Fritz Hollings

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, the Senator has come to the Senate not just as a practitioner, but as a brilliant one, as you can tell from his comments here on the floor of the Senate this afternoon. Is it not a fact that what this really does is create disincentives to produce a good Y2K-compliant product--isn't that correct? If companies know they do not have to worry about making their products competitive and reliable, they have no incentive to make a good product. In fact, removing any threat of litigation will remove any need for technology companies and businesses to ensure that their products and systems are ready to handle the Y2K problem. I have been asked by none other than Jerry Yang, the head of the Internet company Yahoo, to oppose this bill, because Mr. Yang said he will use the fact that companies do not have Y2K-compliant computers when he competes with them. So, isn't it the fact that when you get this kind of obstacle course of legalities companies will say: We do not have to worry about the quality of the product or whether or not it is Y2K compliant, because by the time they can finally get to me, and everything else like that, on a cost/benefit basis it is better for me to get rid of all these old noncompliant models. I don't mind paying a few lawyers to protect me on these hurdles here. Isn't that the case?

Mr. HOLLINGS. Will the distinguished Senator yield?

Mr. HOLLINGS. Will the distinguished Senator yield?

Mr. HOLLINGS. I yield the floor.

Mr. HOLLINGS. That is what ``Business Week'' just put out a month ago in its March 1 issue. The marketplace was taking care of what problems could ensue come January 1 of the year 2000. All of the blue chip corporations--grocery, manufacturers, automotive dealers--everybody is really concerned if they don't perform and have Y2K compliance, they are going to lose the business. The blue-chippers have come around and told their suppliers and distributors and everything else: Unless you become Y2K compliant, we are going to find a new sales force and distributors and otherwise to handle our product. Really, that is the conclusion to which the ``Business Week'' article came. In fact, the Y2K problem is going to clean out the laggards and bring out nothing but good, quality producers. It is not going to be a problem come January 1, because the market is behaving effectively. We get extremes like this legislation because the Chamber of Commerce gets down there and starts talking about a trillion dollars' worth of lawsuits, and we see entities coming in not knowing really what is at issue. The fact is, then having said that, they are way off base in the whole thing with respect to the market itself. And as the Senator indicates, the responsible producers in America, they are the best of the best because they are competing internationally with the Japanese and everything else. So we have the best producers and they will comply. They want to comply because that is good business. They don't want to get bogged down with lawyers and everything else like that. But a few companies want to have the political crowd in Washington throw up an obstacle course for consumers and small businesses, so that those companies do not have to worry about making good, reliable, Y2K- compliant products.

