John McCain

Mr. McCAIN

Mr. McCAIN. Mr. President, I ask unanimous consent that the resolution be agreed to and the motion to reconsider be laid upon the table.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Senate now proceed to the immediate consideration of S. Res. 89, submitted earlier by Senator McConnell.

Mr. McCAIN

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Intelligence be authorized to meet during the session of the Senate on Wednesday, April 28, 1999 at 2 p.m. to hold a closed hearing on Intelligence Matters.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Wednesday, April 28, 1999 at 9:30 a.m. to receive testimony on the operations of the Architect of the Capitol.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate on Wednesday, April 28, 1999 at 9:30 a.m. in room 226 of the Senate Dirksen Office Building to hold a hearing on: ``S.J. Res. 14, Proposing an Amendment to the Constitution of the United States, authorizing Congress to Prohibit the Physical Desecration of the Flag of the United States.''

Mr. McCAIN. Mr. President, I ask unanimous consent that the Senate Committee on Indian Affairs be authorized to meet during the session of the Senate on Wednesday, April 28, 1999 at 9:30 a.m. to conduct an Oversight Hearing on Bureau of Indian Affairs Capacity and Mission. The Hearing will be held in Room 485, Russell Senate Building.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in executive session during the session of the Senate on Wednesday, April 28, at 9:30 a.m.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Governmental Affairs Committee Subcommittee on International Security, Proliferation, and Federal Services be permitted to meet on Wednesday, April 28, 1999, at 2:30 p.m. for a hearing on ``The Future of the ABM Treaty.''

Mr. McCAIN. Mr. President, the Finance Committee requests unanimous consent to conduct a hearing on Wednesday, April 28, 1999 beginning at 10 a.m. in room 215 Dirksen.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be granted permission to conduct a hearing Wednesday, April 28, at 2:30 p.m., Hearing Room (SD-406), to receive testimony from, George T. Frampton, Jr., nominated by the President to be a Member of the Council on Environmental Quality.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Wednesday, April 28, for purposes of conducting a closed full committee hearing which is scheduled to begin at 9:30 a.m. The purpose of this oversight hearing is to receive testimony on damage to the national security from Chinese espionage at DOE nuclear weapons laboratories.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Subcommittee on Forests and Public Land Management of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Wednesday, April 28, for purposes of conducting a Subcommittee on Forests and Public Lands Management hearing which is scheduled to begin at 2 p.m. The purpose of this hearing is to receive testimony on S. 415, a bill to amend the Arizona Statehood and Enabling Act in order to protect the permanent trust funds of the State of Arizona from erosion due to inflation and modify the basis on which distributions are made from the funds, and S. 607, a bill to reauthorize and amend the National Geological Mapping Act of 1992; and S. 416, a bill to direct the Secretary of Agriculture to convey to the city of Sisters, Oregon, a certain parcel of land for use in connection with a sewage treatment facility.

