Steve Bannon on Tuesday: ``This is a modest proposal. This is
time for Republicans who pretend they want to hold Big Tech
accountable. This is time for them to put up or shut up.''
Jordan might be one of those Republicans Davis was talking
about. When the Facebook Oversight Board upheld the company's
decision to ban President Trump from Facebook and Instagram
in May of last year, Jordan tweeted, ``Break them up.''
So which one will it be? Catchy, far-reaching political
slogans or common-sense policy? Jordan's position is
difficult to follow. One of the bills in the package, Buck's
State Antitrust Enforcement Venue Act, passed the Judiciary
Committee in June of last year by a vote of 34-7 with a `yea'
vote from Jordan. The second, Colorado Democrat Joe Neguse's
Merger Filing Fee Modernization Act, passed the same
committee by a vote of 29-12 with a `no' vote from Jordan.
The third, the Foreign Merger Subsidy Disclosure Act, has yet
to get a committee vote.
That second bill, though, is what distinguishes those who
really care about discouraging anticompetitive behavior.
Right now, the FTC imposes fees when corporate entities file
for a merger, the values of which are determined by the total
amount of voting securities, assets, or non-corporate
interests being acquired through the merger. Neguse's bill
actually proposes to decrease filing fees for mergers under
$1 billion valuations, but increase fees for mergers in
excess of $1 billion. The bill also directs the FTC to
increase filing fees each year according to the percentage
change in the Consumer Price Index, a metric that measures
the prices paid by U.S. consumers for goods and services.
One group of GOP senators expressed support for those in
favor of the package. Utah's Mike Lee, Arizona's Tom Cotton,
and Iowa's Chuck Grassley urged their colleagues in the House
to pass the package, saying, ``This package represents a
strong, bipartisan consensus approach to strengthening
enforcement of the federal antitrust laws, against both Big
Tech and other bad actors. Importantly, these bills improve
antitrust enforcement without appropriating any more funds to
President Biden's out-of-control FTC.''
While Buck is pushing restrained, politically viable
legislation that would strengthen the average American's
position in the cultural battle against Silicon Valley, some
of his colleagues seem to be sticking to an overcooked theory
derived from a notion of corporate personhood. History will
be on Buck's side.
____
[From americanmind.org]
Don't Defund the (Antitrust) Police
(By Mike Wacker)
As the House gets ready to vote on a bipartisan package of
antitrust bills that would target Big Tech, Congressman Jim
Jordan--who would set the antitrust agenda if the GOP wins
the House this November-slammed his foot on the brakes. ``Do
you think,'' he asked, ``we should give the Biden DOJ and FTC
more money?'' This package, in fact, does not give them more
money, but given Jordan's emphasis, and his fiscally
conservative bent, one has to wonder if he plans to defund
the (antitrust) police.
Jordan has been an ardent critic of Federal Trade
Commission Chair Lina Khan, describing her as a woke, far-
left radical. These criticisms are fair and are shared by
other Republicans. During a Senate oversight hearing, Senator
Grassley-who previously voted to confirm Khan-decried the
agency's ``low morale, management and partisanship problems''
and its ``push for radical antitrust policies.''
Tweeting about how Lina Khan is evil, however, is not the
same as setting a robust antitrust agenda. And while
Republican senators Lee, Cotton, and Grassley have been
critical of Khan, they have also thrown their support behind
the antitrust package; if it passes the House, it can easily
pass the Senate and become law.
While GOP views on antitrust have evolved, one thing has
remained constant: ``antitrust enforcement is law
enforcement.'' You can't provide ``legal amnesty'' to Big
Tech companies that flout antitrust laws. Defunding the
antitrust police will have the same result as defunding the
municipal police: enabling bad actors to harm the public.
Nonetheless, given the increased politicization of the FTC-
and the broader politicization of federal law enforcement--
you shouldn't give antitrust enforcers a blank check. While
an earlier version of this package did assign $418 million to
the FTC, the latest version removed that appropriation in
order to win over GOP support. As Lee, Cotton, and Grassley
noted, ``Importantly, these bills improve antitrust
enforcement without appropriating any more funds to President
Biden's out-of-control FTC.''
In an ideal world, you would find ways to both increase
funding to law enforcement while also establishing guardrails
on that funding. While the FBI, for example, needs more
resources to investigate child sexual abuse, they also need
safeguards that prevent the agency from redirecting that
funding to pursue political investigations--an issue which is
not a hypothetical problem. But whether it's the FBI or FTC,
those guardrails can't be built overnight, so what can be
done now to improve antitrust enforcement?
Big Tech, not taxpayers or small and mid-sized businesses,
must foot more of the bill for antitrust enforcement. Title I
of the antitrust package adjusts the fees for mergers,
charging more for transactions over one billion dollars,
while also charging less for mergers under that threshold.
Moreover, these fee hikes would not give more money to the
FTC and DOJ; instead, they would offset taxpayer funding of
these agencies. The nonpartisan Congressional Budget Office
estimates that these ``discretionary offsetting collections''
would reduce federal spending by $1.4 billion dollars.
The FTC and DOJ must be diverted from fake problems to real
problems. Title II of the antitrust package does exactly
that. Especially given the willingness of Big Tech to
capitulate to China, both the FTC and DOJ need to focus on
foreign influence from, for instance, the Chinese Communist
Party when it comes to ruling on mergers. Here, Title II
would amend the premerger notification process, requiring
companies to disclose if they received ``a subsidy from a
foreign entity of concern.''
