Standard Merger and Acquisition Reviews Through Equal Rules Act of 2018

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 872 and ask for its immediate consideration.

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to my friend, the gentlewoman from California (Mrs. Torres), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

General Leave

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks.

Mr. Speaker, I rise today in support of the rule and the underlying legislation.

The rule makes in order two bills reported favorably by the Judiciary Committee and a Senate joint resolution that gives this House an opportunity to utilize the Congressional Review Act to repeal the CFPB's onerous regulation on indirect auto lenders.

The first proposal we will consider today is the Citizens' Right to Know Act of 2018. This piece of legislation, offered by my friend and colleague from Texas, Judge Ted Poe, will bring much-needed sunlight to the Federal pretrial services programs.

We will also consider legislation offered by my fellow Judiciary Committee member, Representative Handel from Georgia, which ensures companies entering into merger proceedings will receive equal treatment, whether their case is reviewed by the Department of Justice or the Federal Trade Commission.

Finally, the House will consider a joint resolution that will repeal the Consumer Financial Protection Bureau's burdensome guidance on indirect auto lending. Senator Moran's legislation previously passed the Senate 51-47 on March 22, 2018. President Trump has also signaled his support for this legislation.

The rule makes in order one amendment to the Standard Merger and Acquisition Reviews Through Equal Rules, or SMARTER, Act.

Why?

Because all other amendments offered were not germane to the subject matter being discussed in these important pieces of legislation.

Mr. Speaker, today, we have an opportunity to debate a crucial component of the criminal justice system: federal pretrial release programs. Before the 1960s, defendants had three options to be released prior to trial. Individuals were either released upon one's own recognizance, or if they posted commercial bail, or the individual would remain in prison until his or her hearing date.

However, in the 1960s, the Johnson administration established a fourth option: pretrial services programs. These programs were originally intended to assist nonviolent, indigent individuals who did not possess the means to post commercial bail. The program captured information about the alleged offender's community ties and released low-risk individuals without financial obligations. The program only required a signature and a promise to appear in court.

While pretrial release programs were created to serve those individuals who do not pose a threat to the community and could not afford to post commercial bail, these taxpayer-funded programs have quickly expanded and overgrown their original intent.

Today, more than 300 pretrial release programs exist across the United States. These programs are being used to slowly eliminate a successful service that operates independently of Federal tax dollars: the commercial bail system.

In fact, a number of major cities across the country are exploring the potential of moving completely to a pretrial release system while significantly reducing the use of commercial bail.

However, the problem with this expansion and these federally funded pretrial release programs is that they allow violent individuals and repeat offenders to participate even when many of these defendants are perfectly capable of posting a commercial bond and have previously done so.

Offenders are not required to post any collateral for their release. There is no supervision to ensure that they show up in court on their hearing date. Worst of all, there is no incentive to prevent a criminal from committing another crime in the meantime.

If you have ever watched an episode of the popular television show ``Dog the Bounty Hunter,'' you know that this is not how the commercial bail system works. These professionals ensure that defendants show up for trial on the correct date, or they will physically bring the individual in question to the courthouse for their hearing.

On top of these issues, federally funded pretrial release programs are not required to report to the Department of Justice any information regarding an offender's past criminal history, utilization of the pretrial release program, failure to appear before a court, and any other relevant compliance data. A judge is essentially releasing potentially dangerous individuals back into the community with so little as a wink and a promise that they will appear in court.

We cannot allow this practice to continue. Mr. Speaker, our constituents deserve to know whether their tax dollars are being spent responsibly.

Judge Poe's bill, the Citizens' Right to Know Act, will address these significant concerns by ensuring that the Department of Justice and Congress have the information we need to determine whether these programs that receive millions of dollars from the Federal Government are operating effectively.

The legislation requires the Attorney General to submit a report to Congress annually that includes information regarding each defendant participating in a pretrial release program. The report will include the individual's name, each occasion the individual failed to appear for court, and the individual's previous arrest record.

Additionally, this proposal ensures that local jurisdictions will submit required data to the Department of Justice by establishing that any failure to produce this report will result in forfeiture of a portion of the jurisdiction's Federal grant funds for the following year.

Mr. Speaker, this bill is a good government solution that will provide much-needed oversight for pretrial services programs and give communities an incentive to ensure we are not allowing violent repeat offenders back on the streets without the correct level of supervision.

Finally, this important legislation will also ensure that the millions of taxpayer dollars we spend annually on those programs are being utilized in the best way possible.

We owe it to our constituents to make sure that we know how their hard-earned money is being spent. It is about time that we brought a little sunlight to these programs that allow potentially violent offenders to go free in our communities.

Mr. Speaker, the Judiciary Committee also moved an important piece of legislation that will bring parity to the merger and acquisition process no matter which Federal agency takes charge of the antitrust review process.

Currently, both the Federal Trade Commission and Antitrust Division of the Department of Justice have authority to enforce section 7 of the Clayton Act, which prohibits mergers and acquisitions that could undermine competition in the marketplace or create a monopoly. Both agencies receive notice of proposed mergers and are given an opportunity to review the transaction, while only one agency ends up taking custody of the transaction.

However, the FTC and DOJ maintain different standards when seeking a preliminary injunction against a proposed merger. This disparity manifests itself in multiple ways. However, one main difference is that the DOJ will often seek both a preliminary and permanent injunction before a district court, while the FTC has fought against this consolidation of injunctions. That means that two separate Federal agencies with two different legal standards oversee the merger process without any clear guidance determining which agency and standard will be used to examine the transaction.

