Freedom Line Blog

As we at CFIF regularly highlight, among the best ways to boost the American economy is via federal deregulation, which brought us the strongest economy in world history under President Trump.

For that reason CFIF enthusiastically applauds a bill sponsored by Senators Mike Lee (R – Utah), Thom Tillis (R– NOrth Carolina) and Charles Grassley (R – Iowa) entitled the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act.  Currently, differing antitrust review standards applied by the Department of Justice (DOJ) and the Federal Trade Commission (FTC) create confusion throughout our business and financial sectors, unnecessarily restraining U.S. economic prosperity.  The SMARTER Act changes that by harmonizing that process:

‘The Federal Trade Commission and the Department of Justice unnecessarily apply different procedures and standards for reviewing proposed mergers,’ said Senator Tillis.  ‘This commonsense legislation will streamline the enforcement of our federal antitrust laws by creating a system of consistency that will benefit consumers and businesses.’

The Department of Justice and the Federal Trade Commission share concurrent jurisdiction to review proposed mergers for compliance with the antitrust laws but it is not always clear in advance which agency will review a particular merger.  Although the two antitrust agencies apply the same substantive law to the mergers they review, their procedures differ in important ways.

The SMARTER Act fixes this problem by requiring the Commission to satisfy the same standards that DOJ must meet in order to obtain a preliminary injunction to block a merger and requiring the Commission to litigate the merits of contested merger cases in federal court under the Clayton Act — just as DOJ does — rather than before its own administrative tribunals.

Separately, certain mergers also require approval of the Federal Communications Commission.  However, the Federal Communications Commission’s merger review procedures create an open-ended process that fuels uncertainty and is potentially insulated from judicial review.  This invites regulatory mischief from both sides of the aisle that only leads to an imbalance in the implementation of regulatory policy.  The current process results in an inconsistent merger review process that not only harms the businesses seeking to complete a transaction in a timely manner, but it also hurts workers and consumers alike.  The SMARTER Act fixes this problem by requiring the Commission to issue a decision within 180 days of receiving a completed merger application.  The merger review process should not invite Congress or a regulatory agency to put a thumb on the scale of a particular transaction, but instead it should enable a fair and timely system that affords due process.”

As our economy continues to emerge from the coronavirus pandemic, legislation of this sort is precisely what we need to reover and surpass the old mark.  CFIF applauds Senators Lee, Tillis and Grassley for their leadership.

The Center for Individual Freedom applauds Senator Mike Lee on the introduction of the SMARTER Act of 2018.  Among other improvements, this bill includes key reforms to the flawed Federal Communications Commission’s (FCC’s) merger review process, including:  1) establishing a reasonable time limit for agency review to ensure fairer, more transparent and timely decisions, and 2) ending the ability to effectively kill transactions by designating them for hearing before Administrative Law Judges, instead requiring such cases to be litigated in federal court just as the Justice Department must when contesting proposed transactions.

CFIF urges quick Senate passage of the commonsense legislation.