[Congressional Record Volume 168, Number 191 (Thursday, December 8, 2022)]
[Senate]
[Pages S7050-S7052]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



             Unanimous Consent Agreement Request--H.R. 3843

  Mr. LEE. Mr. President, I rise in strong support of H.R. 3843. This 
bipartisan package of commonsense antitrust reforms would bring a whole 
lot of much-needed improvements to the administration of our Federal 
antitrust laws.
  First, it would update our merger filing fees to reduce the financial 
burden on the vast majority of filers. Second, it would implement the 
State Antitrust Enforcement Venue Act to allow State attorneys general 
to benefit from the same protection as Federal antitrust enforcers so 
that their enforcement actions cannot just be transferred out of their 
State to more defendant-friendly jurisdictions. And, third, this 
legislation would require companies that submit premerger filings with 
the FTC and Department of Justice to notify the Agencies of any 
subsidies or support that they receive from foreign countries of 
concern such as China, Russia, and Iran. This will allow our antitrust 
enforcers to ensure that American markets are not being manipulated by 
hostile States.
  Finally, in addition to simply being good policy, these reforms are 
the product of bipartisan cooperation, exemplifying the model for 
future bipartisan cooperation on antitrust legislation.
  I, therefore, stand in strong support of this legislation and in 
support of this request.
  I would like to yield my time to the distinguished Senator from 
Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank my colleagues, Senator Lee and 
Senator Cotton.
  We are united on this, as is Senator Grassley, the ranking member of 
the Judiciary Committee, as is Senator Durbin, the chair of the 
Judiciary Committee. These proposals got through our committee 
unanimously. We were able to pass them in different forms through this 
Senate on parts of different bills. And now this combined grouping of 
bills that the three of us have led have now passed the House of 
Representatives.
  If you look at what is going on in our country right now, we have a 
competition problem in over 75 percent of our industries, ranging from 
ag to pharma to tech. A small number of large companies, more and more, 
are controlling more of the business than they did decades ago. Look at 
what just happened with Ticketmaster. The lack of competition is 
estimated to cost the median American household $5,000 per year.
  We all believe--we agree on some things, and we disagree on some 
things--but we all agree that we need to update our laws in some way. 
One of the ways you do this is to make sure that our enforcers can take 
on the cases against the biggest companies the world has ever known. 
The Agencies are now shells of their former selves. In 1980, when the 
Antitrust Division was working to break up AT&T, it had 453 lawyers. As 
of April of 2021, that number had fallen to 299. The FTC had 1,719 
employees in 1980. Now it is down to 1,100. We cannot take on the 
biggest companies the world has ever known or put fair rules of the 
road in place if we expect the enforcers to use bandaids and duct tape. 
Not only that, they bring in money when they bring these cases.
  So I am proud of the work Senator Lee and I have done together. I 
would note the leaders of both parties support

[[Page S7051]]

these concepts, including the former Assistant Attorney General in 
charge of Antitrust, Makan Delrahim, as well as the current 
administration, including the former Republican FTC Chair, Joe Simons, 
in addition to the current leadership in this administration.
  Capitalism is built on the foundation of competition and open 
markets. To quote Adam Smith, the so-called godfather of our capitalist 
system, the invisible hand of competitive entrepreneurship is key, but 
he also said that we must watch out for the overgrown standing army of 
monopolies.
  There is an old cartoon with a bunch of monopolies, sitting up there 
where our guests are, looking down. It used to be railroads. It used to 
be all kinds of other trusts. Now there are new guys in town, and it is 
equally as dangerous to capitalism.
  I appreciate the work of Senator Lee and Senator Cotton.
  I yield to Senator Cotton.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. COTTON. Mr. President, part of China's strategy to defeat the 
United States includes unfairly helping corporations buy out American 
companies. We can prevent these propped-up companies from gobbling up 
American businesses, but we don't always know which companies China 
subsidizes or by how much.
  A bill I introduced with Congressman Fitzgerald, the Foreign Merger 
Subsidy Disclosure Act, would require companies to disclose any 
subsidies they receive from foreign adversaries before a merger. If a 
company has received subsidies from a nation like Russia or China, U.S. 
antitrust regulators can use that information to determine whether or 
not the merger is fair. This bill has support from Republicans and 
Democrats, the administration, and the House of Representatives.
  We should pass this package of bills today to protect American 
businesses and consumers and to stop China's economic war against the 
United States.
  I yield to the Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, as in legislative session, I ask unanimous 
consent that the Senate proceed to the immediate consideration of H.R. 
3843, which was received from the House and is at the desk; further, 
that the bill be considered read a third time and passed; and that the 
motion to reconsider be considered made and laid upon the table with no 
intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Kentucky.
  Mr. PAUL. Mr. President, in reserving the right to object, the 
proponents of antitrust laws are famously zealous in their desire to 
eradicate the curse of bigness. To them, big is always bad except, of 
course, when it comes to the size and scope of government. The same 
people who supposedly fear the concentration of power in the 
marketplace celebrate the concentration of power in the State--a State 
that asserts itself into and nullifies private contracts, breaks up 
companies it deems too large, and inflicts punishment on those who 
succeed in the competition for customers. In short, antitrust seeks to 
cap the amount of success any company or business can enjoy and the 
benefits reaped by customers.
  As economist Yale Brozen wrote, antitrust law seems to say that firms 
should compete but should not win; firms should be efficient enough to 
survive but should not share the fruits of greater efficiency with 
their customers.
  And that is the fatal defect of antitrust policy.
  Antitrust fails to accept the lessons of economic history that 
voluntary exchange is a win-win proposition and that consumers are 
incredibly powerful in a free market system. A company that continues 
to reward its customers with superior products and innovations will, in 
turn, be rewarded with greater market share--with more--and will do 
better than their competitors and they will grow in size. Size is not 
necessarily a bad thing. The size of a business reflects its ability to 
please its consumers.

