[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.
____________________