Commentary

Hatch v. Gates: Just Who Is Abusing Power?

The charge is that Microsoft CEO Bill Gates, is abusing his “monopoly power” over the software industry. But a letter to Gates from Senator Orrin Hatch (R-Utah) suggests that the real abuse of power may be coming not from Washington state, home of Microsoft, but from Washington, D.C. That, at least, is the view of Senator Slade Gorton (R-Wash.), who defended his constituent with a stinging rebuke of Hatch. The exchange of letters, not yet known to the public, is a striking statement about the politics of power.

On April 30, Hatch castigated Gates for — are you ready? — drafting a letter to the Department of Justice and state attorneys general, signed by a number of Microsoft’s customers, expressing concern that the recent antitrust frenzy might be harmful to the industry. Gates had the temerity to suggest that innovation is important and Microsoft should not be prevented from delivering, on-time, its Windows 98 operating system.

That simple plea was apparently more than Hatch could bear. He warned Microsoft against “a concerted campaign by the target of an investigation to generate pre-crafted protest statements.” Hatch, with that thinly veiled threat, reduced the First Amendment to rubble as he put Gates on notice that the exercise of his constitutional right “to petition the Government for a redress of grievances” could prove costly. Gates, rightly appalled, sent a copy of the letter to Senator Gorton, who blasted Hatch, advising him that Microsoft “should feel itself under no obligation to respond to your recent missive.” That set the stage for a further exchange in which Hatch downplayed his attempt to muzzle Microsoft, then denounced the company’s abuse of its market power. There’s been an abuse of power all right. You be the judge whether Orrin Hatch or Bill Gates is the culprit.

In his opening salvo, Hatch condemned Gates for urging “executives throughout the PC industry … to sign a copy of the letter and send it to federal and/or state law enforcement officials.” According to Hatch, Microsoft orchestrated a “public relations campaign seemingly designed to frustrate legitimate efforts to enforce the laws.”

Never mind that the executive branch, not Congress, enforces the laws. Never mind that the judicial branch, not Congress, determines whether the enforcement of those laws has been obstructed. Senator Hatch was bent on intimidation — and separation of powers, a centerpiece of the Constitution, would not stand in his way.

Never mind that state law enforcement officials are fully capable of prosecuting Microsoft without Hatch’s encouragement or assistance. Although Hatch promotes himself as a champion of states’ rights, he favors federalizing everything from kiddy care to domestic violence, and sees no inconsistency in telling Microsoft what it may communicate to state officials.

Never mind that Hatch and his allies at Justice have politicized the competitive process — enlisting the public sector in pursuit of private interests. Companies that are losing in the free market are now hustling to Washington, cup in hand, where they hope to extract from the political class what they couldn’t earn from consumers. Microsoft, Netscape and Sun Microsystems are already funding and coordinating competing efforts of former lawmakers, congressional staffers, antitrust officials, presidential aides, at least one judge, and a half-dozen of the best-known lobbying, law and public relations firms in Washington.

Never mind that Microsoft is only playing catch-up in a race to the halls of power that its competitors started months ago. Those competitors — including arch-rival Novell, Inc., which hails from Hatch’s home state — continue to spend huge sums of money in a joint anti-Microsoft lobbying crusade. Evidently that’s OK with Senator Hatch; but if Microsoft unsheathes any weapons of its own, the senator wants Bill Gates in his cross hairs.

All of which explains why Senator Gorton’s vigorous response was absolutely justified. “I was astounded by your letter” and your attempt “to deprive Microsoft of its fundamental constitutional right to defend itself publicly,” Gorton shot back. “I am more than outraged,” he continued, “by your suggestion that [Microsoft’s allies] should remain silent about this issue — no matter the potential danger … to their companies, their customers, their employees, and their shareholders… . As Chairman of the Judiciary Committee, don’t you see how threatening it is for you to make such a suggestion?”

Amen! Senator Gorton’s letter is a well-deserved reprimand. As John Adams reminded us more than 200 years ago, “The jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.” Our recourse is not to trust the politicians but to restrain their misbehavior with the chains of the Constitution.

Mr. Hatch, it’s time to abide by the document you profess to embrace.

Robert A. Levy is Senior Fellow in Constitutional Studies at the Cato Institute.