April 2000

Strange bedfellows JOHN BRUMMETT Notes from the state Capitol hallways last week during the odd special session to try to outline a plan for using the state's promised share of the national tobacco settlement.     ------------------------------------------------------------------------     Odd? Why, yes. Consider the alliances.     Gov. Mike Huckabee is aligned with perhaps the most liberal state senator, Jay Bradford of Pine Bluff, and the rest of the Democratic leadership of the Senate, those Nick Wilson dupes and the new Entergy lobbyist, not to mention the few and proud Senate Republicans.     They are jointly behind a plan concocted by and for the University of Arkansas, the University of Arkansas for Medical Sciences, Arkansas Children's Hospital, Arkansas State University, the Arkansas Hospital Association and the state Health Department.     Also on board are the state's pre-eminent establishment lobbies, those usual impediments to progress, the Arkansas Farm Bureau and the Arkansas State Chamber of Commerce.     Strangest of all, I'm an ally. This is surely the best legislation ever proposed, or the worst.     A fellow walks by and says it's positively Clintonesque--all these new commissions and high-minded purposes in the governor's and coalition's bill. But don't call it tax-and-spend. It's sue-and-spend.     I'm telling you, Huckabee is Bill Clinton in Jennings Osborne's clothing.     Weird moment: Phil Matthews, lobbyist for the Hospital Association, is chatting with me as Barbara Pardue, the governor's director of the Economic Development Department, comes over to tell Matthews that he needs to get the Forrest City hospital administrator in line. It seems that administrator has indicated that he kind of likes an alternative plan by House Speaker Bob Johnson to funnel a bit more Medicaid to rural hospitals.     Either she trusts my alliance or she doesn't recognize me. I've lost a bit of weight.     Perhaps this alliance accounts for the governor's brief but beaming chattiness when he passes me on the second floor. Maybe it's that he's glad to see the fellow with whom I'm talking. That'd be Max Brantley of the Arkansas Times.     Sen. Stan Russ of Conway drops by to say he just got a do-pass on his and the Huckster's bill to ban smoking in the Capitol.     "Hey, governor, what's a Huckophile?" Russ asks.     That's what I'd called Russ on Sunday. Huckabee says he isn't sure but that it sounds good.     ------------------------------------------------------------------------     Odd? Yes, indeed. So much so that I find myself momentarily sympathetic to House Speaker Johnson, held pretty much in contempt by the coalition.     There he stands alone, except for the stuporous House members he drags behind him, in opposition to this mighty alliance and its progressive plan for spending $1.6 billion over a quarter-century and beyond on anti-smoking programs, Medicaid, and health education and research. Everyone's been picking on him. Me, especially.     Johnson is quoted in some of the morning press as saying that the coalition's bill to treat the tobacco money as "cash funds" rather than funds of the state treasury is reminiscent of that now famously scandalized program to run off with money to provide legal representation for children in custody cases.     The coalition is highly offended. Why, the very idea that the speaker would so overheat his rhetoric that he would effectively call our health care professionals criminals!     One by one, coalition members take me aside to show me the published quote and shake their heads. This is a full-court press. They know I've spent several weeks ridiculing the rascal. They wouldn't mind if I kept it up.     But I've about reached the stopping point. His words were ill-chosen, but all he meant was that you need accountability for the use of the money.     Anyway, the problem of treating the tobacco settlement as cash funds had been discovered and acknowledged the day before by Bill Goodman, the legislative budget specialist, who called it to the attention of Sen. Mike Beebe, who had already whipped up a correcting amendment that the Senate Public Health Committee would adopt in a matter of minutes.     Thank goodness Goodman isn't term-limited. Thank goodness Beebe isn't for another two years.     Alas, my sympathies for Johnson are short-lived. He takes this consummate health bill and refers it not to the House Public Health Committee, but to the Rules Committee, merely because he controls a majority of the membership.     How does he hold the votes? Here's one example: He told young Shane Broadway, his designated successor as speaker, that unless he wins this battle, the House speakership will mean nothing next year against Huckabee in the governor's office and Beebe as president pro tem of the Senate.     That, you see, is one man's foundation for making public health policy in a tragically unhealthy state.     Then Johnson tells me we don't need agri-medical research in public higher academia because the private sector, motivated by profit, always out-performs government in research. He doesn't acknowledge that our richest states are those that make possible that very private-sector research and development with vanguard research in world-class institutions of higher education.     Some are aiming high with this tobacco settlement. Johnson aims lower.     In the end, I remain convinced that the coalition is superb, if surely imperfect, and that Johnson's opposition is mostly petty and superficial.     I'm a Huckophile on this one, though I rather like that amendment prohibiting the governor from turning the anti-smoking campaigns into a personal soapbox with free public service announcements, as he's done with ARKids First.         John Brummett's column appears every Tuesday, Thursday, Saturday and Sunday.     This article was published on Saturday, April 8, 2000