Mr. Speaker, we cannot continue fostering this double standard surrounding merger and acquisition review. Businesses need certainty before attempting to enter into major transactions, and Federal regulatory bodies must be as transparent as possible when making decisions that can create major ripples in the country's economy.

Representative Handel's bill, the SMARTER Act, gives businesses certainty about how their merger will be reviewed before entering into a major deal. This important piece of legislation harmonizes the Federal antitrust review process by ensuring mergers and acquisitions will be treated identically no matter what Federal regulatory agency reviews the transaction. This bill will treat businesses in a way that will encourage continued economic growth, build market stability, and ensure the review process will be the same no matter which Federal agency reviews the transaction.

Mr. Speaker, while we are debating the topic of financial stability and economic growth, we are also here to discuss an important piece of legislation the Senate recently passed and we will consider on the House floor this week.

The House will debate S.J. Res. 57, Senator Moran's legislation that offers a resolution of disapproval under the Congressional Review Act that would overturn the CFPB's onerous regulation of the indirect auto lending industry. In fact, despite being expressly prohibited from overseeing auto dealers in the Dodd-Frank financial reform law, the CFPB promulgated and issued guidance regulating the indirect auto lending industry.

To make matters worse, the CFPB tried to disguise this harmful regulation by issuing it in the form of a guidance document, which does not need to go through the typical notice and comment process. This arduous regulatory scheme sought to disrupt third-party lending, especially from small community banks and credit unions in the auto loan market. The CFPB did so by issuing guidance stating that, in order to avoid liability under the Equal Credit Opportunity Act, institutions with indirect lending relationships with auto dealers must either place controls on dealer compensation or forbid dealers from offering a marked-up rate on loans.

The CFPB overstepped its statutory authority once again in what the agency described as an attempt to reduce discrimination in the marketplace. However, as Chairman Hensarling testified before the Rules Committee yesterday, the House sent 13 letters to the CFPB questioning the rationale for the rule and science the agency used to determine that there was discrimination occurring in the marketplace. Not surprisingly, the CFPB could not point to sound science that led to this decision. In fact, new evidence shows that the CFPB's expected outcomes could be off by as much as 20 percent.

To make matters worse, Chairman Hensarling also testified that this rule is expected to increase the per person cost of purchasing an automobile by $586 per loan. I know that in eastern Colorado, $586 makes a big difference. That is the difference between being able to put money aside for taking a family vacation or making much-needed home repairs.

This guidance has only resulted in removing options from consumers, reducing the ability to find affordable auto financing, and setting a dangerous precedent in how to dance around Federal rulemaking processes.

Mr. Speaker, it is time that this Congress takes steps to rein in the CFPB's unaccountable, overbroad regulatory powers. One agency should not have the ability to significantly curtail an entire facet of the lending market. Additionally, no agency should be able to skirt formal rulemaking procedures when issuing guidance of this magnitude.

The CFPB's indirect auto lending rules create an unworkable situation where an independent agency, manned by unaccountable bureaucrats, flagrantly ignored Federal statute to do what it thinks is best for the American people. Instead of benefiting the American people, though, this guidance

threatens to raise the cost of credit, cut back opportunity for indirect lending, and has created disincentives for financial companies to provide customers with discounted auto loans.

Congress must take this opportunity to overturn a detrimental guidance that is not only circumventing the rule of law by disguising new regulations in an effort to draw less scrutiny, but is also raising rates and providing fewer choices for consumers.

This resolution of disapproval will accomplish all of these goals. The legislation, which recently passed in the Senate 51-47, will utilize the Congressional Review Act process to overturn the CFPB's guidance while also sending a clear message that agencies should not be circumventing congressional oversight.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentleman from New York (Mr. Zeldin).

Mr. Speaker, I yield myself such time as I may consume.

We have before us a rule that makes three pieces of legislation in order: a bill that increases transparency for pretrial release programs, legislation that streamlines the review process for mergers and acquisitions, and a resolution of disapproval for the CFPB's harmful indirect auto lending rule.

The Federal Government's greatest responsibility to its citizens is to secure their safety and security. Congress has a duty to recognize when there is a security problem that is putting people in jeopardy, especially when it is a Federal pretrial release program that is putting potentially violent offenders onto the streets without any supervision. The American people deserve to know that their hard-earned tax dollars are being spent in the most responsible way possible. We cannot continue pushing millions of dollars into broken programs that release dangerous individuals back on the street.

Additionally, Congress has a statutory duty to ensure that businesses are not pursuing anticompetitive mergers and acquisitions. However, that does not mean that we should continue fostering the current climate that features the DOJ and FTC maintaining two distinctly different processes for reviewing these transactions. We have the unique opportunity to create certainty for businesses while harmonizing the review process with the SMARTER Act.

Finally, the House must take advantage of this opportunity to rein in the CFPB utilizing the Congressional Review Act's power to overturn harmful regulations on the indirect auto lending industry. Not only will this resolution of disapproval end a detrimental piece of guidance, but it will also send a strong message to regulatory agencies that they cannot overstep their statutory boundaries and will not get away with attempting to cloak major regulatory actions merely as guidance documents.

