Midterm Congressional Legislative Wrap-up: Major Issues and Emerging Priorities

Political debates over the future of antitrust policy have become increasingly widespread over the past several months, but the 115th session of Congress will likely conclude without any major antitrust legislation being enacted. Some bills have passed narrowly along party lines in the House of Representatives—only to be tabled in the Senate—while others receive bipartisan support in one chamber, yet lack the votes in the other. But even though Congress failed to enact any meaningful reform during this session, lawmakers in both parties regularly proposed a wide variety of antitrust legislation that could significantly alter several elements of current law and process. Notably, lawmakers in both parties have proposed major—albeit drastically different—reforms in the area of federal merger review. Further, with Democrats currently favored to gain a majority in at least one chamber in the upcoming midterm elections, it is likely that debates over reforming antitrust policy—and especially merger review—will continue to escalate based on the known priorities of the Democratic legislators poised to take over antitrust subcommittee chairmanships.

Republican Priorities: From Merger Review to Class Action Reform. Over the past two years, the Republican-led House has been particularly active in pursuing antitrust legislation. In terms of merger policy, on May 9, 2018, the House passed the Standard Merger and Acquisitions Reviews Through Equal Rules Act of 2018 (H.R. 5645) (SMARTER) by a vote of 230-185. The Act aims to harmonize merger review procedures between the two federal agencies charged with evaluating potential transactions—the DOJ and FTC. Currently, the FTC can challenge a merger using in-house administrative procedures under §13(b) of the Federal Trade Commission Act, while the DOJ can challenge a merger only in federal district court. The SMARTER Act would eliminate the FTC’s in-house challenge authority and require the agency to pursue relief exclusively in federal court, greatly curtailing the FTC’s ability to challenge mergers it deems harmful to competition. The SMARTER Act would also eliminate the FTC’s “public interest” standard for obtaining preliminary injunctive relief, replacing it with the DOJ’s equity-balancing test.