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Gorton Tilting At Windows In Senate Microsoft Defense?
Sen. Slade Gorton R-WA's attempts to defend Microsoft on Capitol Hill are beginning to look more and more like a one-man campaign. Most notably, as the focus turns from the antitrust trial, now in a six-week recess, to the budgeting process for the Justice Department, Gorton has found most of his colleagues opposing his call to block funding increases for the Antitrust Division.
Gorton has been loudest in his criticism of the long-running case in the week since Judge Thomas Penfield Jackson interrupted the trial to tend to other cases. Gorton strode to the well of the Senate Mar. 4 to attack the DOJ for going after what he called one of the country's most innovative companies. Gorton announced his own campaign against the forces of antitrust chief Joel Klein, declaring opposition to Klein's request that the antitrust division get a 16 percent budget increase for FY2000 so it could add more than 100 lawyers.
Gorton vowed to use his position on the Appropriations Committee and "every other legitimate vehicle to provide congressional control of this out-of-control, time-warped throwback to the 1960s," a time when more liberal antitrust philosophies were in vogue.
But help in the form of other votes hasn't materialized. At Tuesday's oversight hearings before the Senate Appropriations Subcommittee on Commerce, Justice, State and the Judiciary, Attorney General Janet Reno faced no critics of her department's antitrust efforts. Ranking member Fritz Hollings D-SC defended the increase, criticizing Gorton's motives as parochial and saying that he hoped to be able to increase funding for the antitrust division.
Sen. Byron Dorgan D-ND, a member of the full Appropriations Committee but not the subcommittee dealing with the Justice Department, even made an impromptu appearance specifically to defend the antitrust division and its increased case load.
"With three time the filings as in 1992, I would welcome more funding for the antitrust division," Dorgan said. "While some will oppose that increase, I worry that some of the merger activity has been terribly unhealthy."
Reno said the proposed amount would suffice. "I am very proud of the division," she said. The proposed increase "will keep the division on course."
Late Tuesday afternoon, Judiciary Committee Chairman Orrin Hatch and eight other senators weighed in with a letter to Appropriations Subcommittee Chairman Judd Gregg R-NH, expressing concern that some of their unnamed colleagues "may seek to reduce the funding of the Department of Justice's Antitrust Division."
Joined by Sens. Joseph Biden D-DE, Mike DeWine R-OH, Dianne Feinstein D-CA, Edward Kennedy D-MA, John Kerry D-MA, Herb Kohl D-WI, Arlen Specter R-PA and Strom Thurmond R-SC, Hatch argued that "such an approach may have the undesirable effect of opening the door to undue interference with ongoing Department of Justice litigation."
The letter continued: "In light of recent public statements by some of our colleagues, we felt it would be prudent to alert you to our belief that a decision to decrease funding for the Antitrust Division, especially given the 30 percent increase in merger filings in FY 1998, could be perceived by the public and parties in litigation as interfering with a pending trial."
Gorton was left crying foul, and demonstrating, once again, that Microsoft may well be outnumbered and outgunned in the chambers of the Senate.
"He is just asking questions and wants answers," said Gorton spokeswoman Cynthia Bergman, adding that Hatch's letter, while not naming Gorton directly, unfairly characterized his requests for information as an attempt to defund the DOJ.
"We are not trying to interfere with pending mergers, but we just want to know why they need an increase. There is a battle for precious funds, and other Senators talking about programs that the Justice Department doesn't want to fund," Bergman said.
Meanwhile, Gorton, a member of neither the Appropriations subcommittee nor the Judiciary Committee, which will conduct its oversight hearing on Friday, will have to settle for an grilling of Reno to occur through intermediaries who have been sympathetic to Microsoft, including Sen. Spencer Abraham R-MI and Sen. Jeff Sessions R-AL.
Gorton did pose a series of questions in a letter to Reno in a letter sent Tuesday, asking how much money the government has spent litigating against Microsoft and how much the DOJ has spent on private lawyers, private sector economists, experts and travel related to the case, and on "public relations and public information activities such as issuing press releases, briefing members of the press, posting information on the Internet, etc."
The questions may indicate the next front of the Microsoft political battle, even as pressure mounts on Microsoft to come to a settlement in the wake of the Federal Trade Commission/Intel antitrust lawsuit settlement. Most close observers of the Microsoft trial expect that a settlement at this stage will be an awfully hard pill for the company to swallow. Microsoft officials said they while they are always open to discussions to avoid litigation, they won't compromise their ability to design products.
Mike Pettit, who heads up the anti-Microsoft industry alliance ProComp, argues that nothing short of an agreement to license the Windows source code would be acceptable to the government at this point. But Microsoft defenders call this view nonsense.
Most of the testimony elicited by the government thus far has been irrelevant to proving antitrust violations, said Microsoft legal advisor Rick Rule, a former antitrust division chief in the Reagan Administration. Recalling last May's attempts at a settlement before the antitrust division filed its lawsuit, including such remedies as bundling Netscape Navigator with Windows, he called them "ludicrous" remedies to subsidize another company that had no basis in law.
"Rumors of Microsoft's demise are greatly exaggerated," said Rule.
But one thing seems certain: while a preliminary judgement against Microsoft may be appealed, it would also open the floodgates to new, private lawsuits.
"A government antitrust case generates a significant number of private treble-damages lawsuits against a company," said William Kovacic, a professor of antitrust law at George Washington University Law School. Nothing that by the late 1970s, the Department of Justice's antitrust lawsuit against IBM had already generated 40 separate private lawsuits against the company.
"Once a company is declared a monopoly in court, private parties start at the 50-year line because plaintiffs won't need to establish that," said Pettit.
 | - by Drew Clark |
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