Mr. HOLLINGS. Isn't that the case? That is why you find the extremes of tort law provision in here, and joint and several? The drive really is not to take care of the Y2K problem but to take care of what they call the lawyer problem in business. It has brought about the most responsible production in the entire world. We have quality production. We have safe articles on the market. On product liability and everything else, they have been coming after us for 20 years. Now they have all joined together, of all people not to hurt, just injured individuals with bad back cases like you and I have handled, but on the contrary, little small businesses, individual doctors who have to have a computer and have to keep up with their surgery and everything else of that kind. I cite that because that is the testimony we had before the Commerce Committee. An individual doctor, in 1996, bought a computer. They bragged how it was going to last for 10 years and be Y2K compliant. And instead of being Y2K compliant, it was not. He asked for it to be repaired. He went twice to do it. They told him, you might have bought it for $16,000, but it is going to cost you $25,000. He didn't have the $25,000 to make it compliant. He finally brought a lawsuit, and the computer industry on the Internet picked it up and before long he had $17,000 against this particular supplier. They came around immediately and said: We will do it for free for everybody and pay the lawyers' fees. That is what we are trying to avoid. But I do congratulate the Senator on his very cogent analysis and commonsensical approach and experienced judgment that he has rendered here this afternoon on this particular issue.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, my distinguished chairman continues to say let's talk, let's vote, let's move along. He thinks it is a procedural question. I guess, in a way, it is when it comes to joint and several. Mr. President, there is an old story told about the days when they used to block minorities from voting down in Mississippi. A gentlemen presented himself at the poll and the poll watcher showed him a Chinese newspaper. These were the days of the literacy tests in order to be able to vote. He presented him with a Chinese newspaper and he said, ``Read that.'' The poor voter takes it and turns it around different ways and says, ``I reads it.'' The poll watcher said, ``What does it say?'' The poor minority says, ``It says: Ain't no minority going to vote in Mississippi today.'' Now, Mr. President, in a similar vein, when you have been in this 20 years, like Victor Schwartz down there at the NAM, when you have been in speaking panels before the manufacturers groups, when you have seen every trick of the trade that they have had to repeal the 10th amendment and take away from the States the administration of the tort system, and you know that there are the strong States righters but they are willing to do this, and when you know there is a nonproblem--I emphasize ``nonproblem" --in the sense that there have only been 44 cases brought and over half have already been disposed of--some 10 others have been settled, and only 8 or 9 are pending--and you know that here we have a contract case, not a tort case, and you have to have privity of contract under joint and several in contract cases. But you know this extreme strain about punitive, about joint and several, and all of these other hurdles they put in there to discourage anybody bringing a suit, setting precedence, if you please, in the tort field, then like the poor voter that ``can read'' the Chinese newspaper, I can read S. 96. That is right. I can read the McCain-Wyden amendment. What that says is, we don't care about Y2K, but we do care about reforming torts and federalizing it and taking the richest, most capable crowd in the world and giving them all kinds of rights and defenses and privileges and take away from middle sector, the small businessman, the small doctor. We put into the Record, Mr. President, where an individual doctor up in New Jersey--he came before the committee--bought this particular computer in 1996. He talked about the salesman who bragged in terms that it would last 10 years. Like the old adage regarding the Packard, he said, ``Ask the man who owns one. Go and see these. They will last for years. This will take you into the next century.'' And then he finds, of course, that this past year it broke down. It didn't work and he could not get his surgical appointments straight, and otherwise. So he called the salesman and the company, and they absolutely refused. After several weeks he writes a letter and demands, and they still refuse. A couple of months pass and he gets an attorney. When he gets the attorney, at first they don't respond. But somehow the attorney, or others, had the smarts to put it on the Internet. The next thing you know, they had 17,000 doctors who were similarly situated, and the computer company immediately settled and replaced them free. When the demands were first made, they said, ``Yes, we can fix it for you for $25,000,'' when the instrument itself, the computer, only cost $13,000 in 1996. But to fix it was $25,000. He didn't, of course, have the $25,000. So all of those cases were settled to the satisfaction of both parties, the computer company, and everything else. So these are not bad back cases, or some that are indeterminate with respect to injury, pain, and suffering, and a sentimental kind of case of a person having lost his job, in that sense, and all that, where you get poor people injured in a wreck; but, on the contrary, responsible business people who operate by way of contract with the company. You see all of these tort things superimposed and you hear them in the conferences say it is nonnegotiable, there is a nonnegotiable item here, joint and several; it is nonnegotiable because under the chairman's onslaught here, it is, ``Let's move, let's vote, let's vote.'' I responded to him yesterday. I am a minority of a minority. I am trying to make sense out of a bum's rush. They have all the organizations. I have been talking to the trial lawyers about this thing. I know all of them, and they have been big friends of mine, and they did respond handsomely last year in the campaign. But I have been in it 20 years. In the early eighties, in the Presidential race and everything else, I still pleaded the cause and I got no help. So I have a track record of not just taking a position to help good friends in the trial business, but I have the greatest respect for all those friends, because they are there for the injured parties. They are the ones setting the record on health. These trial lawyers have done more to save people from cancer than Koop and Kessler put together. I have been on the floor 33 years now, and we could not get anything moving on cancer and smoking. Now we have it. Not only on account of dollars, not only on account of the Cancer Institute, not only on account of the American Cancer Society, all leaders that they are with concerns in this field, but on account of trial lawyers. I see them institute the Environmental Protection Agency and institute the Consumer Product Safety Commission. When you see those cars recalled, yes. That trial lawyer, Mark Robinson, out there in San Diego, back in 1978 got a $128 million verdict. It was $3.5 million actual, but $125 million punitive. He never has collected a red cent of the $125 million punitive. But he has brought to the automobile manufacturers a conscience rather than a cost-benefit study to just write it off and let them pay and pay the lawyers, and pay the doctors, and pay for the injuries, or beat the case on a cost-benefit study. On the contrary, there was one company just last week that recalled another million cars. You see these car recalls. That is my trial lawyer friends. I am very proud of them. But in this