October 02, 2015
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: Principled Conservatism at its Best
Last week I was honored to stand with several of my Senate colleagues to announce the Sentencing Reform and Corrections Act, a bill that makes modest, but important and long-overdue, changes to our federal sentencing laws and penal system.
The bill expands federal judges’ now-limited discretion, so they can treat offenders like human beings, not statistics, and impose a punishment – neither too lenient nor too harsh – that fits both the crime and the criminal. And it improves the quality of our federal prisons – by increasing access to vocational training, therapeutic counseling, and reentry services – so that we have fewer first-time offenders turning into career criminals.
But perhaps the bill’s most distinctive feature is the bipartisan support it enjoys – a fact that some on the Right find disconcerting.
And in one sense, I can understand why.
After all, much of today’s government dysfunction is the product of the cooperation – one might say the collusion – among the two parties, twisting public policy to privilege economic and political insiders at the expense of everyone else, especially the most marginalized and vulnerable among us.
But this is not the case with the Sentencing Reform and Corrections Act.
The truth is that this bill, and the movement for criminal justice reform that’s behind it, doesn’t call on conservatives to compromise our principles, but to fight for them.
Criminal justice reform properly understood represents principled conservatism at its best.
It’s about making our communities – the little platoons of service and cooperation at the heart of our republic – safe and prosperous and happy.
It’s about basing our laws, our court procedures, and our prison systems on a clear-eyed understanding of human nature – of man’s predilection toward sin and his capacity for redemption – along with an uncompromising commitment to human dignity."
Respect for the equal dignity of all human life – no matter how small or weak – and for the redemptive capacity of all sinners – no matter how calloused – is the foundation for everything that conservatives stand for. Our approach to policing and punishment should be no different.
Some crimes are so heinous, and some criminals so monstrous, that the only responsible and fair response is to prevent an offender from ever reentering the society that he has so routinely or so violently threatened.
But the reality is that almost every offender who goes to prison will one day get out. We do ourselves a disservice when an offender’s punishment does more to promote criminality than penitence.
This is why I’m involved – and invite you to join me – in the conservative movement for criminal justice reform.
Issue in Focus: SMARTER Act
More than thirty years before Parker Brothers sold their first “Monopoly” board game, the federal government began laying the foundation for our modern anti-trust regulatory regime in order to prevent real monopolies from emerging in the marketplace. While this regulatory framework has largely succeeded in protecting the fair and open competition upon which our free-enterprise economy depends, a relatively minor design flaw has caused the enforcement of our nation’s antitrust laws to be inconsistent and uneven.
In 1903 the position of Assistant Attorney General for Antitrust was created within the Department of Justice (DOJ), which would later become the Antitrust Division, and in 1914 Congress created the Federal Trade Commission (FTC), an independent agency that was designed to share antitrust enforcement authority with the DOJ.
The FTC and the DOJ’s Antitrust Division are both tasked with enforcing Section 7 of the Clayton Act, which prohibits any mergers and acquisitions that would “substantially lessen competition” or “tend to create a monopoly.”
In order for two or more private entities to complete a merger or acquisition, they must notify the FTC and the Antitrust Division, at which point one of the two antitrust enforcement agencies will have a period of time to analyze the potential effects of the transaction.
If the agency determines that the completion of a proposed transaction would violate Section 7, it pursues an injunction of the transaction in federal court. Typically, when the court grants the injunction, the parties of the potential transaction abandon the merger, whereas when the court denies the injunction, the parties execute the transaction shortly thereafter.
But the problem is that the two agencies are held to different standards when seeking a preliminary injunction of a proposed transaction in court.
Some commentators argue that the standards facing the FTC are more lenient than those confronting the DOJ, which would mean that, all else being equal, proposed mergers and acquisitions reviewed by the FTC are more likely to be blocked by the government than transactions that are reviewed by the DOJ.
But regardless of whether, and to what extent, the disparate preliminary injunction standards yield different results, there’s no good reason for two agencies to be governed by different rules when applying the same laws.
The “Standard Merger and Acquisition Reviews Through Equal Rules Act of 2015” – or the SMARTER Act – would solve this discrepancy by harmonizing the standards applied to the DOJ and the FTC when each agency seeks a preliminary injunction to a proposed merger or acquisition. It would also harmonize existing disparities between the procedures the two agencies use in merger litigation, by stripping the FTC of its power to administratively litigate proposed mergers that courts have refused to block.
Protecting the American people and economy from the harmful effects of monopolies need not come at the expense of equality before the law. This is the premise behind the SMARTER Act, which would ensure that companies don’t confront two different sets of rules when preparing to undergo a merger review process with the federal government.
