Standard Merger And Acquisition Reviews Through Equal Rules Act Of 2018
Mr. Speaker, I thank the gentleman from New York for yielding. Mr. Speaker, I rise in strong opposition to H.R. 5645, the so-called SMARTER Act, an assault on the Federal Trade Commission's ability to vigorously promote competition through…
Mr. Speaker, I thank the gentleman from New York for yielding.
Mr. Speaker, I rise in strong opposition to H.R. 5645, the so-called SMARTER Act, an assault on the Federal Trade Commission's ability to vigorously promote competition through merger enforcement.
Over a century ago, Congress responded to waves of consolidation by creating the Federal Trade Commission to promote, development, and protect competition and the antitrust laws.
There is longstanding, bipartisan consensus that the Commission's use of administrative litigation to address anticompetitive mergers and conduct is core to this mission. This includes the former Republican and Democratic chairs of the Commission under George W. Bush and the Obama administrations, who have each raised serious concerns about this legislation, precisely because it eliminates a tool that has been critical in combating anti-competitive mergers and conduct, including mergers that would have raised Americans' cost of healthcare.
Top Republican antitrust enforcers have long supported the use of administrative litigation in merger enforcement to promote competition and develop the antitrust laws.
In 2003, Joseph Simons, who was appointed by President Trump and recently confirmed as the chairman of the Commission, stated as director of the FTC's Bureau of Competition that administrative litigation has ``substantial public policy benefits.'' He also referred to this tool as ``an instrument for developing the law'' that ``increases the transparency of Commission decisionmaking through carefully written opinions that accompany a Commission final litigated order can give considerable guidance to the bar and the business community on applicable standards and enforcement policy.''
And in 2004, Barry Nigro, who also served as a director of the FTC's Bureau of Competition under the George W. Bush administration, and was appointed by President Trump to serve in the Justice Department's Antitrust Division, stated that the ``volume of administrative litigation is no accident. It reflects our belief in administrative litigation as a way to take advantage of the FTC's expertise in the development of antitrust jurisprudence, particularly in the kind of complex matters that the FTC was created to address.''
Nevertheless, proponents of the SMARTER Act argue that the outcome of a transaction should not depend on a ``coin flip'' to determine which antitrust agency will review a transaction. But this claim is untethered from how antitrust enforcement actually works in the vast majority of cases. In fact, the determination of the moving party is determined by each agency's jurisdictional district, or areas committed by statute, and consistent with a well-developed body of case law, and not by a coin toss.
In the most comprehensive study of administrative litigation to date, Republican FTC Commissioner Maureen Ohlhausen debunked procedural concerns with administrative litigation as ``mostly anecdotal or theoretical,'' concluding it has been a transformative tool for advancing competition policy.
And last Congress, Jonathan Jacobson, a leading antitrust attorney, who currently serves as the chair of the American Bar Association's section on antitrust law, testified that, in his decades of practice, he has never seen a merger that turned on the differences that the SMARTER Act seeks to address. In fact, less than 2 percent of all mergers are blocked by the antitrust agencies, and an even smaller percentage of these cases go to trial.
The FTC also has a pristine record when using this authority. It has won six out of seven cases before the Supreme Court, and five of these were brought through administrative litigation.
We should, therefore, be deeply skeptical about baseless speculation and support of the bill. Empty rhetoric is no substitute for evidence that the SMARTER Act actually solves a real problem.
But even more importantly, this bill is a major step in the wrong direction on making our economy work for everybody. There is overwhelming evidence that concentrated economic power is at historic levels in this country, and has structurally weakened competition on an economy-wide basis.
This lack of competition is a fundamental threat to the economic opportunity of hardworking Americans who want lower prices, more and better services, and better wages. We need more competition, not less.
As the nonpartisan Open Markets Institute notes, ``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.''
House and Senate Democrats have proposed a better deal to enhance competition to reduce lower prices and more choices for consumers.
Instead of undermining antitrust enforcement on the basis of purely speculative harms--as H.R. 5645 would do--we should be giving the antitrust agencies the resources and tools they need to robustly enforce the law.
In closing, I urge my colleagues to oppose this legislation, which does nothing to reduce concentrated economic power or address the economic challenges working people face every day and, in fact, will make the problem worse. It will make it easier to consolidate economic power in the way that undermines consumer choices, consumer costs, and will ultimately undermine hardworking American families.
Mr. Speaker, I urge my colleagues to vote ``no,'' and I thank the gentleman for yielding.