[Congressional Record Volume 170, Number 39 (Tuesday, March 5, 2024)]
[Senate]
[Pages S1101-S1104]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             CLOTURE MOTION

  The PRESIDING OFFICER. Pursuant to rule XXII, the Chair lays before 
the Senate the pending cloture motion, which the clerk will state.
  The legislative clerk read as follows:
  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Ronald T. Keohane, of New York, to be an Assistant 
Secretary of Defense, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Vermont (Mr. Sanders) is 
necessarily absent.
  Mr. THUNE. The following Senators are necessarily absent: the Senator 
from Alabama (Mrs. Britt), the Senator from North Dakota (Mr. Hoeven), 
the Senator from Mississippi (Mrs. Hyde-Smith), the Senator from Idaho 
(Mr. Risch), and the Senator from Utah (Mr. Romney).
  The yeas and nays resulted--yeas 65, nays 29, as follows:

                       [Rollcall Vote No. 68 Ex.]

                                YEAS--65

     Baldwin
     Bennet
     Blumenthal
     Booker
     Boozman
     Brown
     Butler
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Collins
     Coons
     Cornyn
     Cortez Masto
     Cotton
     Cramer
     Duckworth
     Durbin
     Ernst
     Fetterman
     Fischer
     Gillibrand
     Graham
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Kaine
     Kelly
     King
     Klobuchar
     Lujan
     Manchin
     Markey
     McConnell
     Menendez
     Merkley
     Moran
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Reed
     Ricketts
     Rosen
     Rounds
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Van Hollen
     Warner
     Warnock
     Warren
     Welch
     Whitehouse
     Wyden
     Young

                                NAYS--29

     Barrasso
     Blackburn
     Braun
     Budd
     Cassidy
     Crapo
     Cruz
     Daines
     Grassley
     Hagerty
     Hawley
     Johnson
     Kennedy
     Lankford
     Lee
     Lummis
     Marshall
     Mullin
     Paul
     Rubio
     Schmitt
     Scott (FL)
     Scott (SC)
     Sullivan
     Thune
     Tillis
     Tuberville
     Vance
     Wicker

                             NOT VOTING--6

     Britt
     Hoeven
     Hyde-Smith
     Risch
     Romney
     Sanders
  The PRESIDING OFFICER (Mr. Warnock). On this vote, the yeas are 65, 
the nays are 29.
  The motion is agreed to.
  The PRESIDING OFFICER. The Senator from Minnesota.


                              Merger Fees

  Ms. KLOBUCHAR. Mr. President, I am here to talk about a provision in 
the appropriations bills that was unveiled just yesterday. I thank my 
colleagues for their work on these bills--it has been incredible--and 
the bipartisan effort in the Senate and the

[[Page S1102]]