Finally, if you don't want to empower the FTC and DOJ, then
empower the states instead. When the federal government files
an antitrust lawsuit, it picks a venue for that lawsuit.
However, state governments--which already have to pool
resources to fund antitrust lawsuits against Big Tech--don't
have this same privilege. Before they can even debate the
merits of their lawsuit, Big Tech will make them debate where
they, should have a debate, burning time and money. Title III
would let states choose their own venue.
Voters are angry at Big Tech, but they are also asking
legislators, ``What are you going to do about it?'' Jim
Jordan and Tucker Carlson may share the same talking points
on Big Tech, but as Tucker himself once pointed out when
Jordan was on his show, his job as a talk show host is to
talk; Jordan's job as a legislator is to legislate.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentlewoman from Illinois (Ms. Schakowsky).
Ms. SCHAKOWSKY. Mr. Chairman, Americans are tired of monopolies that
saddle them with less choices and higher prices.
The Federal Trade Commission and the Department of Justice must have
the resources that they need to aggressively combat anticompetitive
mergers.
This commonsense, bipartisan legislation that we are considering
today is absolutely needed right now in order to protect consumers. It
makes giant companies pay their fair share, improves transparency, and
streamlines litigation.
This should not be--and it isn't--a partisan piece of legislation. At
a hearing I was chairing as the chair of the Subcommittee on Consumer
Protection and Commerce, we had testimony last year from a Bush-
appointed member of the Federal Trade Commission, Bill Kovacic, who
called for a tripling in the FTC budget. He recognized that this agency
should play a leading role in enforcing our laws that protect
consumers, workers, and innovation.
I urge all my colleagues to vote in favor of this legislation.
Mr. Speaker, I include in the Record a very compelling statement made
by both Senator Klobuchar and Senator Durbin in favor of the
legislation.
(By Amy Klobuchar, U.S. Senator from Minnesota, Sept. 29, 2022)
Klobuchar, Durbin Issue Statement Urging House to Pass Bipartisan
Legislation to Strengthen Antitrust Enforcement
Washington.--U.S. Senators Amy Klobuchar (D-MN), Chairwoman
of the Senate Judiciary Subcommittee on Competition
[[Page H8260]]
Policy, Antitrust, and Consumer Rights, and Dick Durbin (D-
IL), Chair of the Senate Judiciary Committee, released the
statement below urging the House of Representatives to pass--
H.R. 3843, the Merger Filing Fee Modernization Act.
``The Merger Filing Fee Modernization Act is the product of
years of bipartisan work in both the House and Senate to
improve the enforcement of our antitrust laws and protect
competition and consumers. This package of bills will update
merger filing fees and help ensure that the federal antitrust
agencies can be properly funded, that information on foreign
subsidies is made available to federal enforcers, and that
state antitrust enforcement can proceed more efficiently and
without needless delays. We call on all House Members to
support this important bipartisan legislation.''
The Merger Filing Fee Modernization Act includes the House
companion to Klobuchar's merger filing fees reform bill with
Senator Chuck Grassley (R-IA) and Senator Durbin to help
ensure antitrust enforcers have sufficient resources to
protect consumers by updating merger filing fees and lowering
the burden on small and medium-sized businesses. It also
includes the State Antitrust Enforcement Venue Act,
Klobuchar's legislation with Senator Mike Lee (R-UT) to
empower state antitrust enforcement by allowing state
attorneys general litigating antitrust cases to remain in
their selected courts. H.R. 3843 has been endorsed by a
coalition of State Attorney Generals:
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. NADLER. Mr. Speaker, I yield the gentlewoman an additional 30
seconds.
Ms. SCHAKOWSKY. Mr. Speaker, I also include in the Record Mr.
Kovacic's testimony.
House of Representatives,
Committee on Energy and Commerce,
Hearing Before the Subcommittee on Consumer Protection and Commerce
Safeguarding American Consumers: Fighting Frauds and Scams During the
Pandemic
Testimony of William E. Kovacic, February 4, 2021
Federal Trade Commission Budget and Compensation Levels for Employees
There is a grave mismatch between the duties Congress has
assigned the FTC and the resources it has given the agency to
carry out its mandate. There is a serious need to raise the
FTC's budget, but not simply to build a larger staff by
hiring more people. Reforms to the federal compensation
system are necessary to attract and retain a larger number of
elite personnel. I do not see how the FTC or many other
public agencies can recruit and retain necessary personnel
without a significant increase in the salaries paid to
managers and staff.
Consider two possibilities for compensation reform. The
first is to align FTC salaries with the highest scale paid to
the various US financial service regulators. One model would
be the compensation scale used to pay employees of the
banking regulatory agencies; the salary scale for these
bodies exceeds the General Schedule (GS) federal civil
service wage scale by roughly twenty percent. In adopting the
Dodd-Frank Wall Street Reform and Consumer Protection Act in
2010, Congress concluded that the importance of the mission
of the new Consumer Financial Protection Bureau (CFPB)
warranted higher salaries for the agency's personnel. If the
higher salary scale made sense for the CFPB, I see no good
reason why a more generous compensation schedule is not
appropriate for what is the nation's leading consumer
protection agency (and its leading federal data protection
authority.