I urge support of the rule and the underlying legislation.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in opposition to H.R. 5645, the Standard Merger and Acquisition Reviews Through Equal Rules Act. This bill would significantly undermine the Federal Trade Commission's ability to enforce the Nation's antitrust laws, which help protect Americans from anticompetitive behavior in the marketplace. In the guise of harmonization with the Department of Justice, it would eliminate the FTC's administrative litigation enforcement authority with respect to corporate mergers and other transactions. It would also change and potentially increase the burden the FTC must demonstrate in court when seeking a preliminary injunction against the proposed merger.

In doing so, the bill would undercut a critical tool that the FTC relies on to promote competition. It also risks sacrificing the fundamental nature of the FTC as an independent administrative agency, rather than an executive department, subject to the political whims of the President. This blatant attack on the FTC's congressionally mandated independence contravenes more than a century of legislative intent.

In 1914, Congress responded to a wave of mergers and corporate abuses by establishing the FTC as an independent body of experts tasked with developing and advancing competition policy free from political pressure. In doing so, Congress specifically gave the Commission broad enforcement and investigatory authorities, including the power to challenge anticompetitive mergers and other conduct through administrative litigation.

This broad grant of statutory authority was not accidental. Louis Brandeis, a visionary architect of our Nation's competition system, advocated for the embrace of administrative litigation during Congress' consideration of the FTC Act, and President Woodrow Wilson said such authority was critical to the FTC's mission ``to warn where things were going wrong and assist instead of check.''

As former Republican FTC Chairman William Kovacic warned: ``Without a substantial, effective administrative litigation program, the aim of making the Commission an influential competition policy tribunal could not be accomplished.''

Nevertheless, this bill would eliminate this critical tool for promoting competition and, in the process, would erode the Commission's unique qualities and independence.

To further undermine the Commission's independence, the bill would also require the FTC to meet the same standard in court that the Justice Department meets when seeking a preliminary injunction against the proposed merger. But the FTC and the DOJ are two different agencies with different missions and different traditions.

Under current law, the Commission, by statute, must show that a preliminary injunction ``would be in the public interest.'' The Justice Department, on the other hand, has no statutory standard and must simply meet the common law preliminary injunction standard, such as the balance of equities and the risk of irreparable harm.

As our Nation's leading antitrust enforcers have previously testified, there is no practical difference between the standards or evidence that the Commission has abused its authority. So it is entirely unclear what problem the bill is attempting to solve. But in making this change, this bill could cause unnecessary confusion for the courts or could signal a desire to increase the burden on the agency to demonstrate the harms of an anticompetitive merger. That result alone is unacceptable.

But even more fundamentally, this legislation is a step in the wrong direction for our economy and for the prosperity and security of all Americans. The decline of antitrust enforcement over the past several decades has been an economic catastrophe for millions of workers who have lost their jobs or seen their wages lowered. It has resulted in fewer choices and higher prices for consumers, including increased costs for healthcare, prescription drugs, and other essential goods and services.

The importance of robust antitrust enforcement is not simply a question of preventing higher prices for consumers. In the absence of competition, employers have the power to suppress the wages and mobility of American workers through anticompetitive contracting practices, such as noncompete clauses and no-poach agreements.

And when large corporations run amok, locally owned businesses, the economic lifeblood of our communities, wither on the vine. Concentrated economic power is also a serious threat to our vibrant democracy. Large corporations with an outsized role in the policymaking process are able to further entrench their dominance through favorable rules and enforcement decisions.

And when a large corporation with market power has the ability to control the flow of information, it also has the power to shape public opinion in ways that erode democratic values and undermine the voice of the many in favor of the outsized profits of the few.

By further weakening our antitrust laws, H.R. 5645 would accelerate this disturbing trend. Accordingly, I must oppose this legislation and urge my colleagues to vote against this very bad bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 6 minutes to the the gentleman from Rhode Island (Mr. Cicilline), the distinguished ranking member of the Regulatory Reform, Commercial and Antitrust Law Subcommittee.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the nonpartisan Open Markets Institute, in its opposition to H.R. 5645 states: ``Given the severity of the concentration problem in America today, and its economic and political consequences, Congress should be looking to enhance the powers of all of America's antimonopoly agencies.''

I strongly agree: Congress should be strengthening, not weakening, our competition system to protect economic opportunity, innovation, and choice. That is why I have joined several of my Democratic colleagues-- Representatives Joe Crowley, David Cicilline, and Keith Ellison--in introducing a package of bold economic measures to strengthen protections that will help ensure that hardworking Americans have more economic opportunity by ending anticompetitive employment practices.

This package includes H.R. 5642, the Restoring and Improving Merger Enforcement Act, legislation that I introduced to prohibit the consideration of false economic efficiencies--like corporate layoffs, actually costing employment--to justify anticompetitive mergers.

But rather than address these important measures, which would actually

help American workers and consumers, or give the antitrust agencies the resources they need to really promote competition, this bill would do the opposite by undermining the FTC's ability to vigorously enforce antitrust laws under the guise of attempting to solve a problem that does not exist.

I would submit that an economy in which we are down to four major airlines and two major railroads, and going in the same direction in almost every other segment of the economy, we should not be weakening our antitrust laws and our antitrust enforcement, we should be strengthening them. This bill goes in exactly the wrong direction and is guaranteed to further increase the concentration of economic power in our economy, and to further decrease the bargaining power that workers have to get decent wages and working conditions.

Mr. Speaker, this is a deeply anti-employee bill, it is a pro- monopoly bill, and it is a very anti-economic growth bill. I urge my colleagues to oppose this deeply flawed measure, and I yield back the balance of my time.

Mr. Speaker, I claim the time in opposition to the gentleman's amendment.