Mr. McCAIN

Mr. McCAIN. Mr. President, I would like to respond to some of the examples of how S. 96 would deny justice to businesses injured by a Y2K failure that have been offered by the ranking member. In particular, the example of a company called Produce Palace has been raised a number of times. In fact, the owner of that business testified before the Commerce Committee. Let me respond to the specific charges with the specific facts of that case and dispel the notion that S. 96 would make that business' situation even worse. The small businessman who owns Produce Palace has testified frequently regarding the problem he had with a computerized point of sale system, including a credit card scanner which would not accept credit cards with expiration dates of ``00.'' He asserted his situation would somehow be worsened by S. 96. The facts are to the contrary. The situation would be better with the passage of S. 96. Although he complains that S. 96 would require a 90-day waiting period, his lawsuit against the cash register system company was not commenced for over 2 years after the problem occurred. S. 96 would require that he provide 30 days notice to the company of the problem. This notice period does not foreclose emergency action for temporary restraining orders or similar extraordinary court involvement where warranted. Although he communicated back and forth with the company responsible for his problems over many months, under S. 96 the company would have had to respond by the end of the 30 days, and fix the problem within another 60 days. He could have begun suit at the end of the 60-day remediation period if the problem was not fixed, and not continued to be strung along for months and months. Additionally, most of the Produce Palace damages were suffered from lost profits and business. These losses may or may not be covered in his contract with the equipment provider. If those issues are included in a contract, then the contract terms prevail. If not, he would have every right to secure a new cash register or new credit card ``swipe'' machine so his business could proceed during the interim. This is something he apparently did not do under the current law. S. 96 would not affect his right to sue if the problems were not fixed in a timely manner. In fact, he would have been able to sue much more quickly than he actually did. More to the point, under S. 96 defendants are encouraged to fix problems, and quickly, so that Mr. Yarsike's problems would have been alleviated more quickly and without the drain on his energy and financial resources that litigation entails. We are sending a letter to Yarsike explaining to him this aspect, and we certainly look forward to his response, if there is any disagreement. The second area that I will talk about is proportionate liability. Proportionate liability is one aspect of the bill that has caused some concern among my colleagues. I quoted this morning from a paper by the Progressive Policy Institute concerning the impact of Y2K litigation, and that same paper also discusses proportionate liability. The Progressive Policy Institute paper says: It is also extremely important that defendants be held liable for only their portion of the fault by eliminating joint and several liability. Given that computers and electronic products pass through many hands before they are finally sold, sourcing the liability like this will be that businesses that had no role in causing the problem will not be held accountable. To demand that a business with little complicity in a dispute provide the lion's share of reparations only because they have the deepest pockets or because they are the last ones left standing, would simply be unfair. The other issue I will discuss is the financial impact of litigation. It costs everybody money. It raises the cost, goods, and services. Here are a few examples. Twenty percent of the price of a ladder, 50 percent of the price of a football helmet is attributable to liability and litigation costs. The cost of defensive medicine used to help avoid malpractice liability has been estimated at $50 billion annually. These kinds of costs will result in higher costs of technology goods and services. These increased costs to consumers make technology a potentially more divisive element in our society, dividing the haves and have-nots, those who can afford technology, goods, and services versus those who cannot. Seminars on how to try Y2K cases are well underway. Approximately 500 law firms across the country have put together Y2K litigation teams to capitalize on this event. Let me just give you a sample of the Y2K litigation cost estimates: The year 2000 computer bug is expected to cause some disruptions, even if 95 percent of computer system problems are corrected. Problems will dramatically worsen if only 85 percent or 75 percent of the bugs are found. Ninety-five percent corrected/best-case estimate: U.S. total costs (to replace and repair software and systems and pay for litigation) $90 billion; 85 percent: U.S. total costs: $500 billion; 75 percent, which is the worst-case: $1.4 trillion. The source of that information is Capers Jones of Artemis Management Systems. The amount of legal litigation associated with the year 2000 has been estimated by the Giga Information Group to be $2 to $3 for every dollar spent on fixing the problems. With the estimated size of the market for the year 2000 ranging from $200 billion to $600 billion, the associated legal costs could easily near or exceed $1 trillion. Mr. President, the effects of abusive litigation could further be curbed by restricting the award of punitive damages. Punitive damages, as we all know, are meant to punish poor behavior and discourage it in the future. However, this is a one-time event. The only thing deterred by excessive punitive damages in Y2K cases would be remediation efforts by businesses. I have managed a number of bills on the floor of the Senate, some of them more controversial than others. It is the rarest of occasions when we have seen a situation where amendments are not even allowed to be propounded and debated and voted on. It is not clear to me why we can't move forward with the legislative process. We have a bill that was reported out of committee. We have made several changes to it, as is normal between the time a bill is reported out of committee and when it gets to the floor. I know there are significant objections by the distinguished Democrat leader, Senator Hollings, of the Commerce Committee. I do not quite understand why he wouldn't come forward, propose an amendment, et cetera. Now we are playing parliamentary games with motions to recommit and cloture motions. I say to the Senator from Massachusetts, who I have great respect for, why don't we just amend, vote, and move forward on an issue that all of us realize is very, very important to the future of this country? The year 2000 is not going to wait. I have never, in 13 years in the Senate--and many of those years, from 1987 to 1995, spent in the minority--come to this floor and tried some parliamentary maneuver such as I just saw. Never. I do not think it is the proper way we should conduct business here in the Senate. We are going to have a cloture vote tomorrow. I believe we will get 60 votes. If we do not get 60 votes, then I believe we ought to have another cloture vote a day or two later and another cloture vote a day or two later and another cloture vote a day or two later. Because we ought to find out, Mr. President, who is really interested in curing this problem and who is interested in blocking legislation on behalf of the American Trial Lawyers Association. I hope the Senator from Massachusetts will withdraw this foolishness that he just went through. I hope the Senator from Massachusetts will propose an amendment on anything that has to do with this bill, and we would debate it and vote on it. That is the courtesy that I used to give my colleagues on the other side of the aisle when I was in the minority. I want to repeat, never once, never once did I propose a motion to recommit followed by a cloture motion, nor have I seen it here in this body that often, especially when we are dealing with an issue of this importance. Mr. President, I ask for the yeas and nays on the amendment.

Mr. McCAIN. Mr. President, I regret that we have to go through this. It was chosen to attempt to recommit this important bill back to the committee. As a result of that action, it is not only impeding but making very difficult our progress on the legislation. The Senator from Massachusetts and I have done battle on the floor of the Senate in an environment characterized with respect and appreciation. I do appreciate and respect the commitment that the Senate from Massachusetts makes to a variety of issues. I have not seen anyone on the floor who is committed as much as he is and willing to come to the floor day after day in advocacy of the issues that he believes in--health care, minimum wage, and many others. I hope the Senator from Massachusetts and others on the other side of the aisle will allow us to move forward with this legislation, whatever amendments they wish to propose, or amendments on this side, that we could have open debate and move forward. With that commitment, I will move that we remove the cloture motion, if we have that commitment from the other side. I hope we can move forward. Apparently, we will not. But it is not the way the American people expect us to do business. There is a little book we hand out to people when they come here to the Capitol and we give to our constituents. It is called, ``How Our Laws are Made.'' Our laws aren't made this way. This isn't the way we describe it to the American people. The way we describe it to the American people is a bill is reported out of committee, it comes to the floor, the amending process takes place, and we then continue to final passage of the legislation and to a conference and come back to the floor of the Senate. This is not that procedure. I do not think the schoolchildren will look very favorably on this kind of exercise that we are going through now. I appeal to the better angels of my colleague's nature that we move forward with this very important legislation as quickly as possible. I note the presence of the distinguished majority leader.