A second, more ambitious alternative would be to triple the
FTC's existing budget of about $330 million per year and use
the increase mainly to raise salaries and partly to add more
employees. This experiment might be carried out for a decade
to test whether a major hike in pay would increase the
agency's ability to recruit the best talent, retain the
talent for a significant time, and apply that talent with
greater success in a program that involves prosecuting
numerous ambitious cases and devising other significant
policy initiatives.
A major increase in compensation, either by adopting the
CFPB model or trying our my more ambitious proposal, is a
crucial test of our national commitment to improve the
foundations for effective consumer protection enforcement.
The nation should spend what it takes to get the best
possible personnel to run the difficult cases (and carry out
other measures, such as the promulgation of trade regulation
rules) that will be the pillars of a new, expanded
enforcement program. Such steps will become even more
important if new political leadership seeks to close the
revolving door, which has operated as a mechanism to
encourage attorneys and economists to accept lower salaries
in federal service in the expectation of receiving much
higher compensation in the private sector at a later time.
{time} 1300
Mr. JORDAN. Mr. Speaker, I yield myself such time as I may consume to
respond to comments made by my friend from Colorado. He used the term
``overcooked theory.'' Let me tell you what is not theory.
The Department of Justice's raid on a former President's home. Not
theory.
The Department of Justice taking the phone of a sitting Member of
this body. Not theory.
Fourteen whistleblowers coming to our office talking about the
political nature of the Justice Department. Not theory.
Those are facts. That is scary stuff.
Now this bill, if passed, will give that agency $140 million each
year for the next 5 years.
That is what we want to do? For that reason alone, we should be
against this legislation.
Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr.
Issa), my good friend, a member of the Committee on the Judiciary.
Mr. ISSA. Mr. Speaker, I thank the gentleman for yielding me time.
Mr. Speaker, 5 minutes is not enough to go through each and every
item that is wrong with this bill, so I am going to try to summarize,
and some of it may be redundant.
The authors of this bill are the authors of at least three bills.
They are the authors of very different bills, and, ultimately, we
should be having a vote on three or more bills, as we did in committee.
You might ask, well, why aren't we? Usually, I don't want to talk
about procedure, but there is a reason. They are trying to cram this
thing and get a few more votes by putting a bill that is not
objectionable with bills that are very objectionable.
A bill that doesn't grab more power with one that empowers two
agencies that are under review for good cause. One of them has been
trying to seize this very power. As we speak, the Federal Trade
Commission has done virtually nothing to protect consumers in the areas
it has jurisdiction on. They constantly say we don't have enough money
for the job we already have. But they want to be able to control both
before, during, and after mergers and acquisitions. They actually want
to be able to and are trying to undo mergers that already have
occurred.
So yes, there is an agency that is power hungry. Predominantly, my
friends on the other side of the aisle want to give them money. Maybe
not money in this bill because we are not appropriators, but it is
still $140 million, and it will keep coming, and it will grow that
agency.
I am going to ask the American people something here today, Mr.
Speaker.
Have you received a call about your extended warranty?
Have you received a robocall from somebody you don't know, and it
gets through on your personal phone or your cell phone?
Of course, you have. So has every American.
The Federal Trade Commission has an absolute obligation to seek that
out and to prosecute that. And they are funded to do it, and they
haven't done it. But, no, they want to get into mergers.
And my colleagues on the other side of the aisle, and some on my side
of the aisle, hate a couple of Big Tech companies for their leftist
leanings or whatever, on my side. And on the other side, I guess,
because they are profitable. They hate them so much that they look past
two truths.
One of them is--big tech, medium tech, small tech--they have made us
the envy of the world, and we have delivered to the rest of the world a
better set of economies when they adopt those very technologies.
And you ask, why do those technologies get adopted? Well, one of the
reasons is a startup can be funded because they know they may have an
exit that isn't even a normal one. It is going to be an exit by having
one of these big companies buy them. Many companies' actual plan is to
build something that is going to be bought by some large tech. And yet,
we are considering changing the basis for mergers and acquisitions so
that might no longer be possible.
Innovation could dry up. I was an innovator; I know what it is like
as a small startup company to try to get those funds. And you know
what, those funds come if they believe not that you might make a living
and be around, but that your company might become valuable, that your
idea might explode into the marketplace.
[[Page H8261]]
The American people see through this. Big tech, medium tech, and
small tech. By the way, most of the Big Tech companies, none of them
were around 50 years ago, and most of them weren't around 25 years ago.
The fact is this is new tech that they are attacking. These are new
technologies, and they are playing into the very hands of the people
they claim to defend.
If you want to stifle innovation, vote for this. And by the way,
going back to that first one, Mr. Speaker, why are we voting on three
bills? The reason is they are trying to trick Members of Congress into
voting. Please, vote ``no.'' Vote ``no'' because this is a bad set of
multiple bills, and I intend on making sure it never gets through the
Senate.
Mr. NADLER. Mr. Speaker, I agree with Mr. Issa. We should never have
passed the Sherman Act to deal with those newfangled railroads.
Mr. Speaker, I yield 3 minutes to the gentleman from Colorado (Mr.
Buck).
Mr. BUCK. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I have heard the arguments against this Big Tech bill by
my Republican colleagues.
My Republican friends ask why would we give President Biden a win
within 41 days before an election?