Mr. Speaker, I yield myself such time as I may consume.

This amendment makes several technical revisions to clarify that the bill does not apply to consummated mergers and other transactions. While this change marginally addresses one concern with the bill, it does nothing to change the most fundamental flaw with the bill, which is that it eliminates the Federal Trade Commission's administrative litigation authority in merger cases.

As we noted during consideration of this bill in the Judiciary Committee last year, and in prior Congresses, the SMARTER Act is overbroad as currently drafted and applies to both unconsummated and consummated transactions.

According to John Jacobson, a leading antitrust attorney, who served as commissioner of the Antitrust Modernization Commission, this bill could easily be ``construed as prohibiting a challenge to the consummation of any merger in administrative proceedings, even a post- merger challenge, notwithstanding the term `proposed.' ''

Technical feedback by senior staff at the FTC, under both Democratic and Republican administrations, confirmed this view.

While the amendment makes the useful clarification that H.R. 5645 would not apply to already consummated transactions, the bill would still eliminate the FTC's ability to use administrative litigation in proposed mergers, striking at the core of the Commission's independence and congressionally mandated design, without any evidence that such a change is warranted or desirable.

As Mr. Jacobson has also noted in his testimony in opposition to a similar

version of this legislation considered by the Senate, eliminating the ``FTC's ability to conduct administrative proceedings in pre- consummation merger challenges is harmful to the sound administration of the antitrust laws.''

At a time when there is an increasing desire across the ideological spectrum to strengthen antitrust enforcement in the face of extreme concentrations of corporate power in industry after industry, the SMARTER Act proposes to go in the opposite direction. Congress was wise to establish an independent agency in 1914 to ensure strong antitrust enforcement, and we would be wise today not to undermine that choice.

Mr. Speaker, this amendment essentially puts lipstick on a pig. It does not change my basic opposition to a bill that is fundamentally flawed in its conception. Therefore, I must oppose this amendment, and I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of the time.

Mr. Speaker, as a practical matter, the FTC only challenges a handful of proposed mergers, on average, per year. These transactions present some of the largest, most complex, and potentially most concerning issues. But in most of these cases, the parties either abandon the transaction or negotiate a settlement.

Nonetheless, in those few instances where the FTC does challenge a transaction, it is in a position to answer novel questions of law and, thereby, develop expertise and guidance for future applications. Indeed, that is the whole point of having an FTC, and that is the whole point of administrative adjudication authority.

As the Antitrust Institute has noted in its opposition to the SMARTER Act to this bill, ``the FTC's use of administrative powers should be carefully safeguarded, because it has contributed critically to the effective shaping of U.S. merger policy without detracting from the speed or effectiveness of merger review.''

In addition, Republican FTC Commissioner Maureen Ohlhausen's 2016 study on administrative litigation debunks the claim of procedural bias against merging parties. Her study found that the FTC's appellate success and case work ``do not support a narrative that the Commission blindly supports ill-conceived cases because of systemic bias. To the contrary, they show a recent history of solid, well-supported enforcement actions.''

Even where the FTC does not use administrative adjudication, the potential use of this tool is invaluable in the agency's ability to successfully get emerging parties to agree to structural remedies, such as divestitures, to address concerns with a proposed merger.

It is unthinkable to remove the FTC's administrative litigation authority, as this amendment would continue to do, when such authority is only used to protect against the most anticompetitive mergers that are certain to substantially lessen competition, harm consumers, raise prices, and hurt workers.

For these reasons, I urge my colleagues to oppose this amendment.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I thank the gentleman from Colorado (Mr. Buck) for yielding me the customary 30 minutes, and I yield myself such time as I may consume.

Mr. Speaker, last week, many of us spent our time in the district working, meeting with our constituents, seeing the good work that people are doing, and learning what issues people want us to take up when we return to voting.

I wish I were before you lauding the majority's leadership for finally taking up the most important and pressing work for our constituents, but, unfortunately, that is not the case. Instead, this rule brings three bills to the floor, three bills none of my constituents have been pleading for, three bills that don't require immediate action, bills that may not even see Senate consideration.

Last year, this majority set the record for the most closed rules in a session, and it seems that nothing has changed.

The first bill considered in this rule is H.R. 2152, the Citizens' Right to Know Act. While I understand the goal of this legislation, by attempting to improve the pretrial services programs to keep dangerous criminals off the streets, this bill fails to accomplish the real need to improve how our Nation's flawed bail systems operate. While this bill received a markup, it received no hearings and was reported out of the Judiciary Committee on a straight party-line vote. Surely, we can do better than this.

The second bill we are considering is H.R. 5645, the Standard Merger and Acquisition Reviews Through Equal Rules Act, or SMARTER Act. Quite simply, this bill aims to weaken the Federal Trade Commission's ability to carry out the agency's antitrust responsibilities.

Maybe things are different elsewhere in the country, but I have not had one constituent call my office complaining about the need to weaken the FTC's antitrust enforcement abilities. No. People in southern California are more concerned about good wages, finding affordable housing, and getting their children a good education. However, again, we will take up this legislation, which already died in the Senate last Congress. This legislation undermines the independence of the FTC and undercuts the congressional intent and purpose for the agency's creation.

There are far more important issues under the jurisdiction of the Judiciary Committee that we should be considering instead, including bipartisan gun safety measures and legislation to protect Dreamers. However, instead of considering these very important issues facing our Nation, we are debating a bill to make technical changes to antitrust laws that, if enacted, would only be used in exceedingly rare situations.