Microsoft faces the knife Anti-Trust v. Technology NOW THE JUDGE who found Microsoft a MacroMonopoly is ready to consider remedies, which could involve some drastic surgery. That can't be good news for Bill Gates and his dot.comrades. For the Microlawyers were expected to appeal, appeal, appeal (read delay, delay, delay) till approximately forever, when the case against Microsoft would be made moot by time and technology, or at least till the next administration was in place.     Maybe then Microsoft could hope to take its chances with a Justice Department of a pro-business Republican, George W. Bush, or an attorney general answerable to Father Internet himself, Al Gore.     But hope and the possibility of a settlement spring eternal. Even though Judge Thomas Penfield Jackson now has made official what he'd hinted at some months back in his findings of fact (and guilt).     While it's hard to deny that any company as big and aggressive and all-consuming as Microsoft is a monopoly, and restrains trade almost by its existence, there are some questions about the ruling that almost demand addressing. As U.S. v. Microsoft heads toward appeal, fast-tracked or slow-boated-to-never, here is just one question from an increasingly computerized observer:     Could somebody, somewhere please explain, as one would to a small child, how Microsoft has stifled innovation in the computer business? We wonder this as we write on a laptop computer--a MacIntosh ibook--sophisticated enough to get Internet access without a phone and simple enough for an inky wretch to master.     We wonder this as we lust after one of those Palm Pilots, which are portable wonders that let you tap into the Net and check your e-mail and write stuff, among a bazillion other features. The company, Palm Inc., just went public last month, making millionaires of even more twenty-something entrepreneurs.     We wonder this as we read about Netscape 6, the fastest and most flexible Internet browser yet, a product of America Online, and the latest threat to Microsoft's macro-share of the browser market.     We wonder this as we ponder . . . free Internet service. Faster modems. Built-in modems. Cable hookups that fly you across the web at warp speed. The convenience and possibility of e-commerce. The freedom of it all! For, thanks to modern technology, more than 20 million Americans are now able to work away from the office.     We're not sure how much more of this stifled innovation the computer industry--or its harried consumers--can stand.     HERE'S ONE gentle response to our questions: This case isn't about whether technological innovation would be advanced, retarded, or sent off in some other direction unless Microsoft is restrained. Nobody can be sure what the techno-world would have been like if Microsoft hadn't swallowed it. All such discussions are less law than speculation. There's no way to turn time backwards and see what an alternate world without Microsoft would be like. For the moment, a world without Bill Gates is as imponderable as one without a Rockfeller, Carnegie, or J. P. Morgan--other organizational geniuses who had an uneasy relationship with the Sherman Anti-Trust Act.     This case is about the kind of society we want in the future--one in which the playing field is as level as we can make it, competition as free and open as government can assure, and freedom is a higher value than any concentration of power and capital, however efficient that might seem.     Freedom won this case, as it did against the telephone monopoly, and we must accept its burdens. It may not be easy or convenient being free, but we have to believe it's better than being monopolized.     Another question: Do you sometimes get the impression that some members of the Justice Department did their research on the cyberculture from that cliche of a movie on cable, Pirates of Silicon Valley? (That's the one which portrayed Steve Jobs and Bill Gates as Nutty and Nuttier, Corrupt and Corrupter.) It's hard to argue with the reasoning of His Honor Thomas Penfield Jackson, who came down on the side of competition. Having read his voluminous finding of facts, we can see he now knows computers almost as well as he does the law. But we're not so sure about somebody like Janet Reno, who seems as out of it as she always does.     Listen to the attorney general: "Thanks to this ruling, consumers who have been harmed can now look forward to benefits." How can anybody with even a passing knowledge of, say, computer solitaire make that kind of judgment/ claim/prediction/wild sweep? Which consumers have been hurt where--all those now merrily communicating with each other at warpspeed? Is General Reno declaring war or just saying Open Sesame? Is she talking about the Microsoft case or the tobacco settlement?     THE IDEA of pinpointing those consumers who've been wronged by Microsoft's bundling its operating system and Internet browser sounds about as appealing as herding cats. Billions of cats.     Are we now to look forward to a special session of the Arkansas legislature divvying up Microsoft-settlement money? At last count, 19 states had joined the feds' suit against Microsoft. Surely even Arkansas will crash this party now that it's all but over.     If this trend holds, state governments can blow-off taxes, revenue stabilization acts, budgeting and the dull minutiae of legislating and enter the modern world of government of, by, and for litigation. Sue, settle, then sit back and watch the toupees fly.     The fights always seem to be a little more vicious, a little more petty, a little more grabby, when the money's "free." See all the hands out over at the state Capitol when the tobacco settlement was to be sliced up. What began with such promise--health and welfare for all!--had become a giant barbecue, with every guest grabbing as much as he could. Maybe we should have let Jennings Osborne organize this pig-out. He's had experience. (Is there still time to ask Bill Gates to do a computerized analysis of the state's medical needs?)     A great case produces great caricatures. The public can now choose between Bill Gates as (a) innocent genius, benefactor and martyr or (b) the devil incarnate. He's neither. He's a force of nature in the rich--and we do mean rich--tradition of Rockefeller, Carnegie, or Morgan. Once he used his vision, genius and drive to create a business unlike any other, a vast new monopoly was as certain as the river--the tidal wave--of wealth it has produced, not just for him but for the world.     Bill Gates was simply doing what any Bill Gates would do. That's not an attempt to defend him but to explain him. His trajectory is remarkably similar to the tycoons who, like John D. Rockefeller, also set out to "rationalize" their industry and wound up owning it.     Meanwhile, despite our questions, there's little doubt that Judge Jackson did what he had to do, too. Which is to ensure competition in the computer-technology-information industry.     We still want the best of both worlds--cyber and real. We want government to keep a safe distance as this information revolution continues to spin off jobs and millions. But the feds also have to keep the playing field level--for the Microsofts, the Netscapes, the AOLs and, especially, for the computergeeks tinkering in their garages with a little software and a big dream.     This article was published on Monday, April 10, 2000

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