[Congressional Record (Bound Edition), Volume 156 (2010), Part 4]
[Extensions of Remarks]
[Pages 4724-4725]
[From the U.S. Government Publishing Office, www.gpo.gov]




 ENSURING THAT AMERICAN FAMILIES AND SMALL BUSINESSES RECEIVE THE FULL 
   BENEFITS OF COMPETITION IN HEALTH CARE AND HEALTH INSURANCE REFORM

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                        Tuesday, March 23, 2010

  Mr. CONYERS. Madam Speaker, Sunday night, Congress voted to affirm 
the right of all Americans to quality health care at affordable cost, 
by fixing our country's broken health insurance marketplace. This is an 
effort that I and others have been working on for decades, and while 
the bill does not yet achieve everything we have sought, it is a 
monumental step forward, of which those who voted to take it, in the 
face of the relentless campaign of disinformation bankrolled by its 
opponents, can all be rightly proud.
  Now, as this historic effort moves from the legislative arena to 
implementation, I would like to say a few words, as Chairman of the 
House Judiciary Committee, about the critical role for competition in 
making the health care insurance marketplace work effectively to serve 
consumers and promote prosperity--and the assistance that the federal 
antitrust enforcement agencies can and should provide in keeping 
competition considerations at the forefront.
  In implementing this comprehensive legislation, the Department of 
Health and Human Services will be called upon, as will other federal 
agencies, and the States, to make assessments in a variety of contexts 
as to whether the marketplace is functioning properly, or whether 
abuses are occurring. In making these assessments, and in deciding on 
appropriate steps to address any abuses or dysfunction, the federal 
agencies and the States can benefit greatly from competitive analysis 
provided by our federal antitrust agencies, the Department of Justice's 
Antitrust Division and the Federal Trade Commission. I would urge them 
to make full use of this assistance.
  Both the Antitrust Division and the FTC have a long history of 
advising other federal agencies, as well as State legislatures and 
agencies, on ways to formulate policies and make regulatory decisions 
consistent with maintaining and promoting healthy competitive market 
incentives. In addition to formal advice, generally in the form of 
public comments, which both federal agencies provide in areas in which 
they have developed expertise, the Antitrust Division routinely 
provides informal guidance to other federal agencies through 
interagency consultation and through OMB-supervised interagency review 
and comment.
  While the advice of the two antitrust enforcement agencies is non-
binding, it is generally given substantial weight. The two agencies are 
widely recognized as having developed, in the course of antitrust 
investigations and enforcement actions over many decades, unmatched 
experience and expertise in analyzing markets for how competition is 
working, or not working. They can assess whether lack of effective 
competition is behind a problem, or is worsening it, and if it is, can 
recommend

[[Page 4725]]

ways to unblock competition as part of any regulatory response.
  Even when competition cannot fix a dysfunctional market on its own 
entirely, it will almost always contribute to the solution, by ensuring 
that market incentives are aligned in a healthy fashion, in the 
direction of serving consumers rather than taking advantage of them.
  Competition advice from the federal antitrust enforcement agencies 
will not only help ensure that health care and health insurance 
regulatory policy is appropriately sensitive to competitive conditions 
and dynamics in the markets involved. By helping place regulatory 
policy on a sound analytical footing, it will strengthen it against any 
potential legal challenge by those opposing reform efforts. Moreover, 
the very fact of antitrust oversight in connection with this advisory 
analysis will help deter anticompetitive behavior.
  To take just one important example, the new law creates health 
insurance exchanges, to be set up by the States, to help make sure 
families and small businesses have meaningful choices for health 
insurance. In order for these exchanges to achieve their purpose, they 
need to attract not just the insurance companies that are already 
dominant in their market, but other insurance companies, including new 
ones eager to establish themselves. Dominant health insurance companies 
have many ways of protecting their dominance by making it harder for 
others to make competitive inroads. And they have powerful 
anticompetitive incentives to do just that.
  Accordingly, we can expect the dominant health insurance companies to 
be offering plenty of their own advice to State legislatures and 
agencies on how to structure the new exchanges, and we can expect that 
their advice will be tailored to favor their own interests. Their self-
serving advice, if followed, could have the potential to stop 
competition in its tracks, and deny consumers the benefits of choice, 
innovation, and affordability that competition brings.
  The more the States can keep promotion of competition in their sights 
as they design and implement the exchanges, the better those exchanges 
will work to widen the effective choices available for the families and 
small businesses who need them. And the federal antitrust enforcement 
agencies can be a valuable source of expertise in ensuring that the 
exchanges are designed and implemented so as to harness the power of 
competitive market incentives as fully as possible.
  Along with the antitrust savings clause in the text of the health 
care bill, which ensures that the normal operation of the antitrust 
laws is in no way altered or disrupted, use of this well-established 
advisory role will help ensure that the health insurance marketplace is 
fixed in a manner that makes maximum use of competitive market forces 
to achieve these important objectives for American families and small 
businesses.

                          ____________________