F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the motion to recommit. Mr. Speaker, passing this motion to recommit will not serve to do anything but to continue a debate that has gone on for almost 45 years. In 1960, the Senate passed an amendment to allow for the appointment of House Members. It was never voted on in the House of Representatives, and that was during the height of the Cold War when everybody was afraid that the Soviet Union would unleash a missile or massive numbers of bombers, and if we did not make it down to the bunker at the Greenbriar in West Virginia, the entire Congress would be wiped out. That was a crisis time, and the Congress did the right thing: It ignored what the Senate did in terms of appointment of House Members. Sending this resolution back to committee is not going to change anybody's mind on whether replacement House Members should be appointed or elected. We ought to hit this issue directly on the nose and vote on the amendment after defeating the motion to recommit. Now I am again very puzzled by the fact that many of the proponents of this amendment, including the Commission on Continuity in Government, and their spokesperson is Norman Ornstein of the American Enterprise Institute, have said that the problem should be addressed seriously and expeditiously. This is what we are doing today. And the author of the resolution, who now wants to have more hearings, told Roll Call on October 23, 2003, that the more urgent matter is to put the measure before the body. The measure is before the body today. We ought to vote down the motion to recommit. We ought to have a clear vote on whether Members want to have temporary successors appointed or to preserve Madison's principle of having the People's House be elected by the people. It is time to stand up and be counted, not to have more hearings on the subject. Vote no on the motion to recommit and vote no on the joint resolution.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Cox), the chairman of the House Republican Policy Committee.

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 2 minutes. Mr. Speaker, I would like to respond to the complaints about the process in the Committee on the Judiciary. It is true there were no hearings on the amendment of the gentleman from Washington (Mr. Baird) during this Congress. There was a hearing in the last Congress. There was not very much support for the notion of appointing replacement Members of the House of Representatives. The gentleman from Washington (Mr. Baird) introduced House Joint Resolution 83. Until the day it was reported by the Committee on the Judiciary, it had no co-sponsors at all. Then there were two people who added their names to the joint resolution, including the gentleman from New York. There was one amendment that was offered during the committee markup when the resolution was open for amendment at any point, and it was subsequently withdrawn. When the Committee on Rules had its hearing last night, none of my Democratic friends offered any amendments for the Committee on Rules to consider. The gentleman from California (Mr. Rohrabacher) did offer an amendment. I would point out that on November 15, 1983, when the Democrats were controlling the House, the House considered the Equal Rights Amendment, a very important constitutional amendment under suspension of the rules where there was only 40 minutes of debate and no amendments were offered. Two-thirds vote was required under suspension, as it is for constitutional amendments; and it was voted down. But anybody who complains about this process where there is 90 minutes of debate, no amendments because it is a closed rule and, except for the gentleman from California (Mr. Rohrabacher), nobody offering any amendments, I think really ignores how the ERA was considered 21 years ago. Now, finally the gentleman from Washington (Mr. Baird) filed a discharge petition. He wanted to bring the bill up out of the regular order, without any hearings, and without any committee consideration. What I did is there was a full markup at the committee where the amendment was open for amendment at any point. There was a vote in the committee. And the majority of the committee reported it out adversely. So I think that anybody who says we need more hearings should not have been on that discharge petition. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Virginia (Mr. Forbes), a member of the committee.

