[Congressional Record Volume 145, Number 43 (Thursday, March 18, 1999)]
[Senate]
[Page S2923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             THE MISGUIDED ANTITRUST CASE AGAINST MICROSOFT

  Mr. GORTON. Mr. President, on Monday, my friend and colleague, the 
senior Senator from Utah, Mr. Hatch, came to the floor to respond to a 
statement that I gave a week or so earlier on the Justice Department's 
misguided antitrust case against Microsoft.
  Mr. President, this has become something of a habit for the Senator 
from Utah and myself. We have debated that lawsuit since well before it 
was commenced, more than a year ago.
  I am happy to state that I want to start these brief remarks with two 
points on which I find myself in complete agreement with Senator Hatch. 
First, during a speech on Monday, he joined with me in asking that the 
Vice President of the United States, Mr. Gore, state his position on 
whether or not this form of antitrust action is appropriate. I centered 
my own speech on the frequent visits the Vice President has made to the 
State of Washington and his refusal to take any such position. The 
Senator from Utah said:

       Government should not exert unwarranted control over the 
     Internet, even if Vice President Gore thinks that he created 
     it.

  I am delighted that the Senator from Utah has joined me in that 
sentiment. Now there are at least two of us who believe that the Vice 
President of the United States should make his views known on the 
subject.
  Secondly, the Senator from Utah, in dealing with the request by the 
Department of Justice that it receive a substantial additional 
appropriation for fiscal year 2000 for antitrust enforcement, stated 
that he is concerned about the value thresholds in what is called the 
Hart-Scott-Rodino legislation relating to mergers and feels that the 
minimum size of those mergers should be moved upward to reflect 
inflation in the couple of decades since that bill was passed, 
therefore, questions at least some portion of the request for 
additional appropriations on the part of the Antitrust Division.
  As I have said before, I believe that it deserves no increase at all, 
that the philosophy that it is following harasses the business 
community unduly, and inhibits the continuation of the economic success 
stories all across our American economy but particularly in computer 
software.
  Having said that, the Senator from Utah and I continue to disagree, 
though I wish to emphasize that my primary disagreement is with the 
Antitrust Division of the Department of Justice of the United States 
and this particular lawsuit.
  The disagreement really fundamentally comes down to one point: 
Antitrust law enforcement should be followed for the benefit of 
consumers. The Government of the United States has no business 
financing what is essentially a private antitrust case. If there are 
competitors of Microsoft who think they have been unsuccessful and wish 
to finance their own antitrust lawsuits, they are entitled to do so. 
The taxpayers of the United States, on the other hand, should not be 
required to pay their money for what is a private dispute, primarily 
between Netscape and Microsoft.
  That remains essentially the gravamen of the antitrust action that 
the Justice Department in 19 States is prosecuting at the present time.
  There is only the slightest lip service given in the course of that 
lawsuit or by the senior Senator from Utah to consumer benefit. This is 
not surprising, Mr. President, because there is no discernible consumer 
benefit in the demands of this lawsuit.
  Consumers have been benefited by the highly competitive nature of the 
software market. They are benefited by having the kind of platform that 
Microsoft provides for thousands of different applications and uses on 
the part of hundreds of different companies all through the United 
States.
  This is not a consumer protection lawsuit. I may say, not entirely in 
passing, that I know a consumer protection lawsuit when I see one. I 
was attorney general of the State of Washington for 12 years. I 
prosecuted a wide range of antitrust and consumer protection lawsuits. 
But every one of those antitrust cases was based on the proposition 
that consumers were being disadvantaged by some form of price fixing or 
other violation of the law. I did not regard it as my business to 
represent essentially one business unhappy and harmed by competition 
for a more effective competitor.
  The basis of my objection to this lawsuit is that it is not designed 
for consumer protection. It is designed to benefit competitors. Some of 
the proposals that have appeared in the newspapers for remedies in case 
of success, including taking away the intellectual properties of the 
Microsoft Corporation, perhaps even breaking it up, requiring advance 
permission on the part of lawyers in the Justice Department for 
improvements in Windows or in any other product of the Microsoft 
Corporation, are clearly anticonsumer in nature.

  The lawsuit is no better now than the day on which it was brought. It 
is not designed to benefit consumers. It ought to be dropped.
  I am delighted that at least on two peripheral areas of sometime 
controversy, the Senator from Utah and I now find ourselves in 
agreement. Regrettably, we still find ourselves disagreeing on the 
fundamental basis of the lawsuit. I am sorry he is on the apparent side 
of the Vice President of the United States and the clear side of the 
Department of Justice of the United States.
  I expect this debate to continue, but I expect it to continue to be 
on the same basis. Do we have a software system, a computer system in 
the United States which is the wonder of the world that has caused more 
profound and more progressive changes in our society than that caused 
in a comparable period of time by any other industry, or somehow or 
another do we have an industry that needs Government regulation? I 
think that question answers itself, Mr. President, and I intend to 
continue to speak out on the subject.

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