Providing for Consideration of H.R. Standard Merger and Acquisition Reviews Through Equal Rules Act of and Providing for Proceedings During the Period From March Through April 2016

Floor Speech

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Mr. COLLINS of Georgia. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 653 and ask for its immediate consideration.

The Clerk read the resolution, as follows: H. Res. 653

Resolved, That upon adoption of this resolution it shall be in order to consider in the House the bill (H.R. 2745) 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. All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived. The previous question shall be considered as ordered on the bill and on any amendment thereto to final passage without intervening motion except: (1) one hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary; and (2) one motion to recommit.

Sec. 2. On any legislative day during the period from March 24, 2016, through April 11, 2016-- (a) the Journal of the proceedings of the previous day shall be considered as approved; and

(b) the Chair may at any time declare the House adjourned to meet at a date and time, within the limits of clause 4, section 5, article I of the Constitution, to be announced by the Chair in declaring the adjournment.

Sec. 3. The Speaker may appoint Members to perform the duties of the Chair for the duration of the period addressed by section 2 of this resolution as though under clause 8(a) of rule I.

Sec. 4. Each day during the period addressed by section 2 of this resolution shall not constitute a calendar day for purposes of section 7 of the War Powers Resolution (50 U.S.C. 1546).

Sec. 5. The Committee on Energy and Commerce may, at any time before 4 p.m. on Thursday, March 31, 2016, file a report to accompany H.R. 2666.

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Mr. COLLINS of Georgia. Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Colorado (Mr. Polis), 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
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Mr. COLLINS of Georgia. Mr. Speaker, I am pleased to bring this rule forward on behalf of the Rules Committee.

The rule provides for consideration of H.R. 2745, the Standard Merger and Acquisition Reviews Through Equal Rules Act of 2015, or the SMARTER Act.

The rule also provides 1 hour of debate equally divided and controlled by the chair and ranking member of the Judiciary Committee, and also provides a motion to recommit. I would like to point out that the Rules Committee put out a call for amendments, but none were submitted for consideration.

Yesterday the Rules Committee received testimony from the chairman and ranking member of the Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law. A subcommittee hearing was held on this legislation and it was marked up and reported by the Judiciary Committee. The bill went through regular order and enjoyed discussion at both the subcommittee and full committee level.

H.R. 2745 is supported by the U.S. Chamber of Commerce and the American Hospital Association because it is a matter of basic fairness and reducing uncertainty.

This legislation makes two key changes to the procedures by which the Federal Trade Commission litigates merger cases. First, it requires the FTC to satisfy the same standards that the DOJ must meet in order to obtain a preliminary injunction in Federal Court.

Second, it requires the FTC to litigate merits of contested merger cases in Federal Court under the Clayton Act--just as the DOJ does-- rather than before its own administrative tribunals.

Currently the FTC is authorized to obtain preliminary injunctive relief, whereas the DOJ must satisfy the generally applicable test for obtaining preliminary injunction in Federal Court if it wants to block a merger. Courts have sometimes held that there is a lower burden on the FTC to obtain an injunction than the DOJ would have to face under the traditional test.

Additionally, if the FTC loses a preliminary injunction in Federal Court, it is able to litigate the merits of the cases in an administrative proceeding ultimately adjudicated by its commissioners. However, the DOJ does not have this power.

The SMARTER Act addresses these disparities, as recommended by the Antitrust Modernization Commission.

Parties to a merger should not be subject to different treatment and standards based on the reviewing antitrust enforcement agency. Antitrust agencies are charged with reviewing transactions efficiently and fairly in order to ensure that competition is preserved. But current law leaves the impression that there is a divergence of procedure and that whether or not a merger can proceed depends on which agency reviews that particular transaction.

Importantly, this bill does not make it easier for mergers to be approved. H.R. 2745 does increase fairness and efficiency by ensuring that the antitrust enforcement agencies are not imposing unequal burdens on the merging parties.

I thank the full committee, Chairman Goodlatte, Chairman Marino, Congressman Farenthold, and their staff for their work bringing these important reforms today. Again, as we look forward, I would encourage all to support this rule and the underlying legislation as it will bring some streamlined modern efficiencies to this program as we go forward.

I think it is interesting. It does not help. As we come down here and debate--and this is a floor to do that, Mr. Speaker--let's just be very clear, this does not help companies merge. I am not sure why we are putting forth a statement that helps companies merge. It simply takes and it streamlines the process so that you are not having two divergent paths in which the scrutiny of a merger takes place.

If we want to at least be faithful to the bill, which is what this does, it does not make substantive changes to antitrust law. Rather, this legislation standardizes the process between the two antitrust enforcement agencies.

