Cloture Motion

Floor Speech

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Ms. KLOBUCHAR. Mr. President, I am here to talk about a provision in the appropriations bills that was unveiled just yesterday. I thank my colleagues for their work on these bills--it has been incredible--and the bipartisan effort in the Senate and the House. I know how tough these negotiations can be. There are so many good things in it that I am sure I will be talking about myself over the next few weeks.

But I want to focus on one thing that I hope we can still clarify and change. I don't think it was the outcome that people thought when they voted on the floor a little over a year ago on something. This sort of seemingly technical language that was included in this appropriations bill on our Antitrust Division of the Department of Justice basically upends the work that Senator Grassley and I have done--many others joining us--to update the merger fees after I think it is over 20 years. We worked very hard on this over a 5-year period and got buy-in from the Judiciary Committee. We worked with Senator Lee and had a combination amendment that got significant support in this body--well over 80 votes--that focused on Senator Lee's venue amendment that he and I had to make sure that cases in the tech arena stayed in the States, antitrust cases stayed in the States where they were brought; then, secondly, that we actually funded a division that has been underfunded by many measures with 300-plus less employees than they had in 1979. That is the Antitrust Division of the Justice Department.

It may not be the first thing on everyone's mind, but if you are someone wondering why does something cost so much or why don't I have a choice, you have got to look at the consolidation going on in this country. If you wonder why do I have to pay this much for a concert ticket, you might want to look at the fact that Ticketmaster has got a 90-percent monopoly on big events, an 80-percent monopoly on pro events--pro sports events--and a 70-percent monopoly on all events. So it is an issue that matters to people.

This Chamber, unfortunately--I see Senator Kennedy here who has worked with me diligently on a bill about the news organizations and the monopoly tech companies. We have many good ideas here, some of which--including the bill I have with Senator Kennedy--that have come through the Judiciary Committee, but we haven't been able to get the political support on both sides of the aisle to actually pass these bills. So that leaves us with one shiny light when it comes to consolidation, and that is the work that has been going on in bringing these cases.

For the tech cases, could I say, several of them were initiated during the Trump's Justice Department and have continued into the Biden administration's Justice Department. But to do that, to take on the biggest companies the world has ever known, to take on Google, with the 90 percent market share, you have to have resources. You can't have a Justice Department Antitrust Division that has, say, one-fourth or one- third of the staff of just one of these companies. That just isn't really going to work. And guess what. They know it.

That is why Senator Grassley and I put together this merger fee bill. Today, he and I are sending a letter to the Appropriations Committee leaders asking them to take out some of this language that actually upends the bill that we not only worked on but we passed in this Chamber. It wasn't one of those things tucked in the bill. We actually had to have an amendment vote in this Chamber. Over 80 of our colleagues voted on it, and now it is being implemented.

There is less money that they have to pay for smaller mergers--which a lot of smaller companies like--and bigger fees for mergers over $500 million. Let's just say for them it is a drop in the bucket; well, not for the Justice Department Antitrust Division. We have now seen about 46 million more dollars come in, and somehow, through the magical Appropriations Committee process, that money has now vanished.

I have faith that the people on the Appropriations Committee did not mean to upend an act of Congress and take the money away from the antitrust enforcers. So this is what I came here to talk about today.

Monopoly companies are starting to reign over our economic and family lives, particularly in the tech area. And, of course, we have passed no updated competition laws since the invention of the internet, while other countries, of course, have, other countries, including--as I see Senator Kennedy over there--in the area of news organizations.

Singapore just passed a law. Canada just passed a law. Australia has passed a law. Hundreds of millions of dollars are now being paid to actually pay for news content.

The provisions released this weekend are in direct contradiction to the work that was done in this Chamber. The bipartisan Merger Filing Fee Modernization Act passed less than 15 months ago. It passed in the Senate on an 88-to-8 vote, and then the bill passed the full Senate-- the other provisions included, unrelated to this--on a vote of 68 to 29. It was signed into law December 29, 2022.

The Congressional Budget Office found that this would generate about $1.4 billion in revenue over 5 years, split between the FTC and the Department of Justice. That is an average of a more than $140 million increase in fee collections per year for each Agency.