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman from Texas (Mr. Smith) a member of the Committee on the Judiciary.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence), a member of the Committee on the Judiciary. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. Dreier), the distinguished chairman of the Committee on Rules. (Mr. DREIER asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Goodlatte), a member of the Committee on the Judiciary when he is not busy as chairman of the Committee on Agriculture.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentlewoman from Michigan (Mrs. Miller), who served two terms as Secretary of State and chief elections officer of the State of Michigan.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, today we debate whether we should amend the Constitution of the United States to allow House Members to be appointed in the wake of mass vacancies caused by a terrorist attack. After September 11, 2001, no one would deny the real potential of such a catastrophe striking this body, but fundamentally today's debate is about whether to preserve lawmaking by a House of Representatives elected by the people or to deny the right of elected representation during the most crucial moments of American history and allow lawmaking by an appointed aristocracy. I would urge the membership to soundly defeat this constitutional amendment to preserve the People's House as an elected House and not as an appointed House. Let us be clear, any constitutional amendment denying the right to elected representation would accomplish what no terrorist could, namely striking a fatal blow to what has always been the People's House. The House, unlike the Presidency and the Senate, are unique among all branches and bodies of the entire Federal Government. It is the only branch institutionally designed to always reflect the popular will through the legislation it passes. When terrorists attacked on September 11, 2001, it was an elected not an appointed Congress that acted in its wake; and the legislation passed by that elected Congress has a legitimacy that legislation passed by an appointed Congress would not have had. All of Congress' powers under Article I of the Constitution are only legitimately exercised by an elected House. H.R. 2844, the Continuity in Representation Act, which passed the House on April 22 by an overwhelming bipartisan vote of 306 to 97, with more Democrats voting for it than against it, will ensure that the House is repopulated by legitimate democratic means within a maximum of 45 days after an attack causes mass vacancies. Within those 45 days, any constitutional amendment that allowed lawmaking by appointed members would pose far more risks than benefits; and legislation passed by an appointed House that did not comport with the people's will would have to be repealed by a later elected House, leading to further discontinuity at the very time when continuity is most important. The Founders explicitly rejected the proposition that the appointment of Members is compatible with the American Republic. James Madison wrote that ``it is particularly essential that the House should have an immediate dependence on, and an intimate sympathy with, the people'' and that ``elections are unquestionably the only policy by which this dependence and sympathy can be effectively secured.'' As Madison stated in his speech to the Constitutional Convention, ``a gradual abridgement of the right to elected representation has been the mode in which aristocracies have been built on the ruins of popular forms.'' This amendment is an abridgement of the right to elected representation. Contrary to the claim made by proponents of constitutional amendments, the President would not be unconstrained in its conduct immediately following a catastrophic terrorist attack. Of course, the President would be well within his constitutional authority to execute the laws in times of crisis. However, the Founders also made it clear that the President would always be subject to impeachment by the House of Representatives, either a House operating on reduced membership or a later fully reconstituted House if the President abused executive authority at any time. And of course no law can be enacted solely by a House operating with a few Members alone. Further, the issue of incapacitated House members can be handled by changes to House rules. The Committee on Rules is already exploring those options. Demonstrating this is not a partisan issue but one concerning the legitimacy of all Members of the House and of the legislation it passes, the House of Representatives, controlled both by Democrats and Republicans, throughout history has rejected all constitutional amendments authorizing appointed House Members sent to it by the Senate, even during the height of the Cold War. It is important to remember that the American people have always been able to elect their leaders, even during our Nation's darkest hour, the Civil War, when General Lee's Army was just a few miles away from this building. Today we consider House Joint Resolution 83 sponsored by the gentleman from Washington (Mr. Baird). This proposed constitutional amendment contains all the flaws of amendments allowing the appointment of nonelected members, but it also has some unique additional problems. The Baird amendment would not only override H.R. 2844, which already has passed the House by an overwhelming bipartisan vote, but it would forever strip the Congress of its discretionary authority to expedite special elections in emergency under its existing constitutional powers. Let me repeat this. The amendment before us takes away the right of Congress under Article I, section 4, that expedites special elections in emergencies. The amendment also requires House Members, prior to taking the oath of office, to submit a list of names to the governor that the governor can draw from in appointing that Member's replacement. This would subject candidates for Congress forever after to endless questions during their campaigns regarding whom they placed on the list and their connection to the candidate, and perhaps questions that can become embarrassing, creating needless distractions in what is supposed to be a clear contest between individual candidates. And if a candidate did not tell the press who was on his or her list, the voters would not have a say on who the candidate's potential replacement should be. Such a list would also invite great mischief, including the placing of names on the list of those owed political favors. Finally, H.J. Res. 83 provides that ``Congress may by law establish the criteria for determining whether a Member of the House of Representatives or Senate is dead or incapacitated.'' This provision would deny the House its existing authority under the Constitution that allows each House to adopt its own rules, an authority the Committee on Rules is already exercising, to address incapacitation by the rules, and needlessly involve the Senate in how the House operates. By doing so, it would unfortunately make addressing continuity of government more difficult than it already is. Mr. Speaker, I doubt that any Member has faced a vote before that so clearly defines the principles stood for. Either you will vote to tear the fabric of our Constitution and deny the right of self-government under the laws passed by the people's chosen representatives, or you will vote to preserve the sacred right to elected representation. That sacred right has endured since America's birth, through two World Wars, a Civil War, and now a shadow war waged by vicious haters of democracy. The terrorists would like nothing more than to see us rewrite our Constitution, the supreme law that comes closest to being our Nation's soul, to reflect their twisted vision of autocratic rule. Around the world, both our friends and our enemies are watching. Vote this amendment down and show them what this House stands for and what it stands against. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on House Joint Resolution 83, currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 657, I call up the joint resolution (H.J. Res. 83) proposing an amendment to the Constitution of the United States regarding the appointment of individuals to fill vacancies in the House of Representatives, and ask for its immediate consideration.