House. I know how tough these negotiations can be. There are so many 
good things in it that I am sure I will be talking about myself over 
the next few weeks.
  But I want to focus on one thing that I hope we can still clarify and 
change. I don't think it was the outcome that people thought when they 
voted on the floor a little over a year ago on something. This sort of 
seemingly technical language that was included in this appropriations 
bill on our Antitrust Division of the Department of Justice basically 
upends the work that Senator Grassley and I have done--many others 
joining us--to update the merger fees after I think it is over 20 
years. We worked very hard on this over a 5-year period and got buy-in 
from the Judiciary Committee. We worked with Senator Lee and had a 
combination amendment that got significant support in this body--well 
over 80 votes--that focused on Senator Lee's venue amendment that he 
and I had to make sure that cases in the tech arena stayed in the 
States, antitrust cases stayed in the States where they were brought; 
then, secondly, that we actually funded a division that has been 
underfunded by many measures with 300-plus less employees than they had 
in 1979. That is the Antitrust Division of the Justice Department.
  It may not be the first thing on everyone's mind, but if you are 
someone wondering why does something cost so much or why don't I have a 
choice, you have got to look at the consolidation going on in this 
country. If you wonder why do I have to pay this much for a concert 
ticket, you might want to look at the fact that Ticketmaster has got a 
90-percent monopoly on big events, an 80-percent monopoly on pro 
events--pro sports events--and a 70-percent monopoly on all events. So 
it is an issue that matters to people.
  This Chamber, unfortunately--I see Senator Kennedy here who has 
worked with me diligently on a bill about the news organizations and 
the monopoly tech companies. We have many good ideas here, some of 
which--including the bill I have with Senator Kennedy--that have come 
through the Judiciary Committee, but we haven't been able to get the 
political support on both sides of the aisle to actually pass these 
bills. So that leaves us with one shiny light when it comes to 
consolidation, and that is the work that has been going on in bringing 
these cases.
  For the tech cases, could I say, several of them were initiated 
during the Trump's Justice Department and have continued into the Biden 
administration's Justice Department. But to do that, to take on the 
biggest companies the world has ever known, to take on Google, with the 
90 percent market share, you have to have resources. You can't have a 
Justice Department Antitrust Division that has, say, one-fourth or one-
third of the staff of just one of these companies. That just isn't 
really going to work. And guess what. They know it.
  That is why Senator Grassley and I put together this merger fee bill. 
Today, he and I are sending a letter to the Appropriations Committee 
leaders asking them to take out some of this language that actually 
upends the bill that we not only worked on but we passed in this 
Chamber. It wasn't one of those things tucked in the bill. We actually 
had to have an amendment vote in this Chamber. Over 80 of our 
colleagues voted on it, and now it is being implemented.
  There is less money that they have to pay for smaller mergers--which 
a lot of smaller companies like--and bigger fees for mergers over $500 
million. Let's just say for them it is a drop in the bucket; well, not 
for the Justice Department Antitrust Division. We have now seen about 
46 million more dollars come in, and somehow, through the magical 
Appropriations Committee process, that money has now vanished.
  I have faith that the people on the Appropriations Committee did not 
mean to upend an act of Congress and take the money away from the 
antitrust enforcers. So this is what I came here to talk about today.
  Monopoly companies are starting to reign over our economic and family 
lives, particularly in the tech area. And, of course, we have passed no 
updated competition laws since the invention of the internet, while 
other countries, of course, have, other countries, including--as I see 
Senator Kennedy over there--in the area of news organizations.
  Singapore just passed a law. Canada just passed a law. Australia has 
passed a law. Hundreds of millions of dollars are now being paid to 
actually pay for news content.
  The provisions released this weekend are in direct contradiction to 
the work that was done in this Chamber. The bipartisan Merger Filing 
Fee Modernization Act passed less than 15 months ago. It passed in the 
Senate on an 88-to-8 vote, and then the bill passed the full Senate--
the other provisions included, unrelated to this--on a vote of 68 to 
29. It was signed into law December 29, 2022.
  The Congressional Budget Office found that this would generate about 
$1.4 billion in revenue over 5 years, split between the FTC and the 
Department of Justice. That is an average of a more than $140 million 
increase in fee collections per year for each Agency.
  For fiscal year 2024, the CBO estimated that the Department of 
Justice Antitrust Division would earn $278 million under the bill--an 
increase of $88 million from a year prior. Yet the budget released this 
week appropriated only $233 million to the Antitrust Division. That is 
an estimated $45 million in fees that were diverted away from antitrust 
enforcers.
  But that is not all. The appropriation reverses decades of 
precedent--25 years it said the overage of fees would go to the 
Antitrust Division. So if they generate the fees, then they get to have 
those fees to help hire the lawyers to take on the big companies. That 
is how it has always worked. One pen, and they changed it. We weren't 
able to see it ahead of time. We worked with them after some language 
came out in July. Unbeknownst to us, they just took the money and ran. 
They took the money, and they put it in other parts of the government 
budget. This appropriation, as I said, reverses how this has been done.
  So let's just get this straight. Senator Grassley and I changed the 
law with 88 votes to get more money into that Division. Instead, going 
forward, they are not going to get any of the money. So it almost makes 
it ridiculous that we tried to help by passing the law, because if we 
hadn't done anything, then maybe no one would have noticed it, and then 
the Appropriations Committee wouldn't have taken the money.
  When Congress acts to increase merger fees or makes a policy 
decision, I think the Appropriations Committee's job is then to follow 
that policy decision.
  The CBO predicts an $88 million year-over-year increase in the fees, 
but enforcers at the DOJ only get to see $13 million of that increase, 
with no opportunity to collect more fees if merger and acquisition 
activity exceeds what appropriators predict.
  On top of this, unlike in previous years, the budget fails to fund 
the Antitrust Division's non-fee-generating work, like criminal price-
fixing and monopolization cases. Last year, appropriators gave the 
Antitrust Division $35 million to fund these efforts. This year, they 
gave zero. This may put the Antitrust Division in the untenable 
position of deciding whether to block an anti-competitive merger or sue 
an anti-competitive monopolist. They should have the resources to do 
both. They actually bring money into the government.
  I understand the difficult choices that Appropriations Committee 
members face every year. There are always difficult tradeoffs in 
funding, especially when budgets are constrained. I have even been told 
that the reduction in the appropriations was driven by lower-than-
expected fee collections in the first quarter, but this doesn't justify 
diverting fees away from the Antitrust Division if that purported 
shortfall is made up later in the year. As currently drafted, the 
Antitrust Division will not have the resources to do its job if merger 
activity increases later this year, as we have already observed during 
the second quarter.
  This is not an appropriations decision; it is a policy against 
antitrust enforcement that undermines a bipartisan law. The clear 
intent of our legislation that received 88 votes out of 100 in the U.S. 
Senate--actual votes--was to provide antitrust enforcers with more 
resources. No one, when voting for this bill, believed the goal was to 
pay for anything but increased antitrust enforcement. It says it right 
in

