Robert Bennett

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that reading of the amendments be dispensed with.

Mr. BENNETT

Mr. BENNETT. Madam President, I ask unanimous consent to proceed as in morning business for not more than 10 minutes.

Mr. BENNETT

Mr. BENNETT. Madam President, as one who voted against the air war and called for the suspension of bombing on the grounds that it was not working, I rise to acknowledge clearly, and indeed even joyfully, that we have reached a significant milestone and have turned a significant and most welcome corner in our humanitarian effort to stop the butchery in the Balkans. I congratulate President Clinton, Secretary Cohen and, of course, the men and women of all ranks in the U.S. military for their ability to project American military power for good in a distant land. I also congratulate Secretary Albright for her ability to hold together an occasionally fractious coalition. With the bombing stopped and NATO troops moving unopposed into Kosovo, it is certainly a time for celebration. It is not, however, a time to suggest that the problems of the Balkans are at an end, or even that the end is in sight. There have been many mentions of Winston Churchill in the last few months. I am reminded of one of Churchill's comments from World War II, made as he celebrated America's entry into that war: It is not the end of the war. It is not even the beginning of the end. But it is the end of the beginning. Let us review where we have been, where we are, and what we still have to do before there is peace in the Balkans. First, where we have been. As happy as we are with today's headlines, let us remember that we failed to meet our initial objectives. Secretary Albright told us that we had to bomb to prevent widespread atrocities in Kosovo and a flood of refugees over its borders into neighboring countries. The bombing failed to do that, and the resultant human suffering has been immense and is continuing. Even at this point, let us not deceive ourselves about the effectiveness of the bombing. One of the reasons I was wrong in suggesting that the bombing would not work was that I did not know that the Kosovar Liberation Army would mount a serious offensive on the ground. It failed. But it caused the Serbian military to leave its hidden sanctuaries in order to repulse the Kosovars. Only then, while the Serbian military was engaged in ground action, was the force of NATO air power able to inflict heavy damage in the field. Prior to that, the results of our bombing on Serb military capacity were frustratingly meager. I find it interesting that the KLA offensive was neither foreseen in advance, nor now, in our jubilant mood, widely reported after the fact. Those who claim that the bombing worked all by itself need to take a second look at what really happened. Next, where are we now? The refugees are still not back in their homes, in their villages. Their homes are still not rebuilt. Their economy, which will permit them to feed themselves, is still in shambles. Further, the Kosovar Serbs, as opposed to the Kosovar Albanians, are now in fear of their lives, and a new flood of refugees is flowing north. Their numbers are far fewer than those of the returnees, but the Serbian refugees entering that part of Yugoslavia will swell the ranks of the still-unsettled refugees that came there from Bosnia, where any form of long-term peace is still elusive. The Yugoslav economy--indeed, the regional economy--including neighboring countries such as Romania, is in shambles in no small part because of our attacks on the infrastructure in and around Belgrade. Winter comes early in the Balkans and the prospects of widespread suffering remains high. So what do we still have to do? Our first priority should be the humanitarian relief required to alleviate the suffering in both parts of Yugoslavia, Serbia as well as Kosovo. Hand in hand should be efforts to repair the damage the bombing has done so that the economic activity that is the only hope for self-sufficiency can begin. But our hardest challenge is to keep the killing from breaking out again on both sides. It may be easy for some to say that the Serbs deserve whatever revenge the Kosovar Albanians will mete out, and that they only get what they asked for simply by being Serbs. That is the attitude held by most ethnic groups in the region that got us into this mess in the first place. It should be repugnant to all Americans. All of them should celebrate the ethnic diversity from which each one of us comes. The biggest long-term burden NATO's occupying force bears is the responsibility to see that no new round of ethnic hatred and retaliation takes place, whoever initiates it and whatever its supposed justification. In sum, this is the time to be glad, because, with an unexpected and strong assist from the Kosovar Liberation Army, we made a deal whereby the bombing has been stopped and the rebuilding can start. It is not a time to cry, ``Hurrah, we won,'' and then walk away from the immense humanitarian tragedy we were unable to prevent and to which in some degree our bombing contributed. Above all, it is not a time for us to think there are any easy answers or short-term solutions or that the antagonisms of the region are easily divided into good guys and bad guys. Americans must recognize that we are in Kosovo for a very long haul now and working against very long odds if we are ever going to help the various factions achieve any hope of living peacefully side by side. In our time of congratulations, let us recognize that we are only ``at the end of the beginning.'' I yield the floor. I suggest the absence of a quorum.