For fiscal year 2024, the CBO estimated that the Department of Justice Antitrust Division would earn $278 million under the bill--an increase of $88 million from a year prior. Yet the budget released this week appropriated only $233 million to the Antitrust Division. That is an estimated $45 million in fees that were diverted away from antitrust enforcers.

But that is not all. The appropriation reverses decades of precedent--25 years it said the overage of fees would go to the Antitrust Division. So if they generate the fees, then they get to have those fees to help hire the lawyers to take on the big companies. That is how it has always worked. One pen, and they changed it. We weren't able to see it ahead of time. We worked with them after some language came out in July. Unbeknownst to us, they just took the money and ran. They took the money, and they put it in other parts of the government budget. This appropriation, as I said, reverses how this has been done.

So let's just get this straight. Senator Grassley and I changed the law with 88 votes to get more money into that Division. Instead, going forward, they are not going to get any of the money. So it almost makes it ridiculous that we tried to help by passing the law, because if we hadn't done anything, then maybe no one would have noticed it, and then the Appropriations Committee wouldn't have taken the money.

When Congress acts to increase merger fees or makes a policy decision, I think the Appropriations Committee's job is then to follow that policy decision.

The CBO predicts an $88 million year-over-year increase in the fees, but enforcers at the DOJ only get to see $13 million of that increase, with no opportunity to collect more fees if merger and acquisition activity exceeds what appropriators predict.

On top of this, unlike in previous years, the budget fails to fund the Antitrust Division's non-fee-generating work, like criminal price- fixing and monopolization cases. Last year, appropriators gave the Antitrust Division $35 million to fund these efforts. This year, they gave zero. This may put the Antitrust Division in the untenable position of deciding whether to block an anti-competitive merger or sue an anti-competitive monopolist. They should have the resources to do both. They actually bring money into the government.

I understand the difficult choices that Appropriations Committee members face every year. There are always difficult tradeoffs in funding, especially when budgets are constrained. I have even been told that the reduction in the appropriations was driven by lower-than- expected fee collections in the first quarter, but this doesn't justify diverting fees away from the Antitrust Division if that purported shortfall is made up later in the year. As currently drafted, the Antitrust Division will not have the resources to do its job if merger activity increases later this year, as we have already observed during the second quarter.

This is not an appropriations decision; it is a policy against antitrust enforcement that undermines a bipartisan law. The clear intent of our legislation that received 88 votes out of 100 in the U.S. Senate--actual votes--was to provide antitrust enforcers with more resources. No one, when voting for this bill, believed the goal was to pay for anything but increased antitrust enforcement. It says it right in the preamble to the bill. The act's purpose is ``to promote antitrust enforcement and protect competition through adjusting premerger filing fees, and increasing enforcement resources.''

The administration said the law would support its critical mission to ``enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony.''

Senator Grassley said--and I am so pleased he joined me in an effort today--in a letter to say: Please, please clarify this. Maybe you didn't understand that it upended the law that we passed in this Chamber when you did it. You have a lot going on. You try to make compromises. I get it. You do all this stuff. But it is one thing to reduce someone's underlying budget, which happens from time to time; it is another to actually take the fees that we as a Chamber decided to go into a purpose and then decide that, well, we are just going to take away their merger fees that they have generated.

Grassley said this:

It's important that these government agencies have the resources needed to protect consumers and taxpayers. I'm proud to co-author this bipartisan bill, which will improve fairness in the fee schedules for proposed mergers and strengthen the ability of these agencies to challenge anticompetitive transactions.

Now is not the time to kneecap the ability to enforce our antitrust laws. Over 75 percent of U.S. industries have become more concentrated since the late 1990s. Since 2008, American firms have engaged in more than $10 trillion in acquisitions--that is ``trillion'' with a ``t''-- and the 5 most powerful tech companies have completed more than 700 acquisitions, combined, since 1987.