Finally, the third legislation included in this rule is S.J. Res. 57, a Congressional Review Act disapproval resolution of a CFPB rule relating to ``Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.'' Unlike the other two bills included in this rule, this joint resolution hasn't seen a single hearing or markup in the House.

If the majority is fine with bringing up legislation that has yet to have a hearing, why not bring up the Dream Act?

Two weeks ago, I spoke about some of the more important issues our constituents care about, and nothing about my time back home in California changed my beliefs of what we should be working on. In fact, over the past 2 weeks, we have seen even more Members sign on to Representative Denham's Queen of the Hill resolution. Three more Members of the majority now support an open process.

For those who may not understand what Queen of the Hill means, it is really quite simple: let the best idea win.

If Speaker Ryan allows us, Queen of the Hill would give all the competing immigration proposals in Congress a vote on the floor. All of us would have an opportunity to vote on the four most well-known proposals: the Dream Act, Chairman Goodlatte's bill, the USA Act, and any other bill the Speaker sees fit for a vote. This is how the House should work: an open process where we take up the most important issues of the day.

Mr. Speaker, I urge my colleagues to oppose the rule we have before us.

I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, my Republican friends like to claim that their tax scam bill they jammed through Congress last year, skewing all the benefits to the wealthy and rich corporations, is some sort of panacea that will eventually trickle down all of its benefits to American workers, curing all the ills in our economy. That tired idea hasn't worked before, and it isn't working now.

But don't take my word for it. Just ask the Republican Senator from Florida, Marco Rubio, who said in a recent interview: ``There is still a lot of thinking on the right that, if big corporations are happy, they're going to take the money they're saving and reinvest in American workers. In fact, they bought back shares; a few gave out bonuses; there's no evidence whatsoever that money's been massively poured back into the American worker.''

All this Republican majority seems intent on doing is bringing up bills that benefit large banks and big businesses. When are we going to do something for workers?

As we toil on rolling back the Wall Street regulations and cutting taxes for the richest corporations, the 21st century economy is changing. Mr. Speaker, over the next decade, approximately 45 percent of all jobs will be in middle-skill occupations, which require more than a high school diploma but less than a bachelor's degree. Registered apprenticeship programs are a vital element of training for these middle-skill occupations and helping individuals contribute to an effective workforce.

A highly skilled workforce is necessary to compete in today's global economy, but this Republican majority has given working Americans a raw deal instead of extending a helping hand. Luckily for my Republican colleagues, today we will give them an opportunity to vote on legislation that will actually benefit American workers and finally help them get a better deal.

Mr. Speaker, if we defeat the previous question, I will offer an amendment to the rule to bring up Representative Pocan's LEARNS Act, H.R. 2933, which would promote effective registered apprenticeships that would give students and workers the skills they need to find well- paying jobs.

Mr. Speaker, I ask unanimous consent to insert the text of my amendment in the Record, along with extraneous material, immediately prior to the vote on the previous question.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

As I mentioned, this rule includes three bills. One of those is H.R. 2152, the Citizens' Right to Know Act. The Citizens' Right to Know Act fails to address the real problems in our Nation's bail system and, instead, threatens to make things much, much worse.

I don't think many of us disagree with the need to assist our local governments in keeping dangerous criminals off the streets while respecting the rights of those who may be innocent of crimes and have yet to have had their day in court. This legislation makes things worse. It threatens Federal assistance and would encourage local governments to lean more on high bail demands.

Unlike many bipartisan proposals in Congress which seek to make real improvements to bail, this bill will likely result in more low-income individuals being kept in jail simply because they aren't one of the fortunate who can afford to pay bail. This is a real issue in southern California and why I have worked with my colleagues on legislation to implement ``ability-to-pay'' rules to bail demands. Your income shouldn't determine your freedom.

In our community, bail was so excessive that private companies found a way to get rich off people who couldn't afford to pay the high costs. We ended up with people stuck in permanent contracts, paying hundreds of dollars a month to companies that found ways to skirt the rules of bail bondsmen.

We support greater transparency in our criminal justice system; however, this bill falls short of that goal. Rather than shedding the light on our trial system, this bill undermines Americans' privacy rights and exposes defendants to vulnerability.

The American Civil Liberties Union, ACLU, has come out in strong opposition to this bill, citing privacy concerns due to the personally identifiable information that will be collected and publicly reported by the Federal Government.

Mr. Speaker, I include in the Record the text of the ACLU's position letter.

American Civil Liberties Union,

Washington, DC, March 7, 2018.

Re ACLU Opposes H.R. 2152, the Citizens' Right to Know Act of

2017.

Hon. Bob Goodlatte,

Chairman, Committee on the Judiciary,

Washington, DC.

Hon. Jerrold Nadler,

Ranking Member, Committee on the Judiciary,

Washington, DC.

Dear Chairman Goodlatte and Ranking Member Nadler: On

behalf of the American Civil Liberties Union (ACLU), we write

to express our opposition to H.R. 2152, the Citizens' Right

to Know Act of 2017,'' as the House Judiciary Committee

considers this bill. This legislation raises privacy concerns

for the ACLU given the personally identifiable data that is

to be collected and publicly reported by the federal

government. The bill also undermines efforts to eliminate or

reduce jurisdictions' reliance on money bail systems. We urge

the Committee to instead consider H.R. 1437, the ``No Money

Bail Act of 2017,'' and H.R. 4019, the bipartisan ``Pretrial

Integrity and Safety Act of 2017,'' two bills endorsed by the

Mr. Speaker, this bill fails to provide explicit privacy protections for the individuals whose personal information will be collected and subject to public release, and jurisdictions that fail to comply with these reporting requirements face the severe penalty of losing 100 percent of their DOJ pretrial services grant funding.