Let me be clear. This is not a Democrat bill, and this is not a
Republican bill.
Mr. Speaker, holding Big Tech accountable is an American bill. It is
American legislation. We are United States Congressmen. We are serving
in the United States Congress. We serve United States citizens. It is
never the wrong time to do the right thing.
My friends say this Big Tech bill doesn't prevent discrimination and
censorship. Competition is the solution for viewpoint censorship. MSNBC
may not support my views, but Newsmax and FOX will listen to me.
The New York Times and The Washington Post may disagree with me, but
The Wall Street Journal and The Washington Times will hear me out.
Google controls 94 percent of online searches, and when it changes
its algorithm to discriminate against one side, there is no
alternative. The same goes for Facebook, Amazon, and Apple.
The real threat is that when a monopoly controls information in a
democracy, it controls the results of elections. That is the threat
that Big Tech poses to America. I am afraid that America may not be
able to withstand that threat.
Finally, my friends ask, Why give money to the Biden FTC and DOJ?
America is about to give Republicans control of the oversight and
appropriations process. Americans expect us to use those levers of
power responsibly and effectively. It is not too much to ask for
Congress to walk and chew gum at the same time? We can create
competition for Big Tech and level the playing field and at the same
time make sure our government treats everyone in this country fairly.
Mr. Speaker, I urge my colleagues to vote for this bill.
Mr. JORDAN. Mr. Speaker, I yield 3 minutes to the gentleman from
Oregon (Mr. Bentz), a distinguished member of the Committee on the
Judiciary.
Mr. BENTZ. Mr. Speaker, I include in the Record an article titled,
``Lina Khan's Unfair and Deceptive Approach to Antitrust.''
[From U.S. Chamber of Commerce, Sept. 20, 2022]
Lina Khan's Unfair and Deceptive Approach to Antitrust
(By Sean Heather)
In a recent speech at Fordham University, Federal Trade
Commissioner (FTC) Chair Lina Khan outlined an aggressive new
approach to the agency's competition policy. Under her
leadership, she explained, the FTC will interpret ``unfair
methods of competition'' broadly, block mergers that could
reflect an ``incipient'' trend toward monopoly, reject
efficiency defenses, and contend that ``conglomerates'' harm
consumers, irrespective of economic evidence. In Khan's view,
her agenda is ``fundamentally conservative'' because it shows
``respect for the rule of law'' as reflected in congressional
intent.
Khan's speech hearkens back to George Orwell's Ministry of
Truth, where words apparently lose all meaning. Khan's agenda
rejects the rule of law in favor of a progressive policy
agenda that grants the government total discretion to
challenge any merger for any reason whatsoever, ignoring
basic economics, history, and decades of precedent from the
Supreme Court.
Most troubling is the fact that Khan's agenda would allow
the agency to challenge any private conduct that conflicts
with progressive notions of fairness. Section 5 of the FTC
Act directs the agency to combat ``unfair methods of
competition.'' Historically, the agency has tied this
authority to what's in the consumers' economic interest,
which hews closely to the other main antitrust statutes,
namely the Sherman Act and Clayton Act. As a result, the FTC
provided Section 5 with context, guardrails, and
predictability, which are all integral to the rule of law.
Under the FTC's new leadership, however, anything goes. The
FTC's new strategic plan condemns ``unwarranted health,
safety, and privacy risks'' and seeks ``equity for
historically underserved communities.'' These issues, while
important, lie far outside the FTC's statutory authority or
competence. Yet under Chair Khan's reading of Section 5, the
FTC can do whatever it pleases. Without guardrails, for
example, the FTC could condemn as ``unfair'' a merger that
would result in job losses even if that merger would lower
costs and lead to lower prices for consumers. Congress never
envisioned the FTC to serve as the morality police over the
market.
Cherry-picking History
In fact, the last time the FTC embarked on a path of
overreach of this scope was the 1970s. As a result, the
Washington Post editorial board labeled the agency the
``National Nanny'' and Congress nearly eliminated the agency
altogether. Similarly, Chair Khan's approach conveniently
sidesteps this period of tremendous overreach and willfully
ignores the succeeding decades of precedent and economic
learning. According to her, the amendments to Section 7 of
the Clayton Act show that Congress was concerned with any
trend toward mergers and that, therefore, the agencies and
courts erred in accounting for the possibility that a merger
might increase efficiency. Khan points to Supreme Court cases
from the 1960s to support her position and, in fairness, she
is correct that in an earlier time in our history mergers
were reflexively viewed more skeptically--but that was prior
to now decades of reliance on sound economic analysis that
accompanies merger review.
Chair Khan, however, seeks to divorce economic analysis
from antitrust law. In those intervening decades, economists
came to understand that relatively few mergers actually
threaten competition, whereas most mergers, particularly
vertical mergers, have pro-competitive benefits such as
improved capital flows and greater efficiency. Across
political administrations, the antitrust agencies tailored
their enforcement activities to target those mergers that
posed a genuine risk to competition. Consistent with economic
learning and experience, the Supreme Court interpreted the
antitrust laws more permissively to allow the private sector
more freedom to operate.