particular case I am trying to protect on the one hand that small doctor, that small businessman, or, on the other hand, what we are trying to do is protect the States and the administration of tort law. They talk about the ``glitches''--the ``glitches'' and ``deep pockets'' and ``deep pockets.'' We have at this minute, as I speak, on the floor of the Senate, glitches. Everybody has a computer. It comes up again and again with a glitch. You learn how to get it fixed. Nobody is running down to the courthouse. There were only 40 more cases this past year. Deep pockets--you have people running around here. They had a gentleman come in here from America Online. I saw in the USA Today his income last year --just annual--income $325 million. He has deep pockets. But nobody is suing him. He is a wonderful, brilliant individual who deserves every dollar he makes. I am for him. That is the American way. But there are deep pockets in this technology computerization industry. And there are glitches. Don't give me this stuff about January 1 glitches, glitches all of a sudden, and that we have to change the whole tort system. You can go ahead and get your computer now. As Business Week shows, they are demanding that the small businessmen come about with the changes in their equipment and become Y2K compliant, or else they are going to run out of suppliers and other distributors that will be Y2K compliant. They are in business. They are not in the law game that the Chamber of Commerce is in downtown. That is their political gain--to get them, pile on, find a nonproblem, but find the organizations, go tell all of them, and say, ``Do you believe in tort?'' ``Yes. I believe in tort reform.'' ``Write your letters to the Senators and talk about $1 trillion''--outrageous estimations. There is not going to be any such thing. Everybody knows it. I am happy today to receive from the White House a ``Statement of Administration Policy.'' ``This statement has been coordinated by OMB with the concerned agencies.'' Mr. President, I ask unanimous consent to have it printed in the Record.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I was compelled momentarily to object to the request of our distinguished leader that the amendments be germane. I think a word is in order to understand my objection. What happens is, No. 1, we have tried our dead-level best to compromise and move this particular piece of legislation along. My Intel friends wrote us a letter to the effect that there were four demands. I contacted Mr. Grove by phone and told him that of the four, I could agree to the waiting time period, to the materiality and the specificity, but the joint and several went to the heart of tort law and trials and I could not agree to that. My understanding is and I am willing to fill out the record on this, our Chamber of Commerce friend, Tom Donohue and NAM downtown, Victor Schwartz, have been working this thing for years. When we are asked about germane amendments, I think of the opportunity that I have in this perilous position, so to speak, with respect to the legislation. Realizing that they are willing to amend the Constitution, article VII, taking away a trial by jury, and they are willing to amend article X of the rights of the States with respect to tort law, then I thought maybe at the moment it would be good to amend article II with respect to the bearing of arms. Yes, Mr. President, I do have an amendment, and it is at the desk. It is very germane to our interest in real things. We are not really concerned at this minute, because the system is working. According to Business Week, according to the testimony, according to the evidence, according to the editorials, our tort system is working to protect doctors, small business folks and everyone else. What is not working in Colorado is this inordinate number of pistols and firearms in our society. I came to the Senate as a strong-headed States righter and still try my best to follow that principle because I believe in it very, very strongly. However, I have had to yield with respect to that particular position when it came to the Saturday night specials. We had the FBI come with that. The States could not control that. We had the matter of assault weapons, and the States could not control that. Then watching over the years, the States' response, instead of going in the direction of control, they actually are in the direction of running around with concealed weapons. All the States now are going in that direction. That is why the NRA, the National Rifle Association, was ready to meet in Denver last week. I figured we ought to bring this up for immediate discussion. Rush to judgment? No; no. I have been there 33 years. I have watched this debate, I have listened, and I watched our society. It is not a rush to judgment. It is a judgment that I had a misgiving about over many years waiting on the States to respond. I put at the desk the Chafee amendment relative to handgun control. I will be prepared later on, if we are allowed and we get into the debate, to bring that up, because I think it is very timely. It is not a rush to judgment. It is far more important to our society. According to Computerworld, according to the Oregonian, according to the New York Times, according to the witnesses, it is far more important than Y2K which may occur 7 or 8 months from now. Come; come. We know good and well that everybody is getting ready. We have, in a bipartisan fashion, set aside the antitrust restrictions so that they could collaborate. We have positive evidence of a young doctor in New Jersey who in 1996 bought a computer, and the salesman bragged how it can last for more than 10 years, that it was Y2K compliant. He gave references. By happenstance, they did go to one of the references and found out it was not Y2K compliant. The young doctor then said: I need to get this thing modified and made compliant. The company that sold it to him said: Gladly, for $25,000. The main instrument itself was only $13,000. What did he do? He wrote a letter and asked, and then he asked the second time. Months passed. He finally went to a lawyer. People do not like to go to lawyers and get involved in court. I hear all about frivolous lawsuits, frivolous, frivolous. Nobody has time for frivolous lawsuits. The real lawyer does not get paid unless he gets a result. Finally, he did get a lawyer, and the lawyer was smart enough to put it on the Internet. The next thing you know, there were 17,000 doctors in a similar situation with the same company, and they finally reached a settlement and got it replaced and made compliant--free. That was all that was necessary. The system is working now. There have been 44 cases. Over half of them have been thrown out as frivolous; half of the remaining cases have been settled. There are only eight or nine pending Y2K cases. The problem is real. You do not have to wait if you are going to have those supplies. It is like an automobile dealer faced every year with a new model and has to get rid of the old. You will find some of the various entities will come around and offload and misrepresent. That is why we have the tort system at the State level, and that is why it works, and that is why we have this wonderful economic boom. There is a conspiracy. They call it a bunch of associations that have endorsed the legislation. They have come around now and said this is a wonderful opportunity, we can just ask them for tort reform, and here it is going to save them from lawyers and frivolous lawsuits. If I was an innocent doctor in regular practice with no time to study and pay attention to these matters, I would say, ``Sure, put me on, that sounds good to me. I am having troubles enough now with Medicare and HCFA and all of these rules and regulations made ex post facto about charges for my particular treatments.'' That is why it all builds and it