[[Page S1103]]

the preamble to the bill. The act's purpose is ``to promote antitrust 
enforcement and protect competition through adjusting premerger filing 
fees, and increasing enforcement resources.''
  The administration said the law would support its critical mission 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.''
  Senator Grassley said--and I am so pleased he joined me in an effort 
today--in a letter to say: Please, please clarify this. Maybe you 
didn't understand that it upended the law that we passed in this 
Chamber when you did it. You have a lot going on. You try to make 
compromises. I get it. You do all this stuff. But it is one thing to 
reduce someone's underlying budget, which happens from time to time; it 
is another to actually take the fees that we as a Chamber decided to go 
into a purpose and then decide that, well, we are just going to take 
away their merger fees that they have generated.
  Grassley said this:

       It's important that these government agencies have the 
     resources needed to protect consumers and taxpayers. I'm 
     proud to co-author this bipartisan bill, which will improve 
     fairness in the fee schedules for proposed mergers and 
     strengthen the ability of these agencies to challenge 
     anticompetitive transactions.

  Now is not the time to kneecap the ability to enforce our antitrust 
laws. Over 75 percent of U.S. industries have become more concentrated 
since the late 1990s. Since 2008, American firms have engaged in more 
than $10 trillion in acquisitions--that is ``trillion'' with a ``t''--
and the 5 most powerful tech companies have completed more than 700 
acquisitions, combined, since 1987.
  Some of those are great. Some of that is good. But we all know now, 
when you have Google with a market share of 90 percent in the search 
market and you have anti-competitive behavior where these companies are 
putting their own products at the top of the search engines and pushing 
down small businesses--which is why the National Federation of 
Independent Business has made one of their top priorities passing 
another bill that Senator Grassley and I have to put some rules of the 
road in place--you know we are seeing an issue. And we are not just 
seeing it in tech. We see it in everything from agriculture to 
ticketing, from cat food to caskets. This is why the administration put 
forward the Executive order. This is why we repeatedly see bipartisan 
support to do something about monopolies.
  As Adam Smith, the godfather of capitalism, said--he didn't just talk 
about the ``invisible hand,'' someone who influenced our Founding 
Fathers. As he said, beware the unbridled power of monopolies.
  Today, antitrust enforcers--the cops on the beat--are being asked to 
do more with way too little. Between 2008 and 2020, the economy grew 
twice as fast as antitrust appropriations increased. For example, in 
2010, the Antitrust Division received $163 million. In 2020, the number 
had increased only $3 million. At the same time, merger filings 
increased 80 percent, with 3,152 reportable mergers in 2022 alone. Yet, 
as of the fall of 2022, the Antitrust Division, as I noted, had 352 
fewer employees than it did in 1979.

