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Ranking Member Nadler Statement for the Subcommittee on Regulatory Reform, Commercial and Antitrust Law Hearing on “Oversight of the Antitrust Agencies”

Dec 12, 2018

Washington, D.C. – Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during a Subcommittee on Regulatory Reform, Commercial and Antitrust Law hearing on “Oversight of the Antitrust Agencies”:

“Thank you, Mr. Chairman, for convening today’s oversight hearing of the antitrust agencies and our competition system. This hearing occurs at a critical moment.  Over the past several decades, waves of anticompetitive consolidation in industry after industry—which has largely been the result of lax merger enforcement—have threatened the economic well-being and financial security of American families.  Whether through job losses and artificially low wages, or higher prices and lower quality for essential goods and services, this massive concentration of economic power has arguably even frayed our Nation’s social fabric.

“Unfortunately, this trend towards greater consolidation shows little sign of abating.  There has been $10 trillion in merger activity in recent years, with a record $2.5 trillion in mergers announced in the first half of 2018 alone.

“As Bill Baer, then-Assistant Attorney General of the Antitrust Division, testified in 2016, there has been an upswing in extremely large, complex, and blatantly anticompetitive transactions that “never should have made it out of the boardroom.”  Some recent Administrations have seemingly welcomed this development, but even those with a genuine desire to restrain such threats to competition have been forced expend significant resources to challenge mega-mergers that have clear anticompetitive effects.  For too long, however, funding for enforcement has been flat, severely limiting the ability of regulators to bring enforcement proceedings.  At the same time, courts are requiring immensely demanding evidentiary showings to prove the obvious, further opening the floodgates to anticompetitive mergers.

“As a result of this increasing concentration of economic power, American consumers pay more for essential goods and services—such as food, clothing, healthcare, and prescription drugs—while corporations earn persistently high profits that pay for astronomical executive salaries, rather than higher wages or better jobs for hardworking Americans.

“The decline in enforcement over the past several decades has also been an economic catastrophe for millions of workers.  Some have lost their jobs due to the supposed “efficiencies” of anticompetitive mergers, and many face lower wages and less opportunity due to wage fixing or other anticompetitive conduct by employers, all of which has been enabled by regulators.

“While ultimately it is the responsibility of the antitrust enforcement agencies to enforce the law fully and properly, the House Judiciary Committee has an obligation to conduct meaningful oversight to ensure such proper enforcement, to provide additional enforcement resources, and, when necessary, to consider changes to the antitrust laws.

“Dating back to Chairman Emanuel Celler’s establishment of the Subcommittee on the Study of Monopoly Power in 1949—which, I would add, was staffed by a young antitrust attorney from Chicago named John Paul Stevens, who would later serve with distinction as an Associate Justice of the U.S. Supreme Court—this Committee has conducted investigations into anticompetitive conduct by dominant firms, amended the antitrust laws to address the rising tide of economic concentration, and explored policies to promote competition in markets that are highly concentrated.

“But in recent decades, Congress has acquiesced to the erosion of the antitrust laws by pro-big-business Administrations and by federal court decisions that have made the antitrust laws more technical, and more narrowly focused on economic efficiencies for businesses, than on the broader economic and social policy goals that had previously animated antitrust law.

“Compounding Congress’s negligence have been its deliberate decisions to paralyze enforcers and regulators through meager appropriations and structural limitations on rulemaking.  I strongly believe that it is time to turn the page on this history of neglect, and I look forward to working with the agencies to ensure that competition is vibrant, and that working Americans enjoy the full benefits of open and fully competitive markets.

“Before closing, I also want to touch on a particular issue that is of bipartisan importance to the Committee and to Congress. This year, I worked with Chairman Goodlatte and my other colleagues on this Committee to enact the Music Modernization Act, a historic effort to address longstanding inequities in the music marketplace, and to ensure that songwriters and other music creators receive fair market value for their work.

“It is very important to me that this law—which was strongly supported by virtually all stakeholders—is not undermined by abrupt changes in enforcement policy with respect to the ASCAP and BMI consent decrees that may disrupt benefits to songwriters, copyright owners, music licensees, and consumers, particularly without an alternative framework in place.

“With that, I look forward to hearing from our esteemed witnesses today, and working together on these important matters going forward.”

115th Congress