By returning to the worldview prevalent in the 1960s, Chair
Khan's FTC would seriously damage the economy's dynamism. By
blocking mergers that increase concentration only slightly,
the FTC would prevent startups from obtaining the capital and
technical expertise that they need to grow and thrive. By
replacing Section 5's guardrails with amorphous standards
subject to the shifting winds of politics, the FTC would
eliminate the certainty and predictability that businesses
need to plan and invest. And by barring use of the efficiency
defense, the FTC would force companies to incur more costs to
produce the same products--costs that would be passed along
to consumers.
Mr. BENTZ. Mr. Speaker, I support title II of this bill, and,
actually, I would vote for it if it was set up as a separate bill as it
once was.
I would not support title III.
The real issue is title I and the $1.4 billion that it would provide
to the Department of Justice and the FTC.
The assertion is that it would not or is not supported by the record.
Let me explain, however, what has not happened that should have in
order to make this $1.5 billion supportable. And what hasn't happened
is we have not had Chairwoman Lina Khan appear before us in our
Committee on the Judiciary. It seems odd that we wouldn't find out how
this money is going to be spent before we allocate it to the purposes
reflected in the Record.
Let me just read from a recent speech at Fordham University:
``Chair Lina Khan outlined an aggressive new approach to the agency's
competition policy. Under her leadership, she explained, the FTC will
interpret `unfair methods of competition' broadly, block mergers that
could reflect an `incipient' trend toward monopoly, reject efficiency
defenses, and contend that `conglomerates' harm consumers, irrespective
of economic evidence. In Khan's view, her agenda is `fundamentally
conservative' because it shows respect for the rule of law as reflected
in congressional intent.''
To quote the U.S. Chamber of Commerce: ``Khan's speech hearkens back
to George Orwell's `Ministry of Truth,' where words apparently lose all
meaning. Khan's agenda rejects the rule of law in favor of a
progressive policy agenda that grants the government total discretion
to challenge any merger for any reason whatsoever, ignoring
[[Page H8262]]
basic economics, history, and decades of precedent from the Supreme
Court. Most troubling is the fact that Khan's agenda would allow the
agency to challenge any private conduct that conflicts with progressive
notions of fairness. Section 5 of the FTC Act directs the agency to
combat `unfair methods of competition.' Historically, the agency has
tied this authority to what is in the consumers' economic interest,
which hews closely to the other main antitrust statutes, namely the
Sherman and Clayton Act. As a result, the FTC provided Section 5 with
context, guardrails, and predictability, which are all integral to the
rule of law.
Why didn't we have Chairwoman Khan appear before us and explain why
she wants to vary so dramatically from what has been the law for the
past 30 years.
``Under the FTC's new leadership, however, anything goes. The FTC's
new strategic plan condemns `unwarranted health, safety, and privacy
risks,' and seeks `equity for historically underserved communities.'
These issues, while important, lie far outside the FTC's statutory
authority or competence. Yet under Chair Khan's reading of Section 5,
the FTC can do whatever it pleases. Without guardrails, for example,
the FTC could condemn as `unfair' a merger that would result in job
losses even if that merger would lower costs and lead to lower prices
for consumers.''
Mr. Speaker, this is a bill whose time is not right. We don't know
how the money is going to be spent, and I urge a ``no'' vote.
Mr. NADLER. Mr. Speaker, we do know how the money is going to be
spent. It is going to be spent on antitrust enforcement.
Mr. Speaker, I yield 1 minute to the distinguished gentleman from
Arizona (Mr. Stanton), a member of the Committee on the Judiciary.
Mr. STANTON. Mr. Speaker, I thank the chairman for yielding me the
time.
Today, I rise in support of H.R. 3843, the Merger Filing Fee
Modernization Act of 2022.
This bipartisan legislation will strengthen antitrust enforcement and
better protect U.S. consumers, workers, and businesses. I support the
full slate of bills in this package, and I am pleased that it includes
legislation that I introduced with the gentleman from Wisconsin (Mr.
Fitzgerald).
Our bill, the Foreign Merger Subsidy Disclosure Act, will create a
more transparent picture for our antitrust enforcers by requiring
merging companies to disclose foreign government subsidies. We know
that China continues to use state-owned entities to acquire our
emerging technologies and intellectual property in an attempt to
surpass and suppress United States companies.
Our bill provides an important guardrail so that China and other
government-backed competitors can't discreetly buy up U.S. companies,
unduly influence our free market economy, steal intellectual property,
and stifle competition.
Our bill will ensure that these investments are not undermined. This
is good, commonsense policy. It is a step in the right direction.
Mr. Speaker, I intend to vote ``yes'' on this package, and I urge my
colleagues to do the same.
Mr. JORDAN. Mr. Speaker, I would just point out that I find it
interesting. First, we had Mr. Cicilline, the chair of the subcommittee
say that DOJ and FTC don't get the money. It has to be appropriated
next year. But then the chairman of the full committee, Mr. Nadler,
said we know how the money is going to be spent. It is going to be
spent on antitrust enforcement. It can't be both.
{time} 1315
So it can't be both. We know what is going to happen. This money is
going to wind up in DOJ and FTC, and we know their track record in how
they have been treating the American citizen.
But I find it interesting that the Democrats can't even get their
argument straight which just reinforces why this bill should not pass,
because in the end it is more money for the Department of Justice--the
same Department of Justice that has done their egregious actions over
the last several months.
Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr.
Gohmert) who is a former judge, a great member of the Judiciary
Committee, and a friend of mine.
