Last week, the New York Times reported that George W. Bush campaign consultant Ralph Reed was moonlighting for Microsoft, lobbying Bush about the company’s antitrust case. (Click here to read Jacob Weisberg’s take on the news and here to read Slate Editor Michael Kinsley’s critique of the Times’ story.) This revelation came one week after a federal judge declared that Microsoft violated antitrust laws by engaging in anti-competitive and predatory behavior. Could Bush really make a difference in the case if he assumed the presidency in 2001?
Yes. A Bush win in November’s general election could affect the antitrust decision in two ways.
1. New administration, new justices. The next president will probably make a number of appointments to the Supreme Court, and the Microsoft case is likely to go to the high court for review. If the case drags on long enough, Bush appointees could help shape the opinion.
2. New administration, new lawyers. Assistant Attorney General Joel Klein, who is in charge of the case against Microsoft, is a political appointee, as are five other members of his office. President Bush could appoint a different top antitrust lawyer who might declare that the case is not worth pursuing and decide to drop it.
It has happened before. When Ronald Reagan took office, his antitrust division dropped an antitrust suit against IBM that had been filed in the waning days of the Johnson administration and pursued by three subsequent administrations. The same office dropped another antitrust case filed in 1979 against Mercedes Benz that, like Microsoft’s, had already been won by the government on the federal district court level.
But it’s highly unlikely that a President Bush would dismiss the case outright. Remember that the federal government is not alone in suing Microsoft–19 states are also parties to the suit. If the federal government pulled an abrupt about-face, the states might very well continue their joint prosecution, exposing a Bush administration to public ridicule for buckling to corporate interests. A more likely scenario would be a settlement of the case on terms more favorable to Microsoft than those offered by the current Justice Department.
The Reagan Justice Department understood how to avoid charges of corporate bias: When it announced the end of the IBM prosecution, it also announced the breakup of AT&T.
Explainer thanks William Grimes, professor at Southwestern University School of Law.