Look, I grew up in north Georgia, and there were a lot of times especially--I have had some small businesses, and I appreciate the gentleman from Colorado, but I bet there are many times in his businesses that the things that you do every day, it is like being a part of a family. It is doing chores, it is doing the work that needs to be done. It may not hit the front page of the paper, it may not be the glamorous piece that anybody would want to talk about. Those things are getting discussed and those things are moving forward. Maybe not at the pace that some would like to see, but we are moving forward with legislation.

The question is if a bill that simply streamlines and provides some efficiency that even this current Department of Justice assistant attorney general for the antitrust division stated, I don't think that there is a real practical difference in how courts assess the factual legal basis for enjoining a merger challenged by the FTC on the one hand or the Department on the other.

Basically, we are doing some of the administrative work that needs to be done to lay the groundwork so that we don't have divergent opinions, so that we don't have two processes out there. If that is not exciting enough, then I am sorry. There are a lot of things that we do that do affect business, that do affect the streamlining of government. There are a lot of things that I would like to see us work on and that we are continuing to work on.

On this issue of ``will the Senate take it up or not?'' I, frankly, Mr. Speaker, don't care. If they don't want to do their job, that is their problem. If they have other agendas, then that is their problem. That is why there are two separate bodies on the Hill--there is the House, and then there is the Senate. We must work in tandem when we can, but we also must work with our own individual agendas to move forward what, in our perspective, is a conservative agenda for this country.

The other thing that is very concerning is--and there are a lot of issues here, and I appreciate the gentleman's speaking, Mr. Speaker, about where ideas come from. I am very concerned--and I know the Speaker is as well--about where ideas and processes come from for bills here. The best place, as the gentleman stated, is from back home--being with members and being with constituents and being with the businesses and being with the school groups and being with the folks in the places which we come from. I am born and raised in my district. As is the old saying, good Lord willing, by August, it will have been 50 years I will have lived in my district. I know my district and have gotten to know their concerns.

Do I believe there are a lot of things we can do up here? Yes, but I get to go home to my district, and I get to listen to people. I will be happy to read my schedule for the next few weeks while I am in the district, and if that sounds like a vacation to you, maybe we will have a different opinion on what a vacation looks like, because I am going to be going to businesses which, over the past few years, have been hurt by a healthcare policy that was put in place, and they don't know if they can hire new members. They have had to downsize--they have had to stop progress--and they are just being, all the time, encircled with regulations that keep them from hiring and from providing good jobs in the Ninth District of Georgia.

I don't know about what others do on their time back in their districts. I go to talk to school groups who ask the question: What do their futures look like with an ever-increasing pile of debt? They look at their futures, and they ask: What is this country? They look at the future around the world when they see attacks, such as this morning in Brussels, and they ask where their place is in the world. What is America's role? These are the kinds of things that are discussed on my time when I am in the district.

I believe we could work up here every day, and I will be supportive of that; but when I go back home to the district, when it is scheduled for us as Members to go home, then, frankly, maybe there is just a definitional difference in vacations. For me, it is to go home and listen and to be a part and to, yes, spend some time with my family. At the same point in time, every day, I get up and go out and talk to the district, and I talk to these people who have issues with Washington, D.C.: with their tax burdens, with their regulatory burdens, with their healthcare burdens, and with all of these supposed fixes.

Many times, like I said, I believe the Republican majority, in the last 5 years, has had to undo and fix the problems that were so forcefully allocated. We have got a banking system in our district that is still having trouble with banks being able to make loans, banks being able to do the things that they are supposed to be doing to help our business community, because they are strangled with regulatory burden.

You see, these are the issues that we can discuss here, and I appreciate the argument. Also, as we go back to the bill before us, sometimes it may not make the front page of whatever you read, but when you have two agencies that do, basically, a similar function in the merger arena and when they do it differently--and even the current Department of Justice and the chairwoman for the mergers and acquisitions were looking at this and were saying that this just needs to be better--this bill is a positive step forward. As we move forward to the debate that will happen this afternoon, I look forward to the debate of the committee as it discusses the ins and outs of this bill.

Before we go any further, I think we just need to be honest with the American people and say that these are ideas that are worth having and that also, when we are back in the districts, their ideas are worth having, because that is where the best ideas come from. That is where our homes are, and that is who we represent up here. It is never a burden to go home. Many times, it is a burden to come up here and fight against values that you have in your district that are not valued on the other side of the aisle. That is the burden that we will continue to fight. We will continue to stand as a conservative bearer on this side to say that this is a government that needs to work for the people and not at the people. That is the biggest difference that you will see on this floor today.

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Mr. COLLINS of Georgia. It is the majority leader's prerogative, as the gentleman from Colorado is well aware.