Not only does this bill fail to require consent from the defendants to publicly release information about their alleged crimes and their private information, but it also poses the very real threat of destroying their reputation. These individuals have not been convicted of a crime nor have they had their day in court, given their pretrial status.

These are the concerns that could have been raised if this legislation was given a full, robust debate through committee hearings.

I am disappointed that my amendment to this bill, which would have addressed one of the many abuses perpetrated by the money bail system, was not made in order. My amendment would have prohibited predatory companies from locking people into seemingly lifetime contracts of monthly fees.

We can do better. These are bipartisan issues. For this reason and many other concerns I have with the closed process we are operating under, I must oppose this bill.

Mr. Speaker, I urge my colleagues to oppose the previous question and the rule, and I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, pursuant to House Resolution 872, I call up the bill (H.R. 5645) to amend the Clayton Act and the Federal Trade Commission Act to provide that the Federal Trade Commission shall exercise authority with respect to mergers only under the Clayton Act and only in the same procedural manner as the Attorney General exercises such authority, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that the question of adopting the amendment to H.R. 5645 may be subject to postponement as though under clause 8 of rule XX.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on H.R. 5645.

Mr. Speaker, I yield myself such time as I may consume.

In 1914, Congress passed the Federal Trade Commission Act, marking the

beginning of a dual antitrust enforcement regime in the United States.

Because both Department of Justice and the Federal Trade Commission enforce our Nation's antitrust laws, companies may, and often do, have different experiences when interacting with one agency relative to the other. One area in which the disparity can be the most striking and troubling is in the merger review process.

When a company wishes to merge with or purchase another company, it must notify both antitrust enforcement agencies of the proposed transaction. The Department of Justice and the Federal Trade Commission then determine which agency will be responsible for reviewing the transaction. As there are no fixed rules for making this determination, it can appear that the decision is made on the basis of a flip of a coin.

There are two substantial differences that companies face based on the identity of the antitrust enforcement agency that reviews the companies' proposed transaction.

The first difference arises if the agency seeks to prevent the transaction by pursuing a preliminary injunction in Federal court. A different legal standard is applied to a preliminary injunction request based solely on the identity of the requesting antitrust enforcement agency.

The second difference lies in the process available to each antitrust enforcement agency to prevent a transaction from proceeding. The FTC may pursue administrative litigation against a proposed transaction, even after a court denies its preliminary injunction request. In contrast, DOJ cannot pursue administrative litigation.

There is no justification for these disparities in the merger review processes and standards. The bipartisan Antitrust Modernization Commission recommended that Congress remove these disparities, and the bill before us today, the Standard Merger and Acquisition Reviews Through Equal Rules Act, or the SMARTER Act, does just that. I applaud Representative Handel for introducing this important legislation that will enhance the transparency, predictability, and credibility of the antitrust merger review process.

By enacting the SMARTER Act into law, Congress will ensure that companies no longer will be subjected to fundamentally different processes and standards based on the flip of a coin. Notably, the legislation has garnered the support of former and current FTC commissioners, including former Chairman David Clanton, former Commissioner Josh Wright, and current Commissioner Maureen Ohlhausen.

The SMARTER Act is an important step toward assuring that our Nation's antitrust laws are enforced in a manner that is fair, consistent, and predictable.

Mr. Speaker, I urge my colleagues to vote in favor of this good government bill, and I reserve the balance of my time.

Mr. Speaker, I yield as much time as she may consume to the gentlewoman from Georgia (Mrs. Handel), the chief sponsor of the legislation.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, this is a good bill, I urge my colleagues to support it, and I yield back the balance of my time.

Mr. Speaker, I have an amendment at the desk.

Mr. Speaker, this amendment makes a series of useful technical and clarifying changes suggested by the Federal Trade Commission.

At the FTC's request, the amendment adds language stating explicitly that the agency retains independent litigating authority in merger cases brought under the Clayton Act. This makes clear that the FTC is not forced to rely on the Department of Justice in these cases.

The amendment also strikes language referring to the FTC's authority to issue civil investigative demands in merger cases. This is because the reference is unnecessary and could create a negative inference that the FTC does not enjoy such authority in other contexts.

The amendment makes further technical improvements in several places in the bill that refer to the FTC bringing an action under section 7 of the Clayton Act. The FTC's authority to bring an action in court actually derives from section 15 of the act, so the amendment updates that citation.

Furthermore, the amendment changes the phrase ``including'' FTC proceedings to ``or'' FTC proceedings in several places in the underlying bill. This is to underscore that FTC settlements are distinct from DOJ antitrust settlements and, thus, are not subject to the judicial review provisions of the Tunney Act.

The amendment also refines language in the underlying bill that ensures the same legal standards are applied to FTC and DOJ injunctions, and that preserves FTC authority to use administrative adjudication as part of a settlement agreement.

Specifically, the changes more clearly define the circumstances in which the FTC may seek an injunction and more clearly state that the FTC must proceed in Federal court, not administratively. The amended language also more accurately reflects the FTC's practices for administrative settlements, more clearly states that the district courts must apply the same standard in those cases as it would apply when the Department of Justice seeks injunctions, and more clearly provides that the new rules change only administrative adjudications, not investigative procedures.

