Commentary: The Unseemly Campaign Of Mr. Microsoft

Judge Thomas P. Jackson's stately, wood-paneled courtroom has been a traumatic place for Microsoft Corp. It's where government prosecutors humiliated several top executives, where dozens of embarrassing internal documents were made public--and where the company now faces severe punishment for violating the Sherman Antitrust Act.

So perhaps it's not surprising that Chairman William H. Gates III is trying to dig himself out of trouble in Jackson's courtroom by making friends in the two other branches of government: Congress and the White House. The software mogul has ramped up the company's political contributions, cultivated powerful allies on both sides of the aisle in Congress, hobnobbed with the President at a New Economy conference, and even tried to influence GOP Presidential candidate George W. Bush by hiring top adviser Ralph Reed as a lobbyist. (Once exposed, Reed swiftly abandoned the lobbying effort.) The company also trumpets polls showing most Americans oppose a Microsoft breakup. And it's airing a TV campaign in which Gates proclaims Microsoft's good citizenship.

PERFECTLY LEGAL. The transparent goal of this power display: to influence all who will weigh in on the issue of remedies in coming weeks, including Justice Dept. antitrust chief Joel I. Klein, the 19 elected state attorneys general, Judge Jackson, and any appellate judges reviewing the case. In particular, critics charge that Microsoft is trying to make these people think twice before imposing any draconian punishment on such a popular and powerful company. "It's an attempt to politically nullify the antitrust process," says longtime Microsoft critic Edward J. Black, president of the Computer & Communications Industry Assn.

Nobody is saying the company's political and PR campaign breaks any laws. Gates has a constitutional right to make political contributions, fill the airwaves with ads, and lobby Congress; certainly his opponents do these things. So long as he doesn't make any direct attempt to tip the scales of justice, he's in the clear.

Nonetheless, there's something quite disturbing about watching the world's richest man trying to buy his way out of trouble with Uncle Sam. One of the most deep-seated principles in American jurisprudence is that nobody should be above the law. Another is that judicial decisions should be free from political interference. By defying both these values, Gates's actions undermine the legal system itself. Microsoft's political campaign "is bad news," says William E. Kovacic, an antitrust professor at George Washington University. "Whenever the legislature interferes with ongoing litigation, the rule of law suffers."

Gates is hardly the only one deserving criticism. The pols of both parties who race to pander to him are even worse. Just two days after Jackson denounced Microsoft as a predatory monopolist, Clinton draped his arm around Gates's shoulders and praised his charitable contributions--certainly an uncomfortable sight for Klein as he mulls how to punish the company. Meanwhile, Senate Majority Leader Trent Lott (R-Miss.) suggested Justice should be investigated for overzealous prosecution of the software giant.

Indeed, the scary thing about Microsoft's PR campaign is that it just might succeed. No, the company won't be able to undo Judge Jackson's finding of liability. But Microsoft very well could alter the way prosecutors, and perhaps even judges, evaluate what sanctions it should face.

Consider the issue of breakup. While it's an unpopular remedy, it still deserves careful consideration. There's a legitimate question whether anything less than a structural solution would curb Microsoft's market power. As Justice and the states weigh this tough issue, it may be hard for them to tune out the broader ramifications of such a move. Would splitting up such a beloved American icon be popular with the voters? Would it be a campaign issue? Would the next Administration defend it in the appeals courts?

This isn't to say that breakup is necessarily the right remedy. Just that the courtroom, not the court of public opinion, is the right place to weigh whatever punishment best fits Microsoft's crime. Let's hope Microsoft's far-reaching political and public relations campaign--and the many politicians cooperating with it--don't keep that from happening.