[Congressional Record Volume 144, Number 54 (Tuesday, May 5, 1998)]
[Senate]
[Page S4250]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               MICROSOFT

  Mr. GORTON. Mr. President, my esteemed colleague, the senior Senator 
from Utah, Senator Hatch, was on the floor this morning once again 
after his letter of last Friday denouncing Microsoft's use of its First 
Amendment rights to defend itself against an unwarranted attack by the 
Department of Justice and a handful of state Attorneys General.
  At one level, at least, he went beyond the remarks in his letter with 
the totally unsubstantiated claim that the many C.E.O.'s who joined 
with Microsoft last week and again today to plead with the Department 
of Justice not to inhibit or to postpone the marketing of Windows' 98 
were somehow or another coerced into taking this position. As a 
consequence the Senator from Utah not only questions the right of men 
and women leading major American corporations to speak out on behalf of 
their products, but also insults them by saying they acted outside of 
their own freewill. Mr. President as I have said, there isn't the 
slightest evidence for this proposition.
  These C.E.O.'s were and are defending the right of a magnificent and 
innovative American corporation to keep on innovating, to keep on 
providing newer and better products for the people of the United 
States, and for that matter, for the people of the world.
  The Senator from Utah buttressed his position by quoting from Judge 
Robert Bork, who has had a dramatic late-life conversion from free 
market principles to support willing government intervention in perhaps 
the most dynamic of all of our free markets. While the Senator from 
Utah defended Judge Bork's objectivity in this, he failed to note that 
the judge has recently been hired by Netscape and by others.
  Now, Judge Bork's historic position is perhaps quoted best in just 
two lines from his book ``The Antitrust Paradox,'' in which he says 
``the responsibility of the federal courts for the integrity of virtue 
of law requires that they take consumer welfare as the sole value that 
guides antitrust decisions.'' The sole value that guides antitrust 
decisions should be consumer welfare. Mr. President, in this entire 
debate, we haven't heard a breath, a whisper, or a sentence about 
consumer welfare.
  This is a campaign by Microsoft's unsuccessful competitors to limit 
Microsoft's competitive ability to benefit consumers. Consumers aren't 
complaining, competitors are.
  Judge Bork has dramatically changed positions from that of a consumer 
advocate to an advocate of government control. I must confess, Mr. 
President, that there is precedent for his position. There are 
antitrust cases that might justify some sort of move of this nature by 
the Department of Justice. In 1945 in a decision relating to ALCOA, the 
Supreme Court determined that ALCOA's ``superior skill, foresight and 
industry,'' were exclusionary of less efficient forms. In 1953, in a 
case involving the United Shoe Machinery Company, it was decided that 
United's long line of superior shoe machines and low leasing rates 
illegally excluded higher cost rivals. Now if that is the theory of 
antitrust under which Judge Bork is operating, Senator Hatch is 
operating and the Department of Justice is operating, let them say so. 
Let them say that they don't want innovation, that they don't like the 
new developments, and that they do not want advancing technology.
  But, Mr. President, the whole fight in this case is over whether or 
not we are going to permit the next generation of operating systems to 
go to market. It is that that is at issue, and only that.
  Finally, Mr. President, in this connection, Senator Hatch ended his 
remarks with a line from the Rolling Stones. In the interests of 
fairness and impartiality, I think that we ought to try another one. 
When I hear Senator Hatch defending Janet Reno and lawyers of the 
Justice Department I figure he has been listening to ``Sympathy for the 
Devil'' a little too much lately. There is another Rolling Stones song 
that describes what Microsoft does for it's customers: a little hit 
called ``Satisfaction.'' Microsoft has been satisfying their customers 
for 20 years and that's what they ought to continue to do. To the 
Senator from Utah and everyone at the Justice Department who wants to 
stand between Microsoft and its customers, all I can say is, fellas, 
``you can't always get what you want.''




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