Washington, DC - Today, House Judiciary Committee Ranking Member Jerrold Nadler, Senator Amy Klobuchar, Senator Elizabeth Warren, and Representative Pramila Jayapal led 24 of their colleagues in a letter to House and Senate Appropriations, urging them to remove language from FY24 Commerce, Science, and Justice (CJS) appropriation bill that blocks the Department of Justice’s (DOJ) Antitrust Division from using merger filing fees collected over $233 million. The bicameral, bipartisan letter expresses deep concern that this cap undermines Congress’ intent to provide the Division with additional fees from merger filings, as codified by the Merger Filing Fee Modernization Act and State Antitrust Enforcement Venue Act of 2022.

The members explain, “Since Congress amended the Hart-Scott-Rodino Antitrust Improvements Act to add merger filing fees in 1989, the Antitrust Division of the Justice Department has received a budget made up partially of fees and partially of appropriated funds from Congress. The purpose of the recently passed legislation was to provide additional fees from merger filings to the Antitrust Division of the Department of Justice. The 2022 amendment received significant bipartisan support in the Senate and the clear intent of the provision was best captured by the title which states it is ‘to increase antitrust enforcement resources,’ in order to ‘protect competition and promote antitrust enforcement.’”

The members argue that the CJS bill’s cap of $233 million–$45 million below the original FY2024 Congressional Budget Office fee estimate of $278 million–leaves the Antitrust Division without sufficient resources to carry out its work, which includes tackling criminal price fixing and harmful monopolization. “The cap on merger fees available to the Antitrust Division will tie its hands to do this work in the event of a significant increase in merger and acquisition activity because the work would increase without any commensurate increase in funds.” The bill also imperils the viability of future cases, such as those that could result from the reported investigation into anticompetitive activity by Live Nation-Ticketmaster.

The members also take issue with the bill’s conference report, which misrepresents the Antitrust Division as a “fee-funded agenc[y]” and ignores on-the-record discussion leading up to the vote. “The misleading report could set a harmful precedent that can be used to further divert merger fees from the Antitrust Division in the future.”

To remedy this, the members urge authors to strike the final clause of the bill text regarding Antitrust Division funding and strike all but the first sentence of the conference report section regarding Antitrust Division funding. They write, “This will bring the bill into compliance with the law and congressional intent.”

A full copy of the letter can be read here.  

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