Mr. GOHMERT. So, Mr. Speaker, we are hearing that we have got to give
DOJ and FTC all this authority to supervise and make sure that Big Tech
is properly investigated. But our committee has oversight over the
Department of Justice, and we have not done oversight as a committee to
stop what has been going on.
I understand Heritage Foundation and some of these others, they
haven't seen the whistleblower complaints that Jim Jordan and I have
been seeing. I have gotten double-digits now myself that were not
counted in the 14 that the committee got.
It sounds like Sodom and Gomorrah up there. We have gotten complaints
this week about sexual harassment and about sexual improprieties on the
top floor, the seventh floor--where the headquarters of the FBI is--and
all the favors and all the intimidation that goes along with sexual
improprieties.
Then you want the DOJ--the people who told the Big Tech that story
about Hunter's laptop, that is Russian disinformation, which they are
good at saying because they passed that on about Russian collusion, and
any time that President Trump or people in his administration said
anything, here came the DOJ whispering in people's ears: That is
Russian disinformation.
These are the last people whom we need to trust with reining in the
Big Tech because we have seen the techniques. I have got to give them
credit. Although there is apparently a tremendous amount of corruption
at the FBI and the DOJ that has not been reined in, I have to give them
credit. When it comes to intimidation and manipulation, they are right
there--and I don't say this lightly--they are right there with the
gestapo.
I have had FBI agents talk to me about, remember when we used to call
the attorney of people whom we knew were not violent?
Even though they committed very serious felonies, we would tell them
when to report, and they reported.
We didn't use the gestapo tactics of going in in the dark, beating
down doors, and dragging them out in their underwear to parade in front
of cameras that they inappropriately leaked information.
Mr. Speaker, this is a different DOJ. They don't need more money.
They need less, until they are made to and until they are helped to
eliminate their corruption and they start cleaning up their own act
which Christopher Wray and, unfortunately, Merrick Garland have not
done.
Mr. NADLER. Mr. Speaker, when I listen to Mr. Gohmert and Mr. Jordan,
I am really amazed that every single Republican Senator voted for this
legislation.
Mr. Speaker, may I inquire how much time each side has remaining.
The SPEAKER pro tempore. The gentleman from New York has 10 minutes
remaining. The gentleman from Ohio has 16 minutes remaining.
Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished
gentleman from Rhode Island (Mr. Cicilline).
Mr. CICILLINE. Mr. Speaker, I thank the chairman again for yielding.
I just want to make clear, once again, that this bill does not
appropriate money to the FTC, and I think the chairman of the Judiciary
Committee and I will continue to advocate for more funding. But this is
not an appropriations bill. The ultimate decision about whether money
will be appropriated to the FTC or the Department of Justice will be
made like every other appropriation: by the Members of the Congress of
the United States after a robust debate, and the Congress will decide.
This generates revenue and makes certain that big mergers are paid
for by gigantic near monopolies of big corporations and not by our
constituents, and it lowers the price for merger reviews on smaller
transactions. So that is all it does.
Secondly, it is important to remember that, as Mr. Buck said, this
isn't a Republican or Democrat bill.
I want to read to you a statement from Senator Klobuchar and Senator
Durbin:
``The Merger Filing Fee Modernization Act is the product of years of
bipartisan work in both the House and
[[Page H8263]]
Senate to improve the enforcement of our antitrust laws and protect
competition and consumers. This package of bills will update merger
filing fees and help ensure that the Federal antitrust agencies can be
properly funded, that information on foreign subsidies is made
available to Federal enforcers, and that State antitrust enforcement
can proceed more efficiently and without needless delays.''
I have a statement from Senator Lee, Senator Cotton, and Senator
Grassley--Republicans in the Senate--who say: ``This package represents
a strong, bipartisan consensus approach to strengthening enforcement of
the Federal antitrust laws, against both Big Tech and other bad
actors.''
So this is widely supported by Republicans and Democrats in both
Chambers, and I think it is an example of where we can work together
collectively to respond to a serious problem: the consolidation of
economic power. Antitrust is important because we know competition is
the single greatest driver of innovation. Without competition you don't
have innovation, and innovation produces more choices, better quality,
and lower prices. It benefits consumers, small businesses, and workers.
The SPEAKER pro tempore (Mrs. Luria). The time of the gentleman has
expired.
Mr. NADLER. Madam Speaker, I yield the gentleman from Rhode Island an
additional 30 seconds.
Mr. CICILLINE. I say again, this is about supporting competition with
some very commonsense proposals that have strong bipartisan support in
both Chambers.
We can finally let Big Tech know that the time in which they can do
whatever they want and continue to behave as monopolists is coming to
an end.
Overwhelmingly, the American people support reining in Big Tech--over
70 percent in poll after poll.
But one other thing I wanted to just mention is that with
concentrated economic power often comes concentrated political power.
That is one of the dangers of monopoly. They have too much political
power. Let's prove them wrong and pass this bill.
Mr. JORDAN. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, concentrated political power: that is what the
Department of Justice is doing right now. They are weaponizing the
Department of Justice against the American people.
The most concentrated political power--awesome power--you can have is
the Federal Government. And I would argue the agency within the Federal
Government that is the most dangerous is the Department of Justice, and
we are going to give them $140 million more over the next 5 years.
It is amazing. Again, Mr. Cicilline can say what he wants, Madam
Speaker, but that is not consistent with what the chairman said. The
chairman said that this is going to give more resources to antitrust
enforcement.