Mr. SENSENBRENNER. Mr. Speaker, I am prepared to close debate if the gentlewoman from California will do so first.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume to the gentleman from Texas (Mr. Barton), the distinguished chairman of the Committee on Energy and Commerce. (Mr. BARTON of Texas asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 3866) to amend the Controlled Substances Act to provide increased penalties for anabolic steroid offenses near sports facilities, and for other purposes, as amended.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 3866, the bill currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, recently American sprinter Kelli White admitted to the United States Anti-Doping Agency that she had been taking banned steroids. European 100 meters champion Dwain Chambers and four other U.S. athletes also recently tested positive for steroid use. Steroid use in professional baseball is well-known. The fact is that steroids are abused in professional sports more often than many would like to admit, and we face statistics showing an alarming number of children in middle school and high school have tried steroids. By simply reading the newspapers, one gets the feeling that steroid abuse is an epidemic. We must ask ourselves what kind of example is being set for our children when our best athletes feel it is necessary to pollute their bodies with these chemicals and risk their health to compete in sports. Today, we are here to say enough is enough by making it harder to traffic in steroids and making sure there are tough penalties for those who do. Studies show that steroid use may include some very serious consequences such as liver disorders, heart attack and stroke. Additionally, many long-term users face psychiatric effects such as rage, mania or delusions. When used by adolescents, steroid use may result in premature growth cessation or rupturing of tendons. In addition to facing the health consequences of taking steroids, Ms. White, Dwain Chambers and other athletes are facing the consequences of their actions professionally. All will be banned from competition for 2 years. Ms. White had to relinquish the medal she received in the 2003 world championships. Hopefully, the message our children receive from these high-profile cases is that our society will not tolerate this type of cheating in professional or Olympic sports. We should admire the athletes who achieve greatness through hard work and their own God- given abilities and hard work. The Anabolic Steroid Control Act of 2004 will help to drive home this message. This legislation adds steroid precursors, substances which become steroids in the body, to the list of controlled substances, meaning they will no longer be available unless prescribed by a physician for a legitimate medical purpose. It also increases the penalties for anyone caught trafficking in steroids near a sports facility. The goal here is clear. We do not want these substances around our gyms, baseball stadiums, football fields or our running tracks. We do not want our athletes to risk their health to win. We want our athletes to be examples of healthy individuals. We want the way our American athletes treat their bodies to be a source of pride for our country, not a source of shame. We want our children to be able to look up to them for their accomplishments. I strongly urge my colleagues to support this legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 1086.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 1086) to encourage the development and promulgation of voluntary consensus standards by providing relief under the antitrust laws to standards development organizations with respect to conduct engaged in for the purpose of developing voluntary consensus standards, and for other purposes.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of H.R. 1086, the Standards Development Organization Advancement Act of 2003. This legislation contains several important revisions to America's antitrust laws. Title I of the legislation contains limited antitrust protection for standards development organizations. Technical standards play a critical role in fostering competition and promoting public health and safety. Without standards there would be no compatibility among broad categories of products and less confidence in a range of building, fire, and safety codes that promote the public welfare. In the United States, most standards development is conducted by private nonprofit organizations known as Standards Development Organizations, or SDOs. This approach reflects the fact that private organizations are better able to keep up with the rapid pace of technological change. Congress has recognized the importance of SDOs and requires Federal agencies to adopt standards issued by these organizations whenever possible. Over the last several years, the critical efforts of SDOs have been undermined by sometimes frivolous antitrust lawsuits. The growing frequency of these claims against SDOs stifles their ability to obtain technical information, hampers their effectiveness, and undermines the public goals that the SDOs advance. I introduced this bill to remedy this problem. This legislation codifies the rule of reason for antitrust scrutiny of SDOs which requires courts to assess whether the standards-setting activities of an SDO are procompetitive. It also limits the SDOs civil liability to actual, rather than treble, damages, and provides for the recovery of attorneys fees to substantially prevailing parties in antitrust actions against these organizations. To receive these limited safeguards, H.R. 1086 requires the SDO to inform