mushrooms on the floor of the Senate. The Senator from South Carolina has been in the vineyards now 20 years on this one issue relative to trial lawyers and tort reform. He can see it like pornography. You understand it and know it when you see it, and I see this. I was constrained on yesterday to not only put up the Chafee amendment relative to gun control, but more particularly, Mr. President, with respect to the violence in the schools. I know one of the causes. I have been fighting in that vineyard all during the nineties. We have had hearings on TV violence, and we have had study after study after study. They put us off again and again with another study. So in the Congress before last, we reported it out of committee 19 to 1 on barring gratuitous violence in these shows, excessive gratuitous violence. When you run a Civil War series, necessarily you are going to have to have violent films and shots made and scenes that will appeal. But we got into the excessive gratuitous violence that they control in Europe, down in New Zealand and Australia. They use the one example, of course, in Scotland where they had the poor fellow who was estranged and insane come in and shoot up the little children. But they don't have this happening in Arkansas like it did or happening in Kentucky like it did. You can see this occurring over the years. Monkey see, monkey do-- youngsters emulate and they see more than anything else, not excessive gratuitous violence, but no cost, no result, no injury to the violence. Seemingly, it happens and you move right on. They become hardened. Then they go to the computer games shooting each other. I called that bill up the Congress before last. We got it reported to the floor. I went to my friend, Senator Dole, who was running for President. He just returned from the west coast, and he had given the producers a fit. He said, ``You have to act more responsibly.'' I said, ``Bob, why don't I step aside and you offer the bill and let it just be the Dole-Hollings bill? It is out here and reported. You put up one. You are the leader, and we can get a vote on that right quick.'' We got a 19-to-1 vote in the committee. I never did get a response. So I put it in again, and in the last Congress it was reported out 20 to 1. But I cannot get the distinguished leader who wants to be oh so reasonable and everybody working together, and let's don't rush to judgment on TV violence--I have a judgment, and it is not a rush to it. It has been learned over the many, many years, looking at the experience of other countries, looking at the need in our society, having listened to the witnesses, the Attorney General saying this would pass constitutional muster with respect to the freedom of speech. I wanted to bring that up. That amendment sat at the desk. That is important, far more important than Y2K. And otherwise we have hard experiences. We Senators do get home from time to time, and we do politic. And it was about 4 years ago when I got back to Richland County where I met my friend, the sheriff, Senator Leon Lott. And he said, I want to show you a school out here that was the most violent, was infested with drugs and trouble and everything else of that kind. He said, Senator, I took one of your cops on the beat. I put him in the classroom, in uniform, teaching classes, law, respect for the law, the penalties in driving for young folks coming along, the penalties, and why the controls in relation to respect and the severe penalties relative to drugs, so they would understand. Now, that was in the classroom. He was not in the parking lot waiting for somebody to steal a car. Rather, he was teaching respect for the law. And then, in the afternoon, this particular officer was associated with the athletic activities, and in the evening with the civic activities. He became a role model. I say this advisedly because I think about that poor security officer who did not know from ``sic em'' out there in the Columbine school in Colorado. Here they could unload pipe bombs, all kinds of pistols, all kinds of this, that, and everything else, like that going on the Internet, running down the halls in trench coats, butt everybody out of the way, and everything else. They were surprised by what happened. So, yes, I have an amendment at the desk relative to our safe schools safety initiative because Senator Gregg, the chairman of our Subcommittee on State, Justice and Commerce--we put $160 million in the appropriations bill last year, and it is being used and employed with tremendous success all over the country. The emphasis should be not as I heard on TV last night, where they said this law enforcement officer would be directly connected with law enforcement; I want him connected with the students. I want him to become a role model. I want him to understand and know the students and know the teachers. And the teachers know when they have a troublemaker, or whatever it is--a poor lad maybe does not have a mama or does not have a daddy, he is totally lost, so he brings about all kinds of extreme activity to get recognition. But that officer can work. And we also added in counseling. I cannot have him do all the counseling and all the role modeling and everything else at once, as well as law enforcement, as well as instruction. So we included, after the advice from hearings, that we put in counseling; and we got a measure. It is on the statute books. It ought to be embellished and enlarged. These are the kinds of things we ought to be talking about this afternoon rather than this bum's rush about a crisis that is going to happen 7 months from now. Come on. Here it is happening right underneath us and all we do is pray. We are the board of directors of corporate United States of America, and we are flunking our particular duties; we cannot pay any bills. We talked all last week--and it is still on the calendar right now, and regular order--of saving 100 percent of Social Security, a lockbox. Then I heard instead the distinguished leader say, oh, no. He said, this money we are going to add on to the President's request for Kosovo--another $6 billion. When asked, where is it going to come from, he said, from Social Security. The truth of the matter is, they say that is the only surplus, but it is not. Social Security is $720 billion shy. And with the estimation-- and I have it by the Congressional Budget Office--at the end of September this year we will owe--not surplus--Social Security $837 billion, because what we have been doing is we have been paying down the debt. It is like taking two credit cards, having a Visa card and MasterCard, and saying, ``I'll pay off my MasterCard with the Visa card. It looks pretty good for the MasterCard debt--the public debt-- but it increases the Visa debt over here--it increases the Social Security debt. So it has. And we owe Social Security $837 billion. The $137 billion in excess of what is required to be paid out this particular year is not surplus. Under the law, 13301 of the Budget Act, it should go in reserve for Social Security for the baby boomers, but we are all talking about; oh, the President; oh, the Congress; no, the Congress; no, the President. Nobody wants to get a plan to save Social Security; and all the time we are stealing, we are looting the fund. It is a shame. It is a show. It is a spin. It is the message nonsense that you have up here in the Senate. So let's get real now and let's get these issues out. Let's talk about handguns. Let's talk about Kosovo. Let's talk about TV violence. We have some real problems. Let's talk about paying the bill, and not any ``Mickey Mouse'' of one day it is going to be a lockbox and no one can get to it and 48 hours later saying, no, no, I'm going to use that lockbox for a $12 billion payment on Kosovo. We have to get honest with the American people. I yield the floor. Mr. WYDEN addressed the Chair.