Here is what the Democrats' own committee report says: ``The upgraded
fee structure would provide the U.S. Department of Justice and the
Federal Trade Commission with additional resources.''
So either Mr. Cicilline is completely wrong, or the majority report
is wrong, or the chairman is wrong. Somebody is wrong.
We know what is going to happen. This is the same old game we hear
all the time: Oh, it is not really appropriated, but we are charging
more money.
It will result in more money coming to the concentrated political
power at the Justice Department, but it is really not going to go
there.
Give me break. We know where it is going. They have even said it in
their own darn committee report.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I find it amazing that the gentleman from Ohio would
argue we shouldn't give appropriations to the Department of Justice.
Congress votes appropriations for every department, and if you think
the Department of Justice is not being run properly, well, there is a
Presidential election coming up. That is the purpose of elections.
At the present time, the American people 2 years ago elected Joe
Biden President and Kamala Harris Vice President, and the President
appointed the Secretary of Justice and the chairman of the FTC, both of
whom I think are doing an excellent job. But it is a matter of debate
which can be decided in the next Presidential election.
To argue that we should starve agencies of the United States
Government so that they cannot do the job for which Congress passed
statutes mandating them to do the job is absurd.
All that the increase in fees does is update, because the last
increase of fees was I don't know how many years ago, and there has
been inflation. We need the enforcement against the large Big Tech
companies because, as Mr. Jordan already earlier acknowledged, they
represent a threat. I think he thinks they represent a different threat
from the one I think they represent, but everybody agrees they
represent a threat and that their power must be properly supervised by
proper enforcement of the antitrust laws.
Madam Speaker, I reserve the balance of my time.
Mr. JORDAN. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I just point out that I didn't say that Congress
shouldn't appropriate dollars to Federal agencies. What I said is that
we shouldn't give more money to the Department of Justice in light of
what we have seen them do and in light of what 14 whistleblowers have
told us over the last several months what they are up to. That is a
completely different point.
I am all for looking for ways to cut certain agencies and reduce
Government and the power that they have, but I didn't say that. I just
said that we shouldn't be giving them more money, for goodness' sake,
in light of what they have been doing. I think that is a pretty
reasonable position, and, frankly, I think it is the position the vast
majority of the country would have when they look at the actions they
have seen from their Department of Justice and the tax money that
supports that agency.
Madam Speaker, I reserve the balance of my time.
Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished
gentleman from Colorado (Mr. Neguse), who is a member of the committee.
Mr. NEGUSE. Madam Speaker, I thank Chairman Nadler for his leadership
and for yielding the time. I also thank my good friend and colleague,
Mr. Cicilline from Rhode Island, who chairs the Antitrust, Commercial,
and Administrative Law Subcommittee in the House. I have had the
privilege of serving with him in the last couple of years, including as
vice chair of his subcommittee, during the course of the bipartisan
antitrust investigation that we undertook in the 117th Congress.
I am here today, Madam Speaker, to rise in support of my bill, the
Merger Filing Fee Modernization Act.
The current filing fee structure established in 2001 does not match
ongoing merger activity by American businesses. That is why this bill
is not a particularly complicated or complex bill. We know these
mergers require thorough review by our antitrust enforcer agencies,
because it has allowed larger businesses to avoid paying their fair
share and hurting small, mid-sized, and medium-sized businesses.
This bipartisan legislation adjusts that antiquated merger filing fee
structure and fixes the filing fees to the Consumer Price Index. The
bill includes a number of other provisions that I know have been
discussed at great length today.
Let me just say it is a commonsense policy that ensures Federal
antitrust enforcers have the income to support, ultimately, this
important work that they are doing.
But I have to say I have been a bit shocked by the tenor of the
debate on the House floor today.
Just to reiterate something that I think the chairman articulated
previously, this is a bipartisan bill. Every Senator voted for it. I
imagine that the ranking member's objections come as some shock to
Senator Cruz or Senator Lee or Senator Hawley. These are not Democratic
Senators, they are Republican Senators, and they support this
[[Page H8264]]
bill. I am befuddled as to understanding why the ranking member
doesn't.
In any event, it is a good bill, it merits the support of Members on
both sides of the aisle, and I am hoping that the ranking member may
see the light when the vote comes up.
Mr. JORDAN. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, I would just add I have talked a lot about my concerns
with the DOJ in light of what we have seen from that agency, and I
think that is the main reason why this bill is so wrong and it should
not be supported.
But the FTC is also engaged in all kinds of things that I just think
are interesting.
One commissioner said that she supports prioritizing FTC
investigations related to ``systemic racism and rulemaking for racist
practices.'' A senior FTC adviser who called Kay James, the former head
of the Heritage Foundation, she called her a bigot and criticized
viewpoint diversity. She is the one who developed FTC policy on AI and
discrimination.
Republican Commissioner Wilson described Democrat goals as ``rooted
in unified world view that draws heavily on Marxism.''
This is an agency controlled by people who have a radical belief
system, radical opinions, and radical political views. Again, not only
is the Department of Justice getting $140 million more a year, so is
the FTC which is run by people with those kinds of positions.
So, again, I think we don't want to be giving more money to agencies
with this kind of track record, particularly, I think, now when the
American people are about to speak on whom they want to control their
Congress. That is why I think we should vote ``no'' on this
legislation, hopefully it goes down, and do the oversight that needs to
be done of these two agencies so we can point out the facts and the
truth and get that to the American people.