Some of those are great. Some of that is good. But we all know now, when you have Google with a market share of 90 percent in the search market and you have anti-competitive behavior where these companies are putting their own products at the top of the search engines and pushing down small businesses--which is why the National Federation of Independent Business has made one of their top priorities passing another bill that Senator Grassley and I have to put some rules of the road in place--you know we are seeing an issue. And we are not just seeing it in tech. We see it in everything from agriculture to ticketing, from cat food to caskets. This is why the administration put forward the Executive order. This is why we repeatedly see bipartisan support to do something about monopolies.

As Adam Smith, the godfather of capitalism, said--he didn't just talk about the ``invisible hand,'' someone who influenced our Founding Fathers. As he said, beware the unbridled power of monopolies.

Today, antitrust enforcers--the cops on the beat--are being asked to do more with way too little. Between 2008 and 2020, the economy grew twice as fast as antitrust appropriations increased. For example, in 2010, the Antitrust Division received $163 million. In 2020, the number had increased only $3 million. At the same time, merger filings increased 80 percent, with 3,152 reportable mergers in 2022 alone. Yet, as of the fall of 2022, the Antitrust Division, as I noted, had 352 fewer employees than it did in 1979.

Think about the power we see out there with these companies. Do we not, as Americans, want some even playing field for small businesses and some rules of the road? That is why some of my most conservative colleagues have joined me--and some of our liberal colleagues and some people who are in the middle--in saying we need rules of the road. But if we are not going to do that, at least let our antitrust enforcers do their job.

It is no wonder we have this competition problem. Our competition enforcers don't have enough resources to effectively take on multibillion-dollar, much less multitrillion-dollar, companies.

Monopolies are spending millions to hold on to their power. Last Congress, I got to see up close how hard big tech companies are willing to fight to maintain their dominance.

I love these products. I have an iPhone. I have a Fitbit. I look at the platforms all the time. I get it. But I also believe in competition. You can still have these strong companies and make sure we have competition in these areas.

After an unprecedented lobbying effort by the dominant platforms, critical antitrust bills did not get a vote on the Senate floor, including ones that had come through the Judiciary Committee. It was reported that tech-funded groups spent more than $120 million in advertising against these bills and $90 million on lobbying over an 18- month period. That is more than $200 million, really, on one bill, the bill that Senator Grassley and I have--not the merger fee bill, which was nearly unanimously supported until it was upended mysteriously this week, but on our other bill about self-preferencing.

While that one sector spent that much--that is one sector of our economy, $200 million on one bill--the appropriators just took $45 million in potential fees and hid them under a rock somewhere in the Federal Government. And in just 1 week last May, a single industry group spent $22 million on TV ads against the legislation I just mentioned--$22 million against one bill in 1 week on TV ads all over the country. That is more than four times the amount allocated to the Antitrust Division per week.

I remember scrolling through the news and seeing internet popup ads that displayed in Washington, DC, from industry groups. They would say things like: Senator Klobuchar could break Google Maps. The lawyers made them put in the ``could,'' but you could hardly read it. Senator Klobuchar could destroy FaceTime. Senator Klobuchar could break up Amazon Basics and take away Amazon Basics. They just put that ``could'' in the smallest font possible, but the lawyers made them do it because they knew it wasn't true. That is what we are up against.

Now, I know it is hard to get these bills done now, but I thought, well, at least the Antitrust Division has brought very significant actions involving Google's dominance with ads and other platforms. Those are big-deal things. And the FTC has brought a case that started during the Trump administration against Facebook. These cases are big deals if we want to do something about it because it doesn't look like we are going to get anything done here.

It takes time, it takes talent, and it takes money to even the playing field. For example, the DOJ's case seeking to break up Google's search monopoly started in 2020, and closing arguments won't be heard until May of this year. And that case only confronts one of the monopolies.

The Antitrust Division is trying these cases while simultaneously reviewing and challenging anti-competitive mergers.

Just Monday, JetBlue abandoned its merger with Spirit after the DOJ prevailed at trial. Anyone who travels knows you want to have choices. You want to be able to look at different air fees. I am looking at the pages. They know what I mean. You look, and you try to find the cheapest airfare you can find. Well, you are not going to be able to do that if there are no low-cost carriers and you aren't able to choose.