Mr. HOLLINGS. I object.

Mr. HOLLINGS

Mr. HOLLINGS. This letter is addressed to my staff, Mr. Moses Boyd. It says: Dear Mr. Boyd: Thank you for speaking with me earlier. Thirteen (13) of the 44 Y2K lawsuits that have been filed to date have been dismissed entirely or almost entirely. Twelve (12) cases have been settled for moderate sums or for no money. The legal system is weeding out frivolous claims, and Y2K legislation is therefore unnecessary. Thirty-five (35) cases have been filed on behalf of corporate entities, such as health care providers, retailers, manufacturers, service providers, and more. Nine (9) cases have been filed on behalf of individuals. This trend will continue. Thus, the same corporations that are lobbying for Y2K legislation may be limiting their own rights to recover remediation costs or damages. I have studied the Y2K problem carefully from the legal perspective, and have written a book entitled ``Litigating Year 2000 Cases,'' which will be published by West Group in June. I frequently write and speak about the subject. I do not represent any clients that have an interest in the passage or defeat of any proposed Y2K legislation. Feel free to call me, should you have any questions. Thank you very much. Very truly yours, Ronald N. Weikers, Attorney at Law, Philadelphia, Pennsylvania. Mr. President, there are things in here to emphasize. One is: ``I do not represent any clients that have an interest in the passage or defeat of any proposed Y2K legislation.'' And I emphasize that his book will be published by the West Group in June. The month after next, in about 5 or 6 weeks, this book will be coming out. I can tell you as a practicing attorney that the West Group is not going to publish any partisan political book or edition. It would not sell to the lawyers on both sides. We like to look up and find the authorities, not political arguments. The West Group is in that particular field professionally of documenting in a research fashion the matter of Y2K cases in this particular interest. I can tell you right now they have pretty good evidence about what has been occurring. What has been occurring is best evidenced by the testimony of Dr. Robert Courtney before the Committee on Commerce, Science, and Transportation on February 9 on S. 96, the Y2K Act. I ask unanimous consent that his testimony be printed in the Record.

Mr. HOLLINGS. One line in the article reads, Sponsoring GOP Senators say this bill would provide incentives for solving technical issues before failures occur, but in fact it does just the opposite. It eliminates the threat of lawsuits as a negative incentive for companies that might otherwise neglect their responsibilities in addressing their Y2K problems or reimbursing consumers for their losses. Federal legislation that overrides State courts is a serious infringement on States' rights that merits only rare application, while a massive computer meltdown meets that criteria. Congress passed the tightly- crafted bipartisan bill to help companies work through the problem. As you can see from the Business Week article, they worked through that problem. Mr. President, there was some interesting testimony that we received before our committee a few weeks back from a Dr. Robert Courtney. It is talking about the cases. Incidentally, I ask unanimous consent to print in the Record a letter of yesterday from the Honorable Ronald N. Weikers.

Mr. HOLLINGS. Mr. President, I am reading page 30. The language there--the last 3 lines; 23, 24, and 25--``The defendant is not liable unless the plaintiff establishes that element of the claim in accordance with the evidentiary standard required,'' which is the greater weight by the preponderance of the evidence. That is lined out. And written--and I understand in Chairman McCain's handwriting--here, ``by clear and convincing evidence.'' Again on page 31 of the particular bill under consideration, on lines 19 and 20, ``in accordance with the evidentiary standard required'' is lined out; and inserted in lieu thereof ``by clear and convincing evidence.'' That is why I addressed it that way. That is what we have before us. I thank the Chair.

Mr. HOLLINGS. Mr. President, I ask unanimous consent I may address the Senate for 1 minute.

Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order for the 12:30 recess be extended 10 minutes, until 12:40.

Mr. HOLLINGS. I do not want to mislead. As I understand, as of this morning my staff contacted Mr. Emery. And they said that the AMA is not openly opposing the legislation, but if there is going to be legislation, they want to be taken care of. They want all the tort things to take care of them, too. Mr. WYDEN addressed the Chair.

Mr. HOLLINGS. Mr. President, this is dated March 4, 1999: Several specialities have called to ask about the American Medical Association's (AMA) position on H.R. 455 and S. 461. The AMA is opposed to this legislation which would limit Y2K liability. I've attached a copy of testimony the AMA presented to the Ways and Means Committee last week on Y2K. I call your attention to page nine of that testimony where we address our specific concerns with this type of legislation. I ask unanimous consent to have printed in the Record that testimony which was prepared before the committee on the House side.

Mr. HOLLINGS. This article says a potential crisis is no time to abrogate legal rights. They come out in opposition of this particular legislation. My colleague from Oregon says that has all been cleaned up by his particular amendment. Not at all. I ask unanimous consent an article from the Oregonian, dated March 22, be printed in the Record.

Mr. HOLLINGS. I ask unanimous consent to have printed in the Record an article entitled ``Liability for the Millennium Bug'' from the New York Times, dated April 26. The being no objection, the article was ordered to be printed in the Record, as follows: [The New York Times, Apr. 26, 1999] Liability for the Millennium Bug With 249 days to go until the year 2000, many experts are alarmed and others are only mildly concerned about the danger of computer chaos posed by the so-called millennium bug. One prediction seems safe, however. Whatever the damage, there will be lots of lawsuits. In anticipation, some in Congress, mainly Republicans, want legislation to limit the right of people and businesses to sue in the event of a Y2K disaster. Their reasoning is that the important thing is to get people to fix their computer problems now rather than wait and sue. But the legislation is misguided and potentially unfair. It could even lessen the incentive for corrective action. As most people know by now, the millennium bug arises from the fact that chips and software have been coded to mark the years with only two digits, so that when the date on computers moves over to the year 2000, the computers may go haywire when they register 1900 instead. A recent survey by a Senate Special Committee on the Year 2000 found that while many Government agencies and larger companies have taken action to correct the bug, 50 percent of the country's small- and medium-size businesses have not. The failure is especially worrisome in the health sector, with many hospitals and 90 percent of doctors' offices unprepared. If hospitals, supermarkets, utilities and small businesses are forced to shut down because of computer problems, lawsuits against computer and software manufacturers will certainly result. Some experts estimate that liability could reach $1 trillion. Legislation to protect potential defendants, sponsored by Senator John McCain of Arizona, is expected to be voted on in the Senate this week. The bill would impose caps on punitive damages and tighter standards of proof of liability, and provide for a 90-day waiting period in which the sued company would be allowed to cure the problem. The bills would also suspend ``joint and several liability,'' under which wealthy defendants, like chip or software companies, could have to pay the full cost of damages if other parties could not be sued because they were overseas or unable to pay. These provisions would curtail or even suspend a basic protection, the right to sue, that consumers and businesses have long enjoyed. The White House and the Congressional Democratic leadership are right to view such a step as unnecessary. Existing liability laws offer plenty of protections for businesses that might be sued. Proponents of the legislation argue, for example, that companies that make good-faith efforts to alert customers of Y2K problems should not be punished if the customers ignore the warning, or if the companies bear only a small portion of the responsibility. But state liability laws already allow for these defenses. The larger worry is that the prospect of immunity could dissuade equipment and software makers from making the effort to correct the millennium-bug problem. It might make sense to have a 90-day ``cooling off'' period for affected businesses to get help to fix as many problems as possible without being able to file lawsuits. But it would be catastrophic if stores, small businesses and vital organizations like hospitals and utilities were shut down for 90 days. They should have the same recourse to relief from the parties that supplied them with faulty goods that any other customer has. Government can certainly help by providing loans, subsidies and expertise to computer users and, perhaps, by setting up special courts to adjudicate claims. Congress can also clarify the liability of companies once it becomes clear how widespread the problem really is. But before the new year, the Government should not use the millennium bug to overturn longstanding liability practices. A potential crisis is no time to abrogate legal rights.