  Think about the power we see out there with these companies. Do we 
not, as Americans, want some even playing field for small businesses 
and some rules of the road? That is why some of my most conservative 
colleagues have joined me--and some of our liberal colleagues and some 
people who are in the middle--in saying we need rules of the road. But 
if we are not going to do that, at least let our antitrust enforcers do 
their job.
  It is no wonder we have this competition problem. Our competition 
enforcers don't have enough resources to effectively take on 
multibillion-dollar, much less multitrillion-dollar, companies.
  Monopolies are spending millions to hold on to their power. Last 
Congress, I got to see up close how hard big tech companies are willing 
to fight to maintain their dominance.
  I love these products. I have an iPhone. I have a Fitbit. I look at 
the platforms all the time. I get it. But I also believe in 
competition. You can still have these strong companies and make sure we 
have competition in these areas.
  After an unprecedented lobbying effort by the dominant platforms, 
critical antitrust bills did not get a vote on the Senate floor, 
including ones that had come through the Judiciary Committee. It was 
reported that tech-funded groups spent more than $120 million in 
advertising against these bills and $90 million on lobbying over an 18-
month period. That is more than $200 million, really, on one bill, the 
bill that Senator Grassley and I have--not the merger fee bill, which 
was nearly unanimously supported until it was upended mysteriously this 
week, but on our other bill about self-preferencing.
  While that one sector spent that much--that is one sector of our 
economy, $200 million on one bill--the appropriators just took $45 
million in potential fees and hid them under a rock somewhere in the 
Federal Government. And in just 1 week last May, a single industry 
group spent $22 million on TV ads against the legislation I just 
mentioned--$22 million against one bill in 1 week on TV ads all over 
the country. That is more than four times the amount allocated to the 
Antitrust Division per week.
  I remember scrolling through the news and seeing internet popup ads 
that displayed in Washington, DC, from industry groups. They would say 
things like: Senator Klobuchar could break Google Maps. The lawyers 
made them put in the ``could,'' but you could hardly read it. Senator 
Klobuchar could destroy FaceTime. Senator Klobuchar could break up 
Amazon Basics and take away Amazon Basics. They just put that ``could'' 
in the smallest font possible, but the lawyers made them do it because 
they knew it wasn't true. That is what we are up against.
  Now, I know it is hard to get these bills done now, but I thought, 
well, at least the Antitrust Division has brought very significant 
actions involving Google's dominance with ads and other platforms. 
Those are big-deal things. And the FTC has brought a case that started 
during the Trump administration against Facebook. These cases are big 
deals if we want to do something about it because it doesn't look like 
we are going to get anything done here.
  It takes time, it takes talent, and it takes money to even the 
playing field. For example, the DOJ's case seeking to break up Google's 
search monopoly started in 2020, and closing arguments won't be heard 
until May of this year. And that case only confronts one of the 
monopolies.
  The Antitrust Division is trying these cases while simultaneously 
reviewing and challenging anti-competitive mergers.
  Just Monday, JetBlue abandoned its merger with Spirit after the DOJ 
prevailed at trial. Anyone who travels knows you want to have choices. 
You want to be able to look at different air fees. I am looking at the 
pages. They know what I mean. You look, and you try to find the 
cheapest airfare you can find. Well, you are not going to be able to do 
that if there are no low-cost carriers and you aren't able to choose.
  In the last 3 years, the Antitrust Division has also successfully 
protected consumers by investigating and challenging mergers between 
Penguin and Random House, Adobe and Figma, and Visa and Plaid, among 
many others. Recent reports indicate that the DOJ is wrapping up 
investigations that could lead to monopolization cases involving Apple, 
involving Live Nation and Ticketmaster.
  While public information about these potential cases is obviously not 
out there--it shouldn't be--one thing we absolutely know is that 
litigating against these companies will take significant resources. 
That is what this is about. Will I agree with every case they bring? 
No. But I believe in the principle of competition, and I just believe 
also in the principle that when the Senate takes a vote on something 
and decides that we are going to actually put more resources into an 
Agency generated by merger fees that we have designated to go to that 
Agency, we mean it. A little group in a committee behind closed doors 
can't change that decision. They shouldn't be allowed to change that 
decision even if they don't like some of the cases that are brought.
  The next time someone complains to you about a Taylor Swift ticket 
and