In the last 3 years, the Antitrust Division has also successfully protected consumers by investigating and challenging mergers between Penguin and Random House, Adobe and Figma, and Visa and Plaid, among many others. Recent reports indicate that the DOJ is wrapping up investigations that could lead to monopolization cases involving Apple, involving Live Nation and Ticketmaster.

While public information about these potential cases is obviously not out there--it shouldn't be--one thing we absolutely know is that litigating against these companies will take significant resources. That is what this is about. Will I agree with every case they bring? No. But I believe in the principle of competition, and I just believe also in the principle that when the Senate takes a vote on something and decides that we are going to actually put more resources into an Agency generated by merger fees that we have designated to go to that Agency, we mean it. A little group in a committee behind closed doors can't change that decision. They shouldn't be allowed to change that decision even if they don't like some of the cases that are brought.

The next time someone complains to you about a Taylor Swift ticket and how much it costs or a Bad Bunny ticket and wondering why things got screwed up and why it never got investigated the way they thought it should, I guess we will have to say: Well, there was this little group of a committee that made a decision, even though the whole Senate voted to put the funding into a Division of the Justice Department to be able to do its job. Then, over a few months, a group of us just decided: We don't really want to do that. We want to actually take that money and maybe help someone else.

I am sure it may be a good cause. We don't know where the money went.

But it is against and upends the intent of the U.S. Senate to do something that was woefully underfunded for years and decades. And Senator Grassley knows this. That is why he did the bill with me. That is why today we joined together in a letter to the appropriators asking them--this just can't abandon your intent. I just don't believe it was their intent to--when we actually passed a law to add funding through these merger fees, their intent can't have been to say: We are actually going to take away any upside for you; if you do more work and get more fees in, we are going to take away the upside that you always had for 25 years.

Yes, did they increase the budget by 8, 10 million, whatever it was? Yes. Yes, is it a hard budget year to make decisions? It is. But the point is, sometimes--like we did with semiconductor chips or we do with other things--that Congress makes a decision through the committee process--a long, tenuous process--that we are going to take one area of the government and actually not just put bandaids on, not just increase the budget a little bit, that we are going to do a game-changing thing.

That is what we did with the merger fee change. That is why Senator Grassley and I worked on it for so long and got it through the Judiciary Committee. We were tired of the 3 million, 4 million that would hire the lawyers and still be one-fourth the size of the legal department. We were tired of having 350 less employees in that division than they had in 1979.

We made a decision as a Senate to vote for that and do that. And I just don't think we should be upending that decision through an appropriations process.

I got involved in this a long time ago when I was in the private sector. I represented MCI. I did a lot of work in telecom. And I saw firsthand what happened when you actually got competition, when you actually took a part of monopoly. What happened? Long distance rates went way down. What happened? We had burgeoning cell phone industry.

But before that, it was like the cell phones were the size of a Gordon Gekko's phone in that movie ``Wall Street.'' They were like a brick.

Competition brought us that. Capitalism brought us that. But capitalism in America has always had the guardrails put around it, which is antitrust enforcement, as unsexy as it may sound.

It has made a difference in this country, and it is one of the reasons why we have this economy that can thrive, because we say at some point: Whoa, that is a monopoly, so we have to make sure there is some competition.

We can't do that here anymore. The Senate is not going to sit there and start deciding to break up this and break up that. Our antitrust enforcers do it. Our antitrust enforcers--maybe they don't break it up, but they say: Hey, you have to divest these areas of the country where you two companies that want to merge will become one and you will be the only game in town. That is not going to work for competition. It is incredibly complex.

So it isn't always a sympathetic case to make for having lawyers so they can take on the case against these companies, but it is a sympathetic case to make that we have too much consolidation, that we have to bring prices down, that you shouldn't have to pay all this money for concert tickets and all these hidden fees, that you shouldn't have to pay this much when there is so much consolidation in the grocery area and the like or in agriculture and things like that. That is what the antitrust division does.

I am hopeful. I see Senator Murray, who is such an incredible leader, here on the floor and hope we will be able to do something--a technical change to this bill--either this week, or we have another bill next week. So we can, at least, just bring back this part of the bill to the original intent of Congress.

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