Mr. HOLLINGS. Through the Automotive Industry Action Group, GM and other carmakers have set a March 31 deadline for vendors to become Y2K compliant. In March, members of the Grocery Manufacturers of America will meet with their counterparts from the Food Marketing Institute to launch similar efforts. Other companies are sending warnings to laggards and shifting business, so the text-savvy Y2K can be a great opportunity to clean up and modernize the supply system. The market is working. We pointed that out. In a report by none other than Bill Gates at the World Economic Forum, they believe the millennium bug, aside from some possible glitches in delivery and supply, may pose only modest problems. Mr. Gates talked about it not being a real problem. I ask unanimous consent to have printed in the Record an article from the New York Times, dated April 12, entitled ``Lawsuits Related to Y2K Problem Start Trickling Into the Courts.''

Mr. HOLLINGS. Mr. President, I will go right to the point with respect to the compromise. I have in hand a letter from Craig R. Barrett, the distinguished CEO of Intel. Without reading the entire letter, the consensus is that what they would really need is a settlement or compromise regarding four particular points. One is procedural incentives; another is with respect to the provisions of contracts, that they have specificity; third, threshold pleading provisions and the amount of damages in materiality of defects which would help constrain class action suits; and, of course, the matter of proportionality, or joint and several. I contacted Mr. Grove and told him we would yield on three points, but we didn't want to get into tort law with a contract provision--all triable under the Uniform Commercial Code. He didn't think he could yield on that fourth one. Since that time, I understand that the downtown Chamber of Commerce says they are not yielding at all with respect to the test in tort law. My colleague from Oregon says there are nine points and that we have gotten together. That is garbage. That is not the case at all, I can say that right now. They are determined to change the proof of neglect by ``the greater weight of the preponderance of evidence'' to ``clear and convincing.'' I thought that was compromise. Reviewing the McCain-Wyden amendment that is now under debate, Members will find on that page scratched out and written in, ``clear and convincing evidence.'' They want to change the burden in tort cases from ``the greater weight of the preponderance of evidence'' to ``clear and convincing.'' How can you do that when you do not have the elements before you? You do not have control of the manufacturer; you do not have control of the software. If you are like me and other professionals like our doctor friends or CPAs, they don't know those kinds of things. They have to do the best they can by the greater weight of the preponderance of evidence--not clear and convincing. So they stick to punitive, they stick to clear and convincing, they stick to joint and several, but they come on the floor of the Senate and exclaim how reasonable they are and then allude, of course, to the trial lawyers and talk about campaign financing, but say as an aside, We don't want to get into it--as if the Senator from South Carolina is paid by trial lawyers to do this. I represented corporate America, and I will list those companies. I was proud of the Electric and Gas. I was proud of the wholesale grocer, Piggly Wiggly firm. We had 121 stores. I was their chief counsel on an antitrust case which I took all the way to the U.S. Supreme Court. I won. I had good corporate clients, too. I am proud of trial lawyers. We don't have time for frivolous cases. This downtown crowd will never see the courtroom. They sit there in the mahogany rooms with the Persian rugs. Their colleagues call and say, Let's get a continuance, I want to play golf this afternoon--the clock runs on billable hours. The clock is running and the clients never know the difference. And they pay $450 to $500 an hour. The distinguished Senator from Ohio who sat in front of me, now a national hero, is indebted to a case for billable hours. We know about downtown. I don't understand aspersions with respect to the trial bar--we are looking out for the injured parties. I want these matters in the Record. The case is clear cut, in this Senator's mind. For example, I talked for about an hour in the office with the distinguished head of Intel, Andy Grove, some weeks back. I don't want anyone to be misled, he is for proportionality. That is explained in the letter. However, he said it wasn't a real problem. I ask unanimous consent that an article in the March issue of Business Week entitled ``Be Bug-Free or Get Squashed'' be printed in the Record.