Mr. BENNETT

Mr. BENNETT. Mr. President, I am pleased to rise today to introduce the Colorado River Basin Salinity Control Reauthorization Act of 1999. This legislation will reauthorize the funding of this program to a level of $175 million and will permit these important projects to continue forward for several years. I do this because the Colorado River is the life link for more than 23 million people. It provides irrigation water for more than 4 million acres of land in the United States. Therefore, the quality of the water is crucial. Salinity is one of the major problems affecting the quality of the water. Salinity damages range between $500 million and $750 million and could exceed $1.5 billion per year if future increases in salinity are not controlled. In an effort to limit future damages, the Basin States (Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming) and the Federal Government enacted the Colorado River Basin Salinity Control Act in 1974. Because the lengthy Congressional authorization process for Bureau of Reclamation projects was impeding the implementation of cost-effective measures, Congress authorized the Bureau in 1995 to implement a competitive, basin-wide approach for salinity control. Under the new approach, termed the Basinwide Program salinity control projects were no longer built by the Federal Government. They were, for the most part, to be built by the private sector and local and state governments. Funds would be awarded to projects on a competitive bid basis. Since this was a pilot program, Congress originally limited funds to a $75 million ceiling. Indeed, the Basinwide Salinity Program has far exceeded original expectations by proving to be both cost effective and successful. It has an average cost of $27 per ton of salt controlled, as compared to original authority program projects that averaged $76 per ton. One of the greatest advantages of the new program comes from the integration of Reclamation's program with the U.S. Department of Agriculture's program. By integrating the USDA's on-farm irrigation improvements with the Bureau's off-farm improvements, very high efficiency rates can be obtained. Because the cost sharing partners (private organizations and states and federal agencies) often have funds available at specific times, the new program allows the Bureau of Reclamation to quickly respond to opportunities that are time sensitive. Another significant advantage of the Basinwide program is that completed projects are ``owned'' by the local entity, and not the Bureau. The entity is responsible for performing under the proposal negotiated with the Bureau. In 1998, Bureau of Reclamation received a record number of proposals. While still working through the 1998 proposals, the Bureau also sought out 1999 proposals which are just now being received and evaluated. Although, not all proposals will be fully funded and constructed, funding requirements for even the most favorable projects surpasses the original $75 million funding authority. In fact, if all proposals go to completion and are fully funded, the Bureau might find itself in the position that no future requests for proposals can be considered until Congress raises the authorization ceiling. In an effort to prevent that from occurring, I am introducing this legislation today. I hope my colleagues will join me in this effort and I look forward to working on this legislation with them.

Mr. BENNETT

Mr. BENNETT. Mr. President, I am pleased to rise today to introduce the Colorado River Basin Salinity Control Reauthorization Act of 1999. This legislation will reauthorize the funding of this program to a level of $175 million and will permit these important projects to continue forward for several years. I do this because the Colorado River is the life link for more than 23 million people. It provides irrigation water for more than 4 million acres of land in the United States. Therefore, the quality of the water is crucial. Salinity is one of the major problems affecting the quality of the water. Salinity damages range between $500 million and $750 million and could exceed $1.5 billion per year if future increases in salinity are not controlled. In an effort to limit future damages, the Basin States (Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming) and the Federal Government enacted the Colorado River Basin Salinity Control Act in 1974. Because the lengthy Congressional authorization process for Bureau of Reclamation projects was impeding the implementation of cost-effective measures, Congress authorized the Bureau in 1995 to implement a competitive, basin-wide approach for salinity control. Under the new approach, termed the Basinwide Program salinity control projects were no longer built by the Federal Government. They were, for the most part, to be built by the private sector and local and state governments. Funds would be awarded to projects on a competitive bid basis. Since this was a pilot program, Congress originally limited funds to a $75 million ceiling. Indeed, the Basinwide Salinity Program has far exceeded original expectations by proving to be both cost effective and successful. It has an average cost of $27 per ton of salt controlled, as compared to original authority program projects that averaged $76 per ton. One of the greatest advantages of the new program comes from the integration of Reclamation's program with the U.S. Department of Agriculture's program. By integrating the USDA's on-farm irrigation improvements with the Bureau's off-farm improvements, very high efficiency rates can be obtained. Because the cost sharing partners (private organizations and states and federal agencies) often have funds available at specific times, the new program allows the Bureau of Reclamation to quickly respond to opportunities that are time sensitive. Another significant advantage of the Basinwide program is that completed projects are ``owned'' by the local entity, and not the Bureau. The entity is responsible for performing under the proposal negotiated with the Bureau. In 1998, Bureau of Reclamation received a record number of proposals. While still working through the 1998 proposals, the Bureau also sought out 1999 proposals which are just now being received and evaluated. Although, not all proposals will be fully funded and constructed, funding requirements for even the most favorable projects surpasses the original $75 million funding authority. In fact, if all proposals go to completion and are fully funded, the Bureau might find itself in the position that no future requests for proposals can be considered until Congress raises the authorization ceiling. In an effort to prevent that from occurring, I am introducing this legislation today. I hope my colleagues will join me in this effort and I look forward to working on this legislation with them.