Federal antitrust authorities of the scope and nature of their activities and to devise and issue standards in a fair and open process prescribed by the legislation. The Senate amendment we consider today also contains important bipartisan provisions that deter antitrust violations while strengthening antitrust enforcement efforts. Title II harmonizes the treatment of criminal antitrust offenders and other white collar criminals by increasing maximum prison terms for criminal antitrust violations from 3 to 10 years while increasing maximum individual fines for antitrust violations from $350,000 to $1 million. These provisions send an unmistakable message to those who consider violating the antitrust laws that if they are caught they will spend much more time considering the consequences of their actions within the confinement of their prison cells. Title II also increases maximum corporate fines for antitrust violations from $10 million to $100 million. This considerable increase sends a clear signal to corporate officers and board members that a decision to violate antitrust laws will be severely punished. Title II of the legislation also contains important modifications to the antitrust leniency program used by the Department of Justice to facilitate the detection and prosecution of antitrust violations. Under existing practice, parties that cooperate with Federal antitrust authorities to uncover violations may not be subject to government prosecution, but remain liable in civil actions brought by private parties. The bill creates an additional incentive for corporations to disclose antitrust violations by limiting their liability in related civil claims to actual damages. Furthermore, while a cooperating party would be liable only for damages attributable to that party's conduct, noncooperating conspirators will remain jointly and severally liable for treble damages for the misconduct of all of the conspirators. As a result, the full scope of antitrust remedies against nonparticipating parties will remain available to the government and private antitrust plaintiffs. Finally, the legislation clarifies the Tunney Act. This act gives Federal district courts some authority to review the merits of civil antitrust settlements with the United States before they enter final consent decrees. Specifically, district courts in which an antitrust suit is brought must assess whether these decrees are ``in the public interest.'' The bill provides legislative guidance to the district courts by listing specific factors to be considered during this analysis. In addition, the legislation facilitates the transmission of comments received during Tunney Act proceedings by allowing Federal judges to order their publication by electronic or other means. Mr. Speaker, H.R. 1086 contains important provisions that enhance the effectiveness of the antitrust laws and the authority of antitrust enforcement agencies to implement them. The legislation is truly bipartisan and bicameral in nature, and while several people deserve credit for this legislation, I would like to recognize the late Committee on Science Chief Counsel Barry Beringer. Barry's hard work and dedication brought this legislation to the floor last year, and his decades of dedication and service brought great credit to this House. I urge my colleagues to support the legislation. Pursuant to the general leave already granted, I will be placing into the Record a statement of legislative history that the gentleman from Michigan (Mr. Conyers) and I have agreed to, and I ask that it appear in the Record at the end of my statement. Supplemental Legislative History for H.R. 1086, the ``Standards Development Organization Advancement Act of 2003'' as Enrolled by the House and Senate When the House passed H.R. 1086, the ``Standards Development Organization Advancement Act of 2003,'' it only contained provisions directed at including standards- development activities undertaken by certain standards development organizations (SDOs) within the treatment accorded certain joint ventures by the National Cooperative Research and Production Act ``NCRPA.'' The Senate-passed version of H.R. 1086, which substantially incorporates the provisions of the House-passed version in its Title I, also contains an additional title, the ``Antitrust Criminal Penalty Enhancement and Reform Act of 2003.'' The following legislative history is submitted on behalf of the House Committee on the Judiciary jointly by Chairman Sensenbrenner and Ranking Member Conyers: Section-by-Section Analysis of H.R. 1086 title I--``standards development organization advancement act of 2003'' Section 101 contains the short title. Section 102 sets forth the findings and purposes of the bill as they relate to standards development activities and standards development organizations (SDOs). The findings explain the purpose(s) behind the original enactment and subsequent amendment of the National Cooperative Research and Production Act (NCRPA). The findings also discuss how passage of the National Technology Transfer and Advancement Act of 1995 (NTTAA) unintentionally heightened the vulnerability of SDOs to antitrust litigation. The findings also explain how SDOs generally do not stand to benefit from any antitrust violation that might occur during the voluntary consensus standards development process. Finally, this section finds that continuing to subject SDOs to potential treble damages liability under the antitrust laws could impede pro- competitive standards development activity. Section 103 adds to the existing definitions contained in section 2 of the NCRPA: The term ``standards development activity'' is defined as ``any action taken by a standards development organization for the purpose of developing, promulgating, revising, amending, reissuing, interpreting, or otherwise maintaining a voluntary consensus standard, or using such standard in conformity assessment activities, including actions relating to the intellectual property policies of the standards development organization.'' The definition of ``standards development activity'' excludes the following activities: exchanges of information, including competitively-sensitive information, among competitors relating to cost, sales, profitability, prices, marketing, or distribution of any product, process, or service that is not reasonably required in order to develop or promulgate a voluntary consensus standard or in order to use the standard in conformity assessment activities; agreements or other conduct that would allocate a market among competitors; and agreements or conspiracies that would set or restrain prices of any good or service. The definition of ``standards development activity'' is broad enough to encompass any action taken by an SDO in ``developing, promulgating, revising, amending. reissuing, interpreting or otherwise maintaining a voluntary consensus standard, or using such standard in conformity assessment activities, including actions relating to the intellectual property policies of the SDO.'' The ``Standards Development Organization Advancement Act of 2003'' is not intended to change or influence existing intellectually property policies currently utilized by various SDOs (including but not limited to, patent searches), nor to affect or influence new intellectual property policies that may be developed in the future. Such policies are vitally important to ensuring a level playing field among all users of a standard that incorporates patented technology. In addition, the legislation is not intended to change or alter the application of existing antitrust laws with respect to intellectual property. The legislation also seeks to encourage disclosure by intellectual property rights owners of relevant intellectual property rights and proposed licensing terms. It further encourages discussion among intellectual property rights owners and other interested standards participants regarding the terms under which relevant intellectual property rights would be made available for use in conjunction with the standard or proposed standard. The term ``standards development organization'' is defined as ``a domestic or international organization that plans, develops, establishes or coordinates voluntary consensus standards . . . in a manner consistent with Office Management and Budget (OMB) Circular Number A-119, as revised on February 10, 1998.'' The definition includes only the voluntary consensus standards body conducting the particular standards development activity, and does not include firms participating in the standards development activity. The term ``technical standard'' is defined by reference to section 12(d)(4) of the NTTAA. The term ``voluntary consensus standard'' is defined with reference to revised OMB Circular

Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time as well.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, the application of the antitrust laws in the telecommunications sector has produced enormous competitive benefits. Market competition has fostered innovative technologies, greatly enhanced product and service choices, and reduced prices for millions of American telecommunications consumers. The threat of treble damages for antitrust violations has provided a powerful deterrent against anticompetitive misconduct in this marketplace. Indeed, the primary catalyst for the structural changes that have produced the enormous competitive gains and expanded consumer choice in the telecommunications fields was the principled application of the antitrust laws. The legal basis for the elimination of Ma Bell's national telephone monopoly was rooted in the antitrust laws. While the former AT&T had operated in a highly intensive Federal and State regulatory regime for decades, the government relied on the antitrust laws to provide the robust procompetitive remedy that regulation could not, did not, and will not provide alone. The Telecommunications Act of 1996 (the ``Telecom Act''), was enacted ``to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers . . . by opening all telecommunications markets to competition.'' In passing the Telecom Act, Congress did not create an ``antitrust free zone'' in which the regulatory provisions of the Telecom Act limited the historic application of the antitrust laws in deterring and punishing monopolistic misconduct in the telecommunications field. Rather, to reaffirm the centrality of the antitrust laws in the overall regulatory scheme created by the Telecom Act, Congress included an explicit antitrust saving clause in the legislation. In clear and forceful legislative guidance, Congress said: ``. . . Nothing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.'' The inadequacy of regulation to fully deter anticompetitive misconduct is widely recognized. In fact, Federal Communications Commission Chairman Michael Powell, whose agency has authority to implement the Telecom Act, concluded in a 2001 letter to the Senate Appropriations Committee that the FCC's current fining authority for anticompetitive violations is ``insufficient to punish and deter violations in many instances . . . given the vast resources of many of the nation's [incumbents.]'' Despite Congress's unmistakable resolve to preserve the vital role of the antitrust laws in this field, a record of considerable judicial confusion