Mr. HOLLINGS. Mr. President, he is a doctor from Atlantic County, NJ. I will not read it in its entirety, but he said: . . . But it was a Y2K problem which recently posed a serious threat to my practice, and that is why I am here this morning. . . . Although I am a doctor, I am not here to speak on behalf of the [AMA]. Although I am a small businessman, I am not here to speak on behalf of the Chamber of Commerce. I cannot tell you how these organizations feel. . . . But I can tell you how it would have affected my business. I am one of the lucky ones. While a potential Y2K failure impacted my practice, the computer vendor that sold me the software system and I were able to reach an out-of-court settlement which was fair and expedient. . . . In 1987, I purchased a computer system from Medical Manager, one of the leading medical systems providers in the country. I used the Medical Manager system for tracking surgery, scheduling due dates and billing. Incidentally, that is very important for a doctor. If he gets sued for malpractice, it might be based on his computer and not on his professional treatment. I go on to read: . . . The system worked well for me for ten years, until the computer finally crashed from lack of sufficient memory. In 1996, I replaced my old system with a new, state of the art pentium system from Medical Manager for $13,000. This was a huge investment for a practice my size. I remember joking with the computer salesman at the time that this was a big purchase for me, and I was counting on this system to last as long as the last one did-- which was over 10 years-- I remember the salesman telling me that he was sure that I would get at least ten years out of it. He showed me a list of how many of his local customers had used the Medical Manager for longer than ten years. Jumping down: . . . one year later, I received a form letter from Medical Manager telling me the system I had just purchased had a Y2K problem. It was a problem that would make it impossible for me to schedule due dates or handle my administrative tasks-- as early as 1999. Medical Manager also offered to fix the problem that they had created--but for $25,000. He only paid $13,000. I was outraged, as I suspect anyone sitting around this table would be. The original system had cost me $15,000 when I purchased it in 1986. The upgraded system cost me $13,000 in 1996. Now, a year later, they wanted another $25,000. They knew when they sold me the $13,000 system that it would need this upgrade--but, of course, they didn't tell me. The company ignored my request, however, and several months later, sent me an estimate for fixing the problem--again, for $25,000. But he said he didn't have the $25,000. . . . I was appalled at the thought of having to pay Medical Manager for a problem that they had created and should have anticipated. . . . I had to pay that $25,000. . .[so] I retained an attorney and sued Medical Manager [under the present law]. . . . To my great satisfaction, the legal system worked for me and the thousands of other doctors who bought Medical Manager's products since 1990. In fact, since I brought my claim against Medical Manager, I have received numerous telephone calls and letters from doctors across the country who had similar experiences. I can go down the letter, Mr. President. The point is that he settled the case that was for some $1,455,000 for 17,000 doctors. I ask unanimous consent to print in the Record a note from Jack Emery of the American Medical Association.

Mr. HOLLINGS

Mr. HOLLINGS. I suggest the absence of a quorum.