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Mr. COLLINS of Georgia. After the final votes are cast tomorrow, it is the majority leader's prerogative, as the gentleman from Colorado is well aware.

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Mr. COLLINS of Georgia. Mr. Speaker, I have no more speakers. I am interested in whether the gentleman from Colorado has any more speakers or if he is ready to close.

I always try to be positive. There is one thing I do agree on with my friend from Colorado just now, and that is that we can do better.

We can do better about explaining what is actually going on here and talking about it in derisive terms, especially about a bill in which there was--I serve on the Judiciary Committee--there was one amendment brought to committee. This bill seems to be fairly tight because there seems to be general agreement here.

There was one committee amendment brought to the committee, and it was withdrawn. Then there was an amendment process put out.

It is interesting that, from this Antitrust Modernization Commission, there were 78 other ideas. And then, when my friend just spoke about the fact that, if we had an open rule on the floor, they might bring up 78.

I would just ask him where was he yesterday. We have talked about showing up for work. Maybe he didn't punch in last night. He could have brought 78 amendments last night to the Rules Committee. He chose not to.

So we can do better. We can honestly discuss the procedures and the fact that right now, while he and I are on the floor discussing this rule and preparing for this rule, the rest of the 433 Members of the House of Representatives--432 now--I think we still have one open seat--are in committees right now.

They are meeting constituents. They are marking up bills. They are going through regular order, which is the Republican Congress' way of doing the people's business.

Also, as we have already discussed, whether the Senate signs something or not--then he brought up the fact that the President would never sign this piece of legislation.

Well, let's just remind the people what the administration doesn't also sign. They won't also sign the Keystone Pipeline, which takes away jobs from Americans.

He won't also sign a refugee bill that actually would just put an extra measure of protection for protecting the American homeland from possibly infiltration through the refugee program. They refuse to sign that.

Yet, we will have the results of the world looking at that. He won't sign that, Mr. Speaker. The administration doesn't seem to want to hold Iran accountable for the testing that it is doing with its missiles.

So we can discuss what this administration doesn't want to sign. I think using that as an excuse not to move a bill is an abdication of responsibility.

So as we look forward, again, I have never thought anything that I do up here, especially when it comes to my office or in committee work, was not working.

I think, frankly, it is sort of disrespectful to the folks who come to our offices and meet with us or the committee work that we do to say that the only ``work'' is here before the cameras making speeches. If that is what work is about up here, maybe we have just found the problem with this Congress.

So, Mr. Speaker, parties to a merger should expect and receive the same treatment and processes, regardless of the reviewing antitrust enforcement agencies.

These parties should not be subject to attempts to extract concessions or threat of administrative litigation by the FDC simply because that is the agency reviewing the merger.

The underlying bill preserves key standards of review while removing disparities. For that reason, I urge my colleagues to support this rule and H.R. 2745.

The material previously referred to by Mr. Polis is as follows:

An Amendment to H. Res. 653 Offered by Mr. Polis of Colorado

At the end of the resolution, add the following new section:

Sec. 6. It shall not be in order to consider a motion that the House adjourn on the legislative day of March 23, 2016, unless the House has adopted a concurrent resolution establishing the budget for the United States government for fiscal year 2017. The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous question on a special rule, is not merely a procedural vote. A vote against ordering the previous question is a vote against the Republican majority agenda and a vote to allow the Democratic minority to offer an alternative plan. It is a vote about what the House should be debating.

Mr. Clarence Cannon's Precedents of the House of Representatives (VI, 308-311), describes the vote on the previous question on the rule as ``a motion to direct or control the consideration of the subject before the House being made by the Member in charge.'' To defeat the previous question is to give the opposition a chance to decide the subject before the House. Cannon cites the Speaker's ruling of January 13, 1920, to the effect that ``the refusal of the House to sustain the demand for the previous question passes the control of the resolution to the opposition'' in order to offer an amendment. On March 15, 1909, a member of the majority party offered a rule resolution. The House defeated the previous question and a member of the opposition rose to a parliamentary inquiry, asking who was entitled to recognition. Speaker Joseph G. Cannon (R-Illinois) said: ``The previous question having been refused, the gentleman from New York, Mr. Fitzgerald, who had asked the gentleman to yield to him for an amendment, is entitled to the first recognition.''

The Republican majority may say ``the vote on the previous question is simply a vote on whether to proceed to an immediate vote on adopting the resolution . . . [and] has no substantive legislative or policy implications whatsoever.'' But that is not what they have always said. Listen to the Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: ``Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule. . . . When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

In Deschler's Procedure in the U.S. It is one of the only available tools for those who oppose the Republican majority's agenda and allows those with alternative views the opportunity to offer an alternative plan.
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