Hirono, Colleagues Reintroduce Bill to Promote Competition and Improve Antitrust Enforcement

WASHINGTON, DC – U.S. Senator Mazie K. Hirono (D-HI) joined Senator Amy Klobuchar (D-MN) and 12 colleagues in reintroducing legislation to reinvigorate America’s antitrust laws and restore competition to American markets. The Competition and Antitrust Law Enforcement Reform Act would give federal enforcers the resources they need to do their jobs, strengthen prohibitions on anticompetitive conduct and mergers, and make additional reforms to improve enforcement.

“Highly concentrated markets mean that a handful of corporations dominate industries, effectively raising prices, reducing competition, and ultimately hurting consumers and workers alike,” said Senator Hirono. “It is critical that large corporations are held accountable in order to maintain a competitive market and this legislation will help to strengthen antitrust law enforcement and encourage healthier competition and fair choice.”

Many industries are consolidating as large mergers and acquisitions increase. Big companies are buying out upstart rivals before they can become a competitive threat. Harmful exclusionary practices by dominant companies—such as refusals to deal with rivals, restrictive contracting, and predatory pricing—suppress competition. U.S. antitrust law enforcement against powerful firms has lagged behind efforts in other developed countries, particularly when it comes to enforcement against the dominant digital platforms and other large corporations.

To address these longstanding issues, the Competition and Antitrust Law Enforcement Reform Act will:

1. Increase enforcement resources by authorizing increases to each agency’s annual budget and ensuring enforcers retain all fees generated from mergers for enforcement work;

2. Strengthen prohibitions against anticompetitive mergers by restoring the original intent of Section 7 of the Clayton Act, updating the legal standard for permissible mergers and shifting the burden to the merging parties to prove their merger will not violate the law.

3. Prevent harmful dominant firm conduct by creating a new provision under the Clayton Act to prohibit “exclusionary conduct” (conduct that materially disadvantages competitors or limits their opportunity to compete) that presents an “appreciable risk of harming competition;”

4. Establish a new FTC division to conduct market studies and merger retrospectives; and

5. Implement additional reforms to enhance antitrust enforcement by implementing a series of reforms to seek civil fines for antitrust violations, study the effect of past mergers, strengthen whistleblower protections, forbid forced arbitration in class action lawsuits, and more.

This legislation is endorsed by the American Antitrust Institute, Consumer Reports, Open Markets Institute, Public Knowledge, and COSAL. It is also endorsed by antitrust scholars including, Professor (emeritus) Jonathan Baker of American University Washington College of Law; Professor Nancy Rose of Massachusetts Institute of Technology; Professor (emeritus) Steven Salop of Georgetown University Law Center;  Professor Fiona Scott Morton of the Yale University School of Management; Bill Baer, former Assistant Attorney General for Antitrust; Gene Kimmelman, former Deputy Assistant Attorney General for Antitrust; Professor John Newman Professor of Law, University of Miami and former Deputy Director of the FTC Bureau of Competition; and Professor Martin Gaynor and former Director of the FTC Bureau of Economics. 

In addition to Senators Hirono and Klobuchar, this legislation is cosponsored by Senators Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Peter Welch (D-VT), Michael Bennet (D-CO), Martin Heinrich (D-NM), Ed Markey (D-MA), Chris Murphy (D-CT), Tina Smith (D-MN), Brian Schatz (D-HI), Mark Warner (D-VA), and Ron Wyden (D-OR).

The full text of the legislation is available here.

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