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

Mr. HOLLINGS. Madam President, I yield myself so much time as may be permitted under the unanimous-consent agreement. Pending the discussion with respect to the Y2K problem, let me say at the outset that if there were a Y2K problem, we on this side of the opposition, let's say, to the particular bill and the amendment forthcoming with respect to Senator McCain and Senator Wyden, anything within reason obviously could have been worked out; namely, anyone who has a computer knows glitches. So no one can deny there cannot be a glitch on January 1 of the year 2000. However, there is not really a problem that would cause us to try to change tort law. That is what is in the offing here. I have talked to the best of the best in the computer industry with the idea that we could compromise and give the 90-day grace period. People do not want to go to court when they find out their computer is not working. If there is one thing that takes time--the Securities and Exchange Commission and so-called tort reform--they are still in discovery, they are still in appeals, and they are still in court, without trying the case, some 2 years later, because they have yet to determine what was intended. The same would be the case here trying to really venture into the State responsibility and jurisdiction with tort with so-called overall reform law. So I thought, fine, let's get together on what could be called a glitch. Nobody wants to go to court. Give them some time to fix the glitch, and then move on in the business world. However, we have some friends down at the National Chamber of Commerce who are really bent on actually trying to pass product liability and do away with trial by jury and all the other State tort systems. I could spot this in my particular position because I have been engaged in it for at least 20 years on the Commerce Committee from which it has been reported each time. We have prevailed over the 20 years. The reason we have prevailed is that the professionals in this particular field, whether it be the American Bar Association, the Association of State Legislatures, the Association of State Supreme Court Judges, the Association of Governors, until it was changed in effect, all opposed, and we were able to withstand the onslaught of this particular political move. I can tell you, Madam President, we are going to withstand it again on Y2K, unless they come around, of course. But I don't see a compromise in the offing. So I think immediately of what should be discussed; namely, television violence. We started on that with hearings at the beginning of the 1990s. This is 1999. And this Senator introduced a TV violence bill. We reported it out at that time 19 to 1 from the Congress before the last. I remember going up to Senator Dole, then majority leader, who was running for President, and saying, ``Look, we have got this bill out. The Attorney General has already attested to the fact that it would withstand constitutional muster on the freedom of speech provisions, and I will step aside if you want to make it. I am just interested in getting the bill, not the credit. So why don't you take the bill?'' The point is that the distinguished Senator had just come in from the west coast, where he, if everyone will remember, had cussed out the movie industry for its gratuitous violence in all of its film making. So I thought it was a natural that he would want to follow through. He didn't. In the last Congress we then had it reported out by a vote of 20 to 0--TV violence. This has nothing to do, of course, with the Nintendo games or the other little games they play on these machines. But it does have to do with the basic tendency towards violence without cost, without any harm, or injury, or feeling. We understand, of course, when you document the civil rights, when you document the matter of the Civil War, or any of these other things, you have to show the violence associated therewith in order to make an honest depiction; that is going to be included. But we are talking about gratuitous, excessive violence not incidental to the plot. The bill has been found to stand, as I say, constitutional muster. So we wanted to control that. I have that bill in again. I would rather think that really bowing to the Chamber of Commerce on particulars there with respect to State tort and State responsibilities--mind you me, my Republican friends in the leadership caterwaul that the best governed--or the less governed--that the best governed is at the local level. Why not let these local school boards control, rather than mandate from Washington this, that, or the next thing? Now they come with a mandate that the States have not asked for and the States would certainly oppose. I just talked to one of the great leaders in computerization who said, ``Senator, please don't pass this measure. The fact that companies don't get ready, they don't comply, is a competitive edge. My customers are checking them out. If they don't comply, I'm using that as a competitive advantage.'' Let the market forces operate I say to those who always caterwaul about market forces and deregulation and wanting to regulate. Back to the main point. We really ought to whip through a bill on television violence and control that. We have quite a case to present to the Congress itself. In the initial stage of broadcasting, programmers said in the booklets, ``Get a murder early on to hold the audience.'' They love violence, they love murders, so get in a murder scene. I can show you that word for word in the CBS program in the earlier stages of television. We can also go to the Colorado case. About 4 years ago a solution was used that is working at this particular time. I went down to Columbia, SC, which is Richland County. The county sheriff, Leon Lott, said, ``Senator, I want to show you a school that was the most violent we had in the county--more drugs and trouble. We put a uniformed officer in the classroom.'' Let me attest to this. I am not talking about some uniformed officer out in the parking lot looking for theft of the automobiles. I am talking about a law enforcement officer in contact with the students. This officer has not only taught the course, but associated himself in the afternoon with the athletic programs and in the evenings with the civic programs. If I had to pick a law enforcement officer, I would pick some all-American like our friend Bill Bradley--someone they look up to immediately, and put them in uniform. It is not too much to teach respect and have him associated on the campus. He walks, talks and teaches with the students, listens to the teachers and the principals. The students know who brings a weapon to the school grounds. The students know who brings drugs on the school properties. All they do is just nod their head, make a little motion. That security officer gets the hint immediately and goes in way ahead of time--preventing violence, preventing drugs--and if need be, gets them counseling or whatever. Senator Gregg and I provided just this kind of provision in the State-Justice-Commerce bill for the cops on the beat to be used. That is what Sheriff Lott was using in the Richland County schools. It is working in the other schools all over South Carolina. My reaction at the time of the Columbine High School in Littleton, CO, was, Did they have an officer? I heard some reports which said yes. If they did, that officer ought to be fired. Anybody that can offload that much weaponry--that security officer doesn't know what is going on. He is not even taking care of security. The main thing is to become, as they have in this particular approach, a role model for the students themselves. You can't put sensitive devices in every school in America. And we are not going to do that. Praying and counseling are well and good, but let's go ahead with a tried and true provision and get some leadership now that we can see, again, more than ever the need. We can be discussing those things rather than some political fix that you find in the polls. What about the lawyers? Every pollster and consultant says kill all the lawyers. That is popular. Reform, reform, reform; tort reform, get rid of the lawyers. Control their fees, control their verdicts, control the seventh amendment and the right of trial by jury. That is the whole scenario. We who understand and appreciate it and have been in the trenches now for 20 years are going to do our dead level best so that shall not go on. I think this afternoon at 5:30 we can vote cloture. I needed the time because we were not given notice about this particular measure coming up, but we are going to have to do some more head counting. We will have to prepare some amendments and debate the real issues facing the American people--not those being taken care of by the Governors and the States. All of the Senators running around trying to play catchup ball with the Governors from the elections last November, all those that got elected and preached ``education, education, education.'' There is a primary responsibility of the Federal Government for national defense. A primary responsibility of the State government is education: 93 cents out of every education dollar is at the State or local level. We only have 6 or 7 cents that we can toy with. We cannot have all of that influence. We can come across with some good ideas in one particular State and try to make it possible on a pilot basis for other States and take the leadership that we gain locally and spread it. We support the Department of Education on that basis. It is so ludicrous that those who came from the 1994 elections wanting to abolish the Department of Education are now running around throwing money at the Department of Education. It is all politics. If we can stop using the government to get ourselves reelected with these silly consultants and what shows up in the poll, but what shows up on the front page. We know the need nationally to pay our bills. We had a debate about that--it was totally disregarded--all last week: ``Save Social Security 100 percent.'' That was the majority leader's amendment. Madam President, I turned on the TV and he said the $6 billion for Kosovo was not enough; we will have to add another $6 billion. When asked where they will get the money, he said, ``From Social Security.'' That is not the only surplus. That is the only way to hide it. But you can get $12 billion surplus from the civil service retirement fund, which they have been doing, and from the military retirement fund, which they have been using, but the mindset is immediately to go and spend Social Security to savage the fund. There again was another political charade. Today we are engaged in another political charade. At this particular time, with respect to the motion to proceed, I do not see much interest in actually debating. When the proponents come to the floor, I would like an opportunity to make a few points relative to the demerits of this particular measure, why it should not be enacted, and get their response. Thereby, Madam President, I reserve the remainder of my time and suggest the absence of a quorum.

Mr. HOLLINGS

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