Madam Speaker, I yield back the balance of my time.
{time} 1330
Mr. NADLER. Madam Speaker, this bicameral and bipartisan legislation
is supported by a broad coalition of labor, consumer, and public
interest groups.
As the Biden-Harris administration noted in its Statement of
Administration Policy on this bill, H.R. 3843 would advance its
``critical mission'' to ``combat the excessive concentration of
industry, the abuses of market power, and the harmful effects of
monopoly and monopsony.''
Every single United States Senator--every Democrat, every
Republican--agrees with this. It is only in this House that there are
some people who, for unfathomable reasons, disagree.
Madam Speaker, this bill is squarely in the tradition of the Sherman
Act, the Clayton Act, and the Celler-Kefauver Act, and it should be
passed.
Madam Speaker, I urge all Members to support this important
legislation, and I yield back the balance of my time.
Ms. JACKSON LEE, Madam Speaker, I rise in support of H.R. 3843, the
``Merger Filing Fee Modernization Act of 2021,'' a bill to ensure fair
treatment of small- and medium-sized businesses that are engaged in a
merger.
This bill enhances fairness by incentivizing mergers between small
and medium-sized enterprises while simultaneously disincentivizing
monopolization from larger corporations.
Small and medium-sized enterprises, also known as SMEs, are integral
to the U.S. economy. According to the Office of the United States Trade
Representative, over the past decade, SMEs have created approximately
two-thirds of new private sector jobs, greatly expanding the job market
and providing new financial opportunities for hardworking families and
individuals.
However, current merger filing fees have impeded businesses that are
looking to merge because steep fees may be unaffordable for these SMEs.
Meanwhile, large corporations benefit from disproportionately smaller
merging fees that enable them to dominate marketplaces by absorbing
smaller companies.'
This bill intends to modify and expand the schedule by establishing
graduated merger filing fees and requiring that such fees are adjusted
each year based on the Consumer Price Index.
To ensure a fair market for the public, the Merger Filing Fee
Modernization Act of 2021 adjusts the fees made during the merger
process based on the aggregate total amount of the merger, considering
the adjusted price at the beginning of the fiscal year.
The Merger Filing Fee Modernization Act of 2021 intends to directly
solve this issue by amending the aggregate total brackets utilized to
determine the filing fee of the merger, where larger aggregate totals
incur greater fees.
This legislation would amend the merger fees by decreasing them from
$45,000 to $30,000 for the first bracket. The criteria to qualify for
this bracket are also adjusted. The bracket qualification has been
increased to include aggregate total amounts of up to $161,500,000 from
the previous value of $100,000,000.
Similar adjustments are made to the next two brackets, decreasing the
meger fee for companies in the second bracket from $125,000 to $100,000
and decreasing the fee of the third, and formerly highest, bracket from
$280,000 to $250,000.
Finally, the bill will add a fourth, fifth, and sixth bracket for the
largest companies which have aggregate total amounts that exceed
$1,000,000,000, $2,000,000,000, and $5,000,000,000 respectively. In
this way, larger mergers are less incentivized as they must pay a
larger fee than before.
According to Texas Economic Development, the state of Texas is home
to 3 million small businesses. Texas is home to diverse and numerous
small businesses committed to technological discovery and economic
stimulation, ranging from scientific development to agriculture and
forestry.
Allowing SMEs to thrive without the extra pressures of merger fees is
integral to safeguarding the economic freedoms these businesses need in
order to grow and compete against large corporations who seek to
dominate and monopolize the marketplace.
Overall, these changes accomplish two goals in promoting a fair
marketplace for small- and medium-sized companies.
First, the adjusted merger fee has been decreased for smaller firms,
and the qualifying aggregate total has been increased, which encourages
mergers among medium-sized companies. By decreasing the fees required
for mergers, medium-sized businesses will have more financial resources
to reallocate towards developing their workforce, acquiring needed
materials, and reinvesting.
Second, this bill hopes to discourage mergers between larger
businesses by establishing larger brackets such that businesses whose
aggregate total accounting for more than $1,000,000,000,
$2,000,000,000, and $5,000,000,000 will not be grouped together. These
businesses will be required to pay a larger fee, ideally discouraging
monopoly formations.
Additionally, this bill seeks to provide oversight of foreign
transactions that may potentially influence the U.S. market. Merging
companies must disclose any subsidies received from foreign economic
competitors.
The Merger Filing Fee Act of 2021 promotes mergers between medium-
sized businesses by adjusting the fee for merging based on the 2022
fiscal year, while also disincentivizing larger-sized businesses from
forming monopolies by creating higher brackets with greater fees.
A fair marketplace can be fostered through the implementation of this
bill, encouraging small and medium-sized businesses to look for growth
opportunities and mitigate extra pressures added by foreign economic
imbalances.
Madam{ Speaker, I urge my fellow Congressmembers to support this bill
dedicated to ensuring a fair marketplace for ambitious and innovative
American companies by eliminating cost hurdles and establishing
fairness in relation to large corporations.
The SPEAKER pro tempore. All time for debate has expired. Pursuant to
House Resolution 1396, the previous question is ordered on the bill, as
amended.
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.
The SPEAKER pro tempore. The question is on passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. JORDAN. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________