In his May 1 Wall Street Journal Op-Ed arguing for the dismemberment of Microsoft, Judge Robert H. Bork rips the software company for the lobbying campaign it has waged against the government's antitrust case. He writes:
PRINT
DISCUSS
E-MAIL
RSS
RECOMMEND...
Facebook
MySpace
Mixx
Digg
Reddit
del.icio.us
Furl
Ma.gnolia
Sphere
StumbleUpon[Microsoft] is working assiduously for a political reversal of its legal loss. It is hard to walk through the Capitol without tripping over Microsoft's lobbyists--or to read magazines and newspapers without finding vehement columns in its defense from public-interest groups, often with undisclosed financial support from the company. There is so much Microsoft money flowing through the system that the danger for nonpoliticized law is very real.
Bork's diatribe against the politicization of the law by corporate money should be required reading for ... the Project to Promote Competition and Innovation in the Digital Age--ProComp--the organization identified in Judge Bork's Journal Op-Ed as his employer.
What is ProComp? It's an industry group whose director, Mitchell Pettit, offered this mission statement in 1998 when it was founded: "Our goal is to get Justice to file an antitrust lawsuit and win it." That sounds suspiciously like politicizing the law, doesn't it?
Who is Mitchell Pettit? Pettit, a former Bob Dole aide, is a Washington lawyer who has lobbied for both Netscape and Sun Microsystems.
Who is ProComp? Netscape, Sun Microsystems, and Oracle were founding supporters of ProComp. (Bork's bio note also mentions the judge's history as a Netscape consultant.) ProComp's Web site also lists these supporters: American Airlines, American Society of Travel Agents, Computer and Communications Industry Association, Corel, Preview Travel, Software Publishers Associations, the Air Transport Association, the SABRE Group, Sybase, and worldweb.net. In other words, Microsoft's main competitors minus IBM.
Who else is ProComp? Sorry, they'd rather not say. From the Web site: "There are a number of companies and associations involved, some of whom prefer to remain anonymous. This speaks volumes about the power of Microsoft. People are very concerned about how the power wielded by a single company could dramatically impact their businesses, now and in the future." Is this an example of the sort of stealth lobbying Judge Bork abhors?
What does ProComp do? From the ProComp Web site again: "Our focus right now is on education. We are actively working to educate the public and policymakers on the importance of maintaining competition and consumer choice in the electronic marketplace." One possible translation: What ProComp does is pay writers such as Judge Bork to compose vehement anti-Microsoft columns and place them in influential magazines and newspapers such as the Journal. Another: It hires lobbyists to beat up on Microsoft. According to the Washington Post, some ProComp supporters pay dues of $250,000 a year and its lobbyists briefed members of Congress with a slide show urging them to encourage the Justice Department to file an antitrust suit against Microsoft.
How much have ProComp and its members spent on lobbying? According to the Post, ProComp spent $700,000 in 1998, and Netscape, Sun Microsystems, Oracle, and American Online spent a combined total of $5.1 million that year. Microsoft spent $3.7 million.
What else does ProComp do? It recruits new members on this Web page and encourages them to write letters to the Justice Department and Congress in support of ProComp's goals.
Who else works for ProComp? The firm of McGuiness & Holch registered as lobbyists for ProComp in 1998, according to Legal Times.
What do lobbyists do? They loiter the halls of Congress and trip lawmakers.
What do members of ProComp do in their spare time? According to the Washington Post, "Netscape, Sun Microsystems and Oracle, three of Microsoft's biggest competitors, spend heavily on lobbying and campaign contributions." In other words, they send enough money flowing through the system to politicize the law.
Inspired by Judge Bork's paean to transparency and the evils of politicizing the law, let me provide this full disclosure. I am deputy editor of Slate, a Webzine that attempts to influence politicians, the legal establishment, and even voters on matters of public policy but almost never succeeds. Finally, Microsoft owns Slate and I am long in Microsoft stock. Way long. Way, way long.
The Tea Party Protesters Are Getting Smarter
Lithwick: Khalid Sheikh Mohammed's Trial Is a Lousy Place To Examine the Legality of Torture
Who Is Mrs. Cohen From Hadera, and Should Israelis Care Where She Puts Her Money?
What Wired, Esquire, and Hooters Magazines Think You Should Give for Christmas
Save the Planet. Eat More Brie.
How Easy Is It To Hike Into Iran Accidentally?
Reader Response from The Fray:
With all due respect, Bork's status as a paid critiquer of Microsoft by its competitors hasn't exactly been a well-kept secret, or even a secret at all. This is old news. Ninety percent of Bork's Journal piece consists of an analysis of the remedy phase of the case, and only a small part concerns the politicization of anti-trust law. I do think it's fair to remind readers from where exactly Bork is coming when he takes this sort of position. Still, Bork came on board pretty late to a DOJ effort which has been long in the making without his involvement, this being the second such action (with the first resulting in the consent decree with Microsoft, the second being the action before Judge Jackson) taken to constrain Microsoft. Thus, Bork's effect on the DOJ's decision to take the actions it has strikes me as pretty minor, unless I'm missing something.
Bork's criticisms re: the politicization of the process at this stage (ie attempting to obtain a political reversal of a judicial decision) are no less valid because of his affiliations. A decision has been rendered by the courts. Bork believes that the federal judiciary should be allowed to press on and resolve the case without interference from Congress. That Bork and his cohorts may be advocating this position as well within the Congress (although this piece provides me with no evidence that they are actually doing so) would strike me not as sinister, but as being consistent with the separation of powers.
A lot of different DOJ's, Republican and Democrat, have held the position that the anti-trust laws should be as immune as possible from politics not only because the type of economy Americans have decided they want depends on them, but also because most politicians, and even most lawyers, simply don't understand them. It is for this latter reason that anti-trust trials aren't often placed before juries. I think one can take issue with the substance of Bork's arguments about the correctness of Judge Jackson's findings due to who's paying his bills, but I don't agree with the way this piece addresses that small portion of Bork's arguments re: respecting the Court's decision.
--Tom
(To reply, click here.)
Tom writes:
They are absolutely wrong. Jackson's anti-Microsoft bias is well-documented (he has ruled against them twice before until appellate courts overturned those decisions; his behavior during the trial was most indulgent toward the DoJ). Congressional action is vital to restore American confidence in the judiciary. The Judiciary Committee should be reporting impeachment articles against him as we speak. (And, of course, Microsoft should fire their lawyers, who helped make a bad situation worse).
--DC
(To reply, click here.)
To DC: My confidence in the judiciary is based upon the fact that we don't impeach judges for bad decisions. It is a tenet of impeachment law that we don't impeach judges for their decisions, but rather for conduct which makes them unfit to serve. What are you so worried about? The DC Circuit is a well-respected appellate bench, but the DOJ is seeking to bypass them and go directly to the Supreme Court, which I think would be a good thing because you get an even more respected appellate panel and the whole case gets solved even more quickly. By the way, apart from ruling against Microsoft, what bias has Judge Jackson been shown to have?
--Tom
(To reply, click here.)
Shafer seems too experienced a journalist to be surprised at the idea that politicians pass laws that thereafter, courts administer.
--Paul Lynch
(To reply, click here.)
(5/3)