[[Page S1104]]

how much it costs or a Bad Bunny ticket and wondering why things got 
screwed up and why it never got investigated the way they thought it 
should, I guess we will have to say: Well, there was this little group 
of a committee that made a decision, even though the whole Senate voted 
to put the funding into a Division of the Justice Department to be able 
to do its job. Then, over a few months, a group of us just decided: We 
don't really want to do that. We want to actually take that money and 
maybe help someone else.
  I am sure it may be a good cause. We don't know where the money went.
  But it is against and upends the intent of the U.S. Senate to do 
something that was woefully underfunded for years and decades. And 
Senator Grassley knows this. That is why he did the bill with me. That 
is why today we joined together in a letter to the appropriators asking 
them--this just can't abandon your intent. I just don't believe it was 
their intent to--when we actually passed a law to add funding through 
these merger fees, their intent can't have been to say: We are actually 
going to take away any upside for you; if you do more work and get more 
fees in, we are going to take away the upside that you always had for 
25 years.
  Yes, did they increase the budget by 8, 10 million, whatever it was? 
Yes. Yes, is it a hard budget year to make decisions? It is. But the 
point is, sometimes--like we did with semiconductor chips or we do with 
other things--that Congress makes a decision through the committee 
process--a long, tenuous process--that we are going to take one area of 
the government and actually not just put bandaids on, not just increase 
the budget a little bit, that we are going to do a game-changing thing.
  That is what we did with the merger fee change. That is why Senator 
Grassley and I worked on it for so long and got it through the 
Judiciary Committee. We were tired of the 3 million, 4 million that 
would hire the lawyers and still be one-fourth the size of the legal 
department. We were tired of having 350 less employees in that division 
than they had in 1979.
  We made a decision as a Senate to vote for that and do that. And I 
just don't think we should be upending that decision through an 
appropriations process.
  I got involved in this a long time ago when I was in the private 
sector. I represented MCI. I did a lot of work in telecom. And I saw 
firsthand what happened when you actually got competition, when you 
actually took a part of monopoly. What happened? Long distance rates 
went way down. What happened? We had burgeoning cell phone industry.
  But before that, it was like the cell phones were the size of a 
Gordon Gekko's phone in that movie ``Wall Street.'' They were like a 
brick.
  Competition brought us that. Capitalism brought us that. But 
capitalism in America has always had the guardrails put around it, 
which is antitrust enforcement, as unsexy as it may sound.
  It has made a difference in this country, and it is one of the 
reasons why we have this economy that can thrive, because we say at 
some point: Whoa, that is a monopoly, so we have to make sure there is 
some competition.
  We can't do that here anymore. The Senate is not going to sit there 
and start deciding to break up this and break up that. Our antitrust 
enforcers do it. Our antitrust enforcers--maybe they don't break it up, 
but they say: Hey, you have to divest these areas of the country where 
you two companies that want to merge will become one and you will be 
the only game in town. That is not going to work for competition. It is 
incredibly complex.
  So it isn't always a sympathetic case to make for having lawyers so 
they can take on the case against these companies, but it is a 
sympathetic case to make that we have too much consolidation, that we 
have to bring prices down, that you shouldn't have to pay all this 
money for concert tickets and all these hidden fees, that you shouldn't 
have to pay this much when there is so much consolidation in the 
grocery area and the like or in agriculture and things like that. That 
is what the antitrust division does.
  I am hopeful. I see Senator Murray, who is such an incredible leader, 
here on the floor and hope we will be able to do something--a technical 
change to this bill--either this week, or we have another bill next 
week. So we can, at least, just bring back this part of the bill to the 
original intent of Congress.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Kelly). The Senator from Washington.

                          ____________________