Mr. BENNETT

Mr. BENNETT. I am happy to yield.

Mr. BENNETT. I yield to the Senator.

Mr. BENNETT. Mr. President, I am reluctant to get into this fight because, as I said before, I am unburdened with legal education. Occasionally when I hear these legal debates, it makes me grateful for the fact that I did not go to law school. However, I feel the need to stand and comment on some of the things that have been heard and some of the statements that have been made with respect to this particular amendment. It is my understanding that anybody who commits an intentional act of fraud has no relief as a result of this bill. If anybody can contradict that, I will be happy to hear it, because I do not want, in any way, to be part of supporting a bill that protects people from intentional fraud. That is not my purpose. I must stand, as the chairman of the Senate Special Committee On The Year 2000 Technology Problem, and tell my colleagues that this is a unique situation. This has the potential of creating a unique chain of events that requires a unique solution. That is the purpose of the McCain-Dodd-Wyden bill, and that is why the bill has a 3-year sunset in it. We are not changing the world forever. We are crafting, as carefully as we can, a piece of legislation to deal with the unique circumstance of the Year 2000.

Mr. BENNETT. I see my colleague from Oregon wishes to respond to this and perhaps has a better legal handle on it than I do. My own layman's reaction would be not to sign a contract that didn't have a provision for fraud in it, as a businessman.

Mr. BENNETT. I yield to the Senator from Connecticut.

Mr. BENNETT. I thank the Senator from Connecticut. I realize the Senator from Massachusetts wants to engage in this. I ask unanimous consent that such time as is taken up by the Senator from Massachusetts be charged to the time of the Senator from Massachusetts rather than charged against my time. With that understanding, I am happy to yield to the Senator further.

Mr. BENNETT. Mr. President, again I witness this clash between great legal minds. Yet, I am informed by a number of other legal minds the Kerry amendment would, in fact, destroy the effect of the bill. As a businessman, I always ended up asking my legal team whether it was appropriate for me to sign a particular lease or contract. I had to learn to depend on good lawyers. I think we have hired good lawyers in this situation and I am accepting their advice. I am moved by the eloquence of my friend from Massachusetts, but I shall not vote with him. I want to once again focus on what it is we are doing here. We are dealing with a unique situation the likes of which we have never seen in international commerce and probably never will see again. That is why specific legislation is necessary. Let me go back to a statement made by my friend from Massachusetts in the earlier debate when he said: We want people to be driven to examine their inventory to make sure it is compliant, but if the liability is limited they will not do that. This is not a question of examining your inventory to make sure it is compliant. We are already getting examples of people who have done everything prudent and possible to make sure that things were compliant with Y2K, only to discover after they had done everything prudent that it still didn't work. There are bugs hidden in this kind of problem that cannot in reasonable fashion be discovered in advance. There is a presumption on the part of the Senator from Massachusetts that those bugs were there because of some misrepresentation or fraud. My concern is that there will be that presumption on the part of a lawyer bringing suit if those bugs occur in equipment that at one time or another has passed through the hands of a very wealthy corporation. This is where proportionality of joint and several liability comes in. If a corporation with deep pockets has at one time or another had its hands, figuratively, on a product where such a Y2K glitch occurs, there will be an obvious invitation to sue that corporation and then settle out of court for a large settlement because the corporation will decide, on business terms, it is cheaper to settle than proceed with the suit. I have had the experience as CEO of a company of settling a lawsuit where I felt the merits were firmly on our side but where the economics said you do your shareholders a better service by taking this settlement than you do by going to court. I have had personal experience with that. I know how those kinds of decisions are made. In a situation where there will be unforeseen consequences and products that have passed through many hands in order to finally get to where they go, the temptation to sue the deep pockets will be overwhelming unless we pass this legislation. Every lawyer that I have spoken to who has examined the legislation from that point of view has said you cannot adopt the Kerry amendment. It will gut the legislation. It will render the whole thing moot, as far as we are concerned. So I stand here not as a lawyer but as a businessman who has now, for 3 years, immersed himself in the Y2K issue and, frankly, who feels he understands that issue fairly well. I call on my colleagues to defeat the Kerry amendment, to pass this legislation, and to give to American firms--not just high-tech --give to American firms that will be involved in products that will suffer from Y2K problems the ability to solve those problems without the specter of huge lawsuits and huge settlements hanging over them. Let me go back to one thing I said and repeat it. As I have been immersed in this issue for the period of time I have, I have come to realize that it is not strictly a high-tech issue. Yes, the high-tech community has been the most visible in pushing for this legislation. But they are by no means the only part of the American economy that will be affected by this issue. There will be municipalities that can be sued. There will be cities around this country that will suddenly discover that essential services do not work, that will have done everything they thought reasonable to get there only to have some glitch that they were unaware of come out of the blue. Then the lawsuits will start. The question will be who was in the supply chain to produce whatever the device is that failed. Let's see who has the deepest pockets. It may not be a high-tech company at all. States are scrambling now to try to pass their own limited liability. I think that is a mistake. I think the Federal legislation makes a lot more sense. But let us understand, once again, we have a unique situation here. We already have anecdotal evidence that shows us how capricious it can be, in spite of the greatest effort to remediate and be in control. We do not want to turn this into a playground for plaintiffs' lawyers who want to take advantage of the class action circumstance, sue the deepest pockets, take a settlement, and walk away in a way that is of no advantage to anybody. If we are making a mistake in this bill, if as we draft it there is mischief, it is not permanent mischief because the bill is gone at the end of 3 years. Everything is over at the end of 3 years. No one--no one--will make any attempt to extend it. Certainly I will not. By virtue of what the voters of Utah did, I will be here 3 years from now, if I am still alive, and I will certainly oppose any extension of this bill. I would think everybody would oppose any extension if somebody were to bring it up. We are facing a unique situation. We have a piece of intelligently crafted legislation to try to deal with that situation, and we should not let ourselves get convinced that we are somehow changing the basis of American jurisprudence for all time as we try to take a prudent step in this particular circumstance. I reserve the remainder of my time.

