aai column, FTC:WATCH
ON POLITICAL INTERFERENCE AND THE MICROSOFT CASE
Albert A. Foer
Historically, the federal antitrust effort has been remarkably free of political interference or other corruption in specific cases. Maintaining this record, envied by the world, requires vigilance. Today, in the aftermath of Judge Jackson's Microsoft decision, we hear threatening words from a few elected officials, rumors of future hearings to attack the Antitrust Division, and a report (in the Washington Post) that the White House, following a Presidential meeting with Bill Gates, may try to influence the remedy process. Where should the line be drawn between politics and law enforcement?
Antitrust enforcement and antitrust remedies are not a matter of legal or economic science being applied in an automatic way. Ideology and discretion necessarily play a role and there are often good reasons to disagree about the handling of a case. When the government seeks antitrust remedies, however, they must be designed to resolve the competitive problems evidenced in the case. That must be the starting point and the end point. If the final judicial solution is not acceptable to Congress, it can set things straight by a legislative action. In the meanwhile, if there was any thought that the Antitrust Division was run by a bunch of crazies, the fact that a Reagan-appointed judge has agreed with them should dispel any fears of an out-of-control process.
In the Microsoft case, therefore, remedies should be designed in the first instance by the law enforcement professionals, without political pressure. This is not to say that national economic interests apart from law enforcement should not be taken into account. A prudent Antitrust Division will seek a clear understanding of the likely implications of its proposed remedy, including ramifications for the high technology sector and for the national economy as a whole. There is no reason why it cannot be advised by other elements of the Administration of which it is, after all, a part. It is important to emphasize, however, that "political" input should be absolutely in the open and should be on the level of assisting both the Division and the Court to evaluate alternative remedies in terms of their impact on public policy.
Like the White House, Congress has the right (perhaps the duty) to ask questions about the remedy and to express opinions. It is difficult to advise Members to focus their remarks on the merits, but threats to the Division's budget, for instance, should be condemned as mean-spirited and out of place.
Candidates for office also have a right to talk about the Microsoft case and we will be better off if they express opinions now, rather than blindside us after the election. (For a candidate to say that he can't comment because the matter is in litigation is a cop out. The rest of us had no trepidation about commenting and neither we nor the candidates will be sitting as judge. A much better reason to withhold comment is that the candidate does not have a close enough familiarity with the case to formulate an opinion.)
Efforts by the Executive or Congress or a candidate to influence the outcome of Microsoft -- or any specific case-- behind closed doors or for reasons that could be construed as driven by private interests rather than the public interest would undermine the great secret asset of American antitrust: that it is perceived as being highly professional and independent of corrosive political influences. As Bill Page asked in an ABA Antitrust ListServe, how would it look if there were a major change directed by the White House after a finding of liability? Would it look like a decision on the merits or a caving to pressure from a powerful corporation? Even without the presence of 19 State Attorneys General that might offset any political leverage targeted at the Division, our political institutions should strenuously avoid any role that would endanger the perception of the professional independence of antitrust.