Finally, the amendment clarifies that the FTC's duty to use the courts, rather than administrative procedures, to block anticompetitive behavior, extends only to the merger-type actions that this bill is intended to cover.

Again, these changes are of a technical nature and were all recommended by the FTC itself. Accordingly, I urge my colleagues to support this amendment.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I continue to reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

The arguments we have heard against this bill are without merit.

It has charged that the SMARTER Act would make it more difficult for the FTC to fulfill its consumer protection mandate. This is incorrect.

The FTC's consumer protection powers are completely independent from the antitrust laws. The SMARTER Act deals only with the antitrust piece, so, by its terms, does not impact the FTC's ability to prosecute ``unfair or deceptive acts or practices.''

As for harm to consumers from proposed mergers, the SMARTER Act does not, in any way, affect substantive antitrust law; it does not amend, in any form or fashion, section 7 of the Clayton Antitrust Act or any of the FTC's consumer protection powers.

Opponents also claim that the SMARTER Act removes an important tool from the FTC by eliminating its ability to pursue administrative litigation. This, too, is a red herring.

The SMARTER Act only removes the FTC's administrative litigation authority in the very narrow context of proposed transactions. A report from the bipartisan Antitrust Modernization Commission determined that any benefit from such authority was marginal and ``significantly outweighed by the costs.''

The FTC can still pursue administrative litigation in conduct cases and in actions against consummated mergers. Indeed, the AMC report stated specifically that: ``Elimination of administrative litigation in . . . merger''--review--``cases will not deprive the FTC of an important enforcement option.''

Opponents also charge that enacting the SMARTER Act will make it more difficult for the antitrust enforcement agencies to stop a merger, but the SMARTER Act only changes the process; it does not have any substantive impact on merger reviews.

But don't take my word for it. A letter from 15 leading antitrust professors states: ``The SMARTER Act does nothing to undermine the FTC's authority; it simply ensures that the merger review processes and standards are equally applied to merger parties regardless of which agency reviews the transaction.''

But perhaps the most ironic argument brought against the bill is that it is unnecessary because the FTC rarely initiates administrative litigation after a court denies a preliminary injunction request. Administrative adjudications may be rare, not because regulators use the powers sparingly, but because the mere prospect of this protracted, costly process may prompt companies to abandon the merger even though they prevailed in court. That hardly seems fair.

Parties to a merger should receive the same treatment and have the same process regardless of the reviewing antitrust agency, and the SMARTER Act accomplishes that goal.

This legislation will help America continue to serve as a leader and innovator in competition law, and I urge my colleagues to support it.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I claim the time in opposition to the motion.

Mr. Speaker, this motion is unnecessary because this bill does nothing to undermine substantive antitrust enforcement. It might even hold up mergers that the court already found procompetitive and could help lower drug prices.

This is simply a dilatory tactic used by my friends on the other side of the aisle to hold up this important legislation.

For decades, American antitrust laws have been a shining example of how to protect against anticompetitive activities in a consistent, predictable, and fair manner.

Other countries have looked to our laws as the template for the creation of their own competition laws. Let us continue to be a model of proper antitrust enforcement.

The SMARTER Act is a commonsense process reform that ensures fairness and parity in the narrow field of merger reviews. The bill was recommended to Congress by a bipartisan commission and is supported by former top antitrust enforcement officials and past and present FTC Commissioners of both political parties.

Mr. Speaker, accordingly, I urge my colleagues to do the smart thing by opposing this bill and supporting the underlying bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise in opposition to H.R. 5645, the Standard Merger and Acquisition Reviews Through Equal Rules Act-- otherwise known as the SMARTER Act.

Mr. Speaker, this bill is not about creating equal rules or implementing ``smarter'' legislation.

Rather, it is about attacking the administrative authority of the Federal Trade Commission (FTC).

H.R. 5645 is an unnecessary measure that would fundamentally undermine the FTC's independent enforcement authority and ability to prevent anti-competitive mergers.

As we all know, the FTC was created by Congress with the specific intent of creating an independent antitrust enforcement agency and supplemental authority to the Department of Justice (DOJ).

Specifically, if enacted, the SMARTER Act would strip the FTC of its power by eliminating the agency's authority to enforce antitrust laws in larger merger cases, and by blocking its ability to use its administrative proceedings to stop a harmful merger transaction.

The bill seeks to do so by requiring that the FTC use the same enforcement process as the DOJ.

This proposed sweeping change undercuts the FTC's administrative litigation process for contested mergers or acquisitions and effectively removes the very core and functioning character of this agency.

Moreover, reducing the FTC's independence directly conflicts with Congress's intent in creating this antitrust enforcement agency and policymaking body as a distinct and independent shield from political and executive interference.

As enforcers of Section 7 of the Clayton Act, both the FTC and the DOJ have the authority and responsibility to prohibit mergers and acquisitions that would ``substantially lessen competition'' or ``tend to create a monopoly''.

Under this enforcement authority, these agencies serve to complement each other, and have developed over the years to specialize in particular industries and markets.

Based upon historical experience and coordinated developments, the FTC serves to protect consumers and consumer spending. For example, healthcare, pharmaceuticals, professional services, food, energy, and certain high-tech industries like computer technology and internet services.

Whereas, the DOJ typically assumes a specialized focus on larger corporate industries like telecommunications, banks, railroads, and airlines.

