Commentary: Justice Vs. Microsoft: Big Wheels Keep On SpinningSusan B. Garland
These days, you can't do battle in court with just great witnesses or strong evidence. You need spin. Just ask O.J. Simpson counsel Johnnie L. Cochran Jr.--or Kenneth W. Starr. The latest legal spinmeisters? The folks connected with U.S. vs. Microsoft, of course.
With so much at stake for both Justice and Microsoft, the court of public opinion has become as important as the court of U.S. District Judge Thomas Penfield Jackson. Yes, Jackson will decide the case. But also up for grabs are the hearts and minds of Microsoft investors, consumers, a Republican Congress skeptical of the government's antitrust activism, and higher-court judges who eventually will have a say.
Exhibit A: Microsoft's escalated lobbying efforts on Capitol Hill to stoke opposition to the government's case. Congress is a prime target in the public relations war being waged around this historic antitrust case. During the past year, the company has doubled its lobbying presence in the capital, including hiring two ex-aides from Majority Leader Richard Armey's office (R-Tex.). In the 1997-98 election cycle, Microsoft's soft-money contributions to Republican and Democratic party committees soared to $525,000, from only $77,000 during the 1995-96 cycle.
SENATE CHAMPIONS. Antitrust chief Joel I. Klein already is feeling Microsoft's sting. Last June, some Republican senators, accusing Klein of leaks in the case, blocked his request to hike his budget by $9 million for stepped-up merger reviews. Among the senators: Slade Gorton from Microsoft's home state of Washington. A month later, GOP Senators Spencer Abraham of Michigan, Jon Kyl of Arizona, and Jeff Sessions of Alabama wrote Attorney General Janet Reno, accusing antitrust officials of encouraging foreign officials to take action against Microsoft. Justice denied it.
On the state front, Microsoft has also scored some victories. On Dec. 7, after meeting with company executives, South Carolina Attorney General Charles M. Condon dropped out of the roster of 20 states that had signed on to the Justice Dept. suit. Charles F. Rule, a Washington legal consultant to Microsoft, says that during the last election, Microsoft handed out trial-information packets to state candidates. Rule says the company will discuss the case with new AGs. "I expect there will be some re-evaluation," he said.
These new pockets of opposition have not gone unnoticed by the trustbusters. They too have their spin, and it has primarily centered on taking down Microsoft and its chairman, William H. Gates III, a peg or two. Exhibit B: the Justice staffer who rushes down to the TV crews outside the courtroom with copies of Gates's damaging videotaped deposition. Says William E. Kovacic, antitrust professor at George Washington University Law School: "Part of what Klein thinks about is, `I have a Republican legislature, and many people want to take away my budget. We have to create the public awareness that this case is worthwhile and that Microsoft is bad."'
And even in the courtroom, the outside world's perception of the case counts. If Jackson finds Microsoft liable, he'll look to Klein and the Justice Dept. for a recommendation on a remedy. How far Klein can go--perhaps even to suggesting divestiture of some Microsoft businesses--will depend on his support on Capitol Hill. And he will need that backing as he pursues a wider probe of Microsoft's business practices. "Federal agencies always prefer a Congress that's sympathetic," says Washington antitrust attorney Donald M. Falk, who represents Oracle Corp. "If there is a heavy outcry saying, `Don't hurt Microsoft,' that could affect what Justice asks for."
And then there's everyone else. Microsoft wants to make sure the public outcry is loud--loud enough for legislators to hear. Its message: The government is out to destroy one of America's success stories. Lately, it has been trying to scare up a "grassroots" movement of software developers and others. Microsoft E-mails them trial updates with the hope that they will pass on these opinions as their own to legislators.
In the end, this case has become as much a battle for image as a battle for justice. But hey, that's the American way.