Mr. BENNETT. Will the Senator yield? Mr. President, I suggest the Senator is reading from an old version. There is no section 110 in the current----

Mr. BENNETT. Mr. President, earlier today Senator McCain filed an amendment No. 612 to the bill on behalf of Senator Murkowski. It is my understanding this amendment is acceptable to both sides. Therefore, I ask unanimous consent to call up the amendment.

Mr. BENNETT. For the information of all Senators then, the next vote will occur at 6 in relation to the Kerry substitute. Amendment No. 612 (Purpose: To require manufacturers receiving notice of a Y2K failure to give priority to notices that involve health and safety related failures)

Mr. BENNETT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BENNETT. I thank the Senator.

Mr. BENNETT. Mr. President, with some trepidation, I am going to read some legal language. As a layman, I have a hard time with this, but I will do my best and I think it is fairly clear. Under section 4 of the act: (d) Contract Preservation.-- (1) In general.--Subject to paragraph (2), in any Y2K action any written contractual term, including a limitation or an exclusion of liability, or a disclaimer of warranty, shall be strictly enforced unless the enforcement of that term would manifestly and directly contravene applicable State law embodied in any statute in effect on January 1, 1999, specifically addressing that term. State law is preserved. State law is not overridden in this catchall provision, if you will, at this stage. At this point, I will quit trying to practice law.

Mr. BENNETT. Mr. President, I will make one additional comment. Mention was made of Andy Grove. The Senator from Connecticut and the Senator from Oregon and I, along with several other Senators, had breakfast with Andy Grove this morning. Just so the record is clear, the subject of the Kerry amendment came up in that discussion, and Mr. Grove, if I am quoting him correctly, said that his lawyers felt that the Kerry amendment would destroy the bill and leave it with no value. Indeed, my memory says he said that if the Kerry amendment was adopted, they would be better off without any bill. I ask the Senator from Connecticut if he has the same memory or if I am embroidering things.

Mr. BENNETT. Mr. President, I suggest the absence of a quorum and ask that the time be charged equally against both sides.

Mr. BENNETT. Mr. President, I will make one observation, and then I have a motion. We hear again on the floor the threat of a Presidential veto. We hear that increasingly, as if the President should write legislation and we should supinely accept whatever the President recommends, that our function is simply to listen to the President, pass legislation that he announces in advance is acceptable and, thereby, abdicate our legislative responsibilities. I am perfectly willing to risk a Presidential veto. I think that is the appropriate posture for a Member of the Senate. I ask consent that following the debate in relation to amendment No. 610, the Senate proceed to an amendment to be offered by Senator Murkowski or his designee and no other amendments in order prior to 6 p.m., and that at 5:50, there be 10 minutes for explanation followed by a vote in relation to the Kerry amendment No. 610.

Mr. BENNETT. Mr. President, I am prepared to yield back all further time on the Kerry amendment, if Senator Kerry is prepared to yield back.

Mr. BENNETT. Mr. President, how much time remains?

Mr. BENNETT. Mr. President, I reserve the remainder of my time.

Mr. BENNETT. There is no objection.