  But no company can achieve a strong position in the market and rest 
on its laurels. Consumers are too demanding, and competitors will arise 
to steal customers away from any firm that ceases to treat its clients 
well. Unlike players in the marketplace who must take note of consumer 
trends to survive, antitrust enforcers often fail to see what it is 
that is right in front of their faces.
  Just take the issue of video services. In 2005, when Netflix was 
already several years old and growing in popularity, the FTC--believe 
it or not--busied itself in blocking a merger between Blockbuster and 
Hollywood Video. So this is the inside of government. Netflix is 
beginning to take off, and the antitrust busters--the trust busters--
are breaking up VCR companies and DVD companies. They are going after 
Blockbuster. This is the incompetence of government, and we should not 
encourage this. Blockbuster and Hollywood Video no longer exist. Even 
now, Netflix is one they are worried about. So Netflix was the 
competitor that put Blockbuster out of business. They wanted to get 
Blockbuster in order to forbid them from merging. It makes no sense at 
all.
  No such fear exists today, though, that Netflix will be a monopoly 
since they are competing with Hulu, Peacock, Amazon Prime Video, 
Disney+, HBO Max, Apple TV, Paramount+, and others, but 5 or 6 years 
ago, you might have thought: Netflix is going to take over the world, 
that we have got to break them up. No. If companies please their 
consumers, let them get bigger. Bigger means they are giving their 
customers something they want.
  We didn't need government to break up Netflix. We didn't need 
government to interfere to ensure competition and innovation. All we 
needed to do was to let the marketplace work, but standing in the way 
of the benefits of the market are the antitrust zealots. The U.S. 
Chamber of Commerce has pointed out that enacting this bill would 
stymie legitimate business transactions between sectors and industries, 
create needless new bureaucracy, and spur unwarranted litigation.
  The package is even more nefarious than that. It will take money out 
of the productive sector--the private sector--and give it to 
bureaucrats in Washington. As Americans for Tax Reform correctly points 
out, this legislation would give the Biden administration hundreds of 
millions of dollars in new funds to pursue a progressive social agenda. 
They are talking about critical race theory and all of this craziness 
and injecting this into whether a company can merge or not. This is not 
something we need to give them more money to do; we need to give them 
less money.
  The package of bills here is just the first step to reinvigorating 
antitrust law. There is no lack of bills designed to empower government 
control over the marketplace. Take just one bill called the Competition 
and Antitrust Law Enforcement Reform Act, which would presume that any 
merger of a certain size violates the law and shifts the burden of 
proof to the merging parties. The government doesn't have to prove that 
your merging and becoming bigger is bad; you have to prove that your 
merging is somehow a benefit. People merge--they get bigger--to provide 
a lower cost and gain market share to gain profit for the consumers. 
That is what capitalism is based on. That is what Adam Smith really 
wrote about.
  According to Robert Bork, Jr., the antitrust bill would enact so many 
potential ways to prosecute, abuse, and torment companies that 
government would, in essence, become the real board of directors, and 
every major company would be ruled by the Federal Government.
  That is what is coming. That is what they are proposing. This bill 
today is a small step in that direction, but what they have in the 
pipeline is more government control of business. The package today is a 
mere precursor to designating the Department of Justice and the FTC as 
the central planners of the American economy. This bill seeks to take 
the power out of the hands of the consumers and hand it to the 
antitrust bureaucrats.
  Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LEE. Mr. President, it is unfortunate that an objection has been 
lodged. I think I disagree with every single assertion in there. It is 
not what this bill does, not in the slightest. This bill does not take 
the position that big is bad. I

[[Page S7052]]

am well familiar with the ``big is bad'' theory. That is not what this 
is. The merger fees are being reduced for, like, 85 percent of all 
filers. This simply allows them to do what they need to do and nothing 
more. It is unfortunate.
  I am thankful to my cosponsor, Senator Klobuchar, who is the lead 
sponsor of this bill, for the bipartisan effort in which she has 
managed this.