has developed in our nation's courts. In 2000, the Seventh Circuit issued the Goldwasser decision, ignoring the plain language of the antitrust savings clause and holding that the Telecom Act ``must take precedence over the general antitrust laws.'' In Law Offices of Curtis Trinko v. Verizon, the Second Circuit Court of Appeals sharply departed from Goldwasser's flawed reasoning and upheld the plain language of the Telecom Act, thus preserving an antitrust cause of action for anticompetitive misconduct in the telecommunications market in addition to the regulatory regime created by the Telecom Act. In March of 2003, the Supreme Court granted certiorari to review the case. In November of 2003, the Committee on the Judiciary conducted an oversight hearing titled: ``Saving the Savings Clause: Congressional Intent, the Trinko Case, and the Role of the Antitrust Laws in Promoting Competition in the Telecom Sector.'' This hearing examined the need to preserve an antitrust remedy for anticompetitive misconduct that may also violate provisions of the Telecom Act. During the committee's hearing, I stated that ``judicial circumvention or erosion of the savings clause contained in the 1996 Act will necessitate a swift and decisive legislative correction from this Committee and Congress.'' In January, 2004, the Supreme Court handed down its Trinko decision. While the Court upheld the antitrust savings clause on its face, the decision makes it nearly impossible to state an antitrust claim for anticompetitive conduct within the regulatory ambit of the Telecom Act. In reaching its conclusion, the majority looked to the perceived institutional capacity of regulators to remedy anticompetitive misconduct. Specifically, the majority decision stated: ``One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny. . . .'' The Court also stated that the ``regulatory framework that exists in this case demonstrates how, in certain circumstances, `regulations significantly diminished the likelihood of major antitrust harm.' '' The Court then concluded that ``against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs.'' This is precisely the judicial analysis that the antitrust savings clause in the Telecom Act precluded. This fundamental judicial error ignores the plain meaning of the antitrust savings clause contained in the Telecom Act and the intent of Congress, and undermines remedial antitrust enforcement in a manner that threatens continued competitive gains in the telecommunications marketplace. Last November, I stated that ``judicial circumvention of the antitrust savings clause in the Telecom Act will necessitate a decisive legislative correction from this Committee and Congress.'' The legislation I introduce today, with the consponsorship of Ranking Member Conyers, delivers on this commitment. This bill reiterates Congress's intent that the full force of the antitrust laws apply to the telecommunications field. The ``Clarification of Antitrust Remedies in Telecommunications Act of 2004'' merely provides that unlawful monopolistic behavior that may also violate the regulatory obligations of the Telecom Act may constitute an antitrust violation. The legislation provides an antitrust remedy for these violations irrespective of the existence of regulations that apply to this industry. In so doing, the legislation merely reiterates the plain meaning of the antitrust savings clause and the broad bipartisan intent of Congress to preserve the application of the antitrust laws in the telecommunications field irrespective of the existence of the Telecom Act. To be clear, the legislation does not automatically transform violations of the 1996 Act into antitrust violations: this is not, nor has it even been, the intent of preserving application of the antitrust laws in the regulatory scheme created by the Telecom Act. The ``Clarification of Antitrust Remedies in Telecom Act of 2004'' merely reaffirms that violations of the Telecommunications Act may constitute an antitrust violation in appropriate circumstances: this legislation restores the result Congress intended; it does not transform the antitrust laws nor create antitrust obligations that the Telecommunications Act did not contemplate. Over the last five decades, the Committee on the Judiciary has played a central role promoting competition in the telecommunications market. It has drafted procompetitive legislation and overseen its implementation. The committee has also diligently preserved the application of the antitrust laws in the telecommunications marketplace. The ``Clarification of Antitrust Remedies in Telecommunications Act of 2004'' continues this important tradition by ensuring that the antitrust laws continue to provide a catalyst to promote competition and consumer choice in this vital marketplace. In that vein, I wish to comment briefly on a related matter. The committee continues to monitor the status of negotiations between incumbent and competitive local exchange carriers requested by the Federal Communications Commission in light of the D.C. Circuit Court of Appeals March 2, 2004, invalidation of key aspects of the most recent FCC Triennial Review Order. While the Committee on the Judiciary does not intend to prejudice the outcome of these continuing talks, it reserves the right to review these agreements to ensure that they are consistent with the antitrust laws and promote competition and consumer choice in the telecommunications marketplace. I look forward to working with my colleagues to ensure that the antitrust laws produce the irreversibly open telecommunications markets that we all seek, and urge their support for this critical legislation.