Thus, while the FTC and the DOJ have operated with a shared responsibility of enforcing federal antitrust laws, these two federal agencies are unique and each retain exclusive authority of certain conduct.

Serving as joint enforcement agencies for over 100 years, the FTC and DOJ rely upon each other to coordinate agency jurisdiction and harmonized standards and practices.

The SMARTER Act is simply unnecessary as it fails to put forth any meaningful effort to enhance or rectify any expressed concerns governing these longstanding agency operations.

In particular, in 2002 Congress sought to review and amend antitrust laws and policies in light of the changing economy and rise in technological advances.

In 2007 a report issued by the Antitrust Modernization Commission (AMC) set forth specific recommendations for the FTC to eliminate real or perceived disparities in the review process for merger transactions.

According to the AMC, Congress should seek to ensure that the same or comparable standard is used when seeking a preliminary injunction against a potentially anticompetitive transaction.

However, the SMARTER Act goes beyond this recommendation and seeks to chip away and carve out the entire administrative adjudication authority of the FTC.

In order to identify potential violations of the Clayton Act, the FTC and the DOJ review proposed merger transactions pursuant to the Hart- Scott-Rodino Antitrust Improvements Act (the HSR Act), which provides advance notice and sets forth guidelines on large merger and acquisition transactions.

The heart of this concern is the alternate means by which the FTC and DOJ carry out their enforcement roles during this HSR pre-merger process.

Namely, H.R. 5645 is curiously motivated by the preliminary injunction process utilized by the FTC and the DOJ to halt proposed transactions that would violate the Clayton Act if completed.

Additionally, the DOJ typically consolidates the preliminary and permanent injunction proceedings, while the FTC typically only pursues preliminary injunctions.

While some argue that proposed transactions reviewed through the FTC would be treated more leniently than those reviewed through the DOJ, this assertion has not been fully substantiated by the AMC.

The pre-merger review process and the injunction standards utilized by the FTC and DOJ are the very procedural steps that characterize and distinguish the respective enforcement roles of these agencies.

This supposed area of concern addresses only a small fraction of proposed transactions, as the vast majority of merger and acquisition proposals are found to not be in violation of the Clayton Act upon undergoing the review process.

The FTC and DOJ review over a thousand merger filings every year.

Yet 95 percent of those merger filings present no competitive issues or challenged transactions.

As reported by the American Antitrust Institute (AAI), the overall concerns purported by the bill's sponsors are simply without foundation.

In contrast, the overall work of the FTC has an incredible impact on American consumers, communities and corporations and will be severely impacted if disrupted.

As highlighted by the FTC Chairwoman Edith Ramirez in her testimony before the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law, the FTC prioritizes the protection of consumers and the prevention of anticompetitive market practices.

In fact, the FTC exists to ensure fair competition and to prevent enormous concentrations of economic power that hurts consumers and small businesses.

For example:

In the past year, the FTC has challenged over 28 mergers, (although in most it was able to negotiate a remedy to allow the merger to proceed).

At the consumer level in my home state of Texas, the FTC secured an $82,000 settlement against an auto-dealer found in violation of the Fair Credit Reporting Act in September 2017.

Also last year, the FTC ordered the largest divestiture ever in a supermarket merger, requiring Albertsons and Safeway to sell 168 supermarkets in 130 local markets throughout several states, ensuring that communities continue to benefit from competition among their local supermarkets.

The FTC has also taken an aggressive stance on stopping anticompetitive mergers and conduct in the healthcare market by halting such practices through administrative litigation.

In September 2017, the FTC secured a $1.1 million settlement to consumers who lost money to a health insurance telemarketing scam.

And in the last two years, the FTC took action in 13 pharmaceutical mergers, ordering divestitures to preserve competition for drugs that treat diabetes, hypertension, and cancer, as well as widely used generic medications like oral contraceptives and antibiotics.

Last year, on March 18, 2016, after a thoroughly vetted investigation, the FTC approved a final order preserving competition among outpatient dialysis clinics in Laredo, Texas.

That is, the FTC cleared U.S. Renal Care, Inc.'s (the country's third largest outpatient dialysis provider) $640 million purchase of dialysis competitor DSI Renal, on the condition that three of DSI's outpatient clinics in Laredo, Texas be handed over to a third party.

Absent this agreed divestiture, the acquisition would have led to a significant increase in market concentration and anti-competitive effects.

The likely result, according to the FTC, would have included the elimination of direct competition between U.S. Renal Care and DSI Renal, reduced incentives to improve services

or quality for dialysis patients, and increased ability for the merged company to unilaterally increase prices.

Notably, the DOJ has also been successful in securing investigations and halting suspected harmful merger practices on a much larger scale (in the health care and airline industry as of late).

In June 2016, the DOJ put pressure on several multibillion dollar health insurers seeking to engage in large merger transactions with near certain suppression of market competition in the healthcare industry.

In August 2016, the DOJ issued civil investigative demands on several major US airlines seeking to halt any potential unlawful mergers.

These cases demonstrate the need for continued protection of the FTC and its ability to effectively carry out injunctions on harmful merger and acquisition activities, as well as, anticompetitive business conduct that harms consumers and restrains market activity.

The ability of the FTC to function independently is necessary to the success of both the FTC and DOJ.

The far-reaching and elusive SMARTER Act fails to keep the foundational integrity of these agencies and should be opposed.

I urge my colleagues to vote against this serious threat to our fundamental protections of consumers and fair economic competition.