Mr. McCAIN. Mr. President, I believe I have the floor.

Mr. McCAIN. Mr. President, I ask unanimous consent the pending matter before the Senate be set aside so I can speak on the pending bill overall.

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

Mr. McCAIN. Mr. President, I suggest the absence of a quorum.

Mr. McCAIN. I ask unanimous consent that the pending business be temporarily laid aside in order for the Senate to consider two amendments en bloc to be offered by Senator Murkowski, that such amendments be immediately considered en bloc and agreed to en bloc, the motion to reconsider be laid upon the table, and the Senate then return to the pending business.

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

Mr. McCAIN. Mr. President, I suggest the absence of a quorum.

Mr. McCAIN. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. McCAIN

Mr. McCAIN. Mr. President, I would like to first comment on the remarks by the Democratic leader, who is a very old and dear friend of mine going back many years. I appreciate his frustration and concern. I think he made a very eloquent point here. I point out to my good friend, there is a bit of frustration on this side, too. There is no better example than what is happening right now. We have this bill on Y2K, which is time sensitive if there ever was one, if there was ever a definition of a time-sensitive piece of legislation. We have had it on the floor for 4 days and we cannot get a single amendment, not one single amendment up on your side of the aisle for debate and voting. I say to the Senator, the distinguished Democrat leader, that is what also breeds frustration on this side. Then the majority leader has to file a cloture motion. The Senator hearkened back to previous years when his party was in the majority. I have to tell you, most of the bills we took up, we put up amendments. Those amendments were either tabled or agreed to or modified, and we went forward. On this bill right here, we have not had a single amendment. I begged for the last 4 days: Please come forward with an amendment. In all candor, on that side of the aisle the leader has said: On this bill, all I want to do is kill the bill. All I want to do is kill the bill. Then we are forced to go ahead with a cloture motion and a cloture vote. My point to the distinguished Democratic leader is, maybe we ought to all draw back a little bit, go back to a period of time where perhaps we were proposing amendments on both sides and they were allowed. I agree with the distinguished Democratic leader that we should have these issues raised, I hope in a timely fashion, such as the distinguished Democratic leader has sought to do. I know what the staff is now whispering in the Senator's ear: ``We filled up the tree.'' We filled up the tree because we did not want to take up minimum wage. We wanted to move forward with this bill. I understand and appreciate the passion the Senator from Massachusetts has about minimum wage. I do not mind debating the bill. But I would also like to get this bill done, which is time sensitive on January 1 of the year 2000. Why there would not be a single amendment-- as soon as we filled up the tree I said I would be glad to agree by unanimous consent we take up any amendment that is germane to this bill. I think that would be appropriate. In 4 days, there has not been a single amendment. I am not saying the responsibility is all on that side of the aisle or on this side of the aisle. I hope we can work out an orderly process. But it frustrates me and the people, the small-, medium- and large-size business people all over America who are facing this crisis, when we seem to be stuck without even considering a single amendment on the bill. So I hope the Democratic leader in his frustration, which is understandable, would also understand that occasionally there is frustration on this side of the aisle as well. Having been in both the minority and the majority, I understand, I think, the frustrations that are felt there on that side of the aisle. I would like to make one additional comment. I want to express my appreciation to Senator Dodd for his efforts on this bill; Senator Hatch, Senator Feinstein, Senator Wyden, and Senator Bennett. As we know, Senator Dodd and Senator Bennett chaired a very important special committee on the Y2K issue. They have done a tremendous job. So they have been heavily involved in this legislation. Senator Feinstein and Senator Hatch have had a longstanding involvement, and I am very grateful to them for their constructive contributions to this bill. We have had many hours of meetings trying to work out very difficult aspects of this issue. Thanks to Senator Dodd's leadership, along with that of Senators Hatch and Feinstein, Wyden and Bennett, I think we have an agreement that we will be able to move this issue forward. So I ask again if we could agree on amendments. I understand there are about 20 pending, about 10 of them by the distinguished ranking member of the Commerce Committee. If we could narrow down those amendments, agree to them and agree to have votes, then we could vitiate the cloture vote tomorrow and get this thing done. Unfortunately, so far there has been no agreement, there has been no amendment brought up, and there has been no time agreement. I again plead with the other side, if we are really interested in passing this legislation, let's go ahead, agree we stand ready to agree to the amendments and the time agreements on all of those amendments. Mr. President, again I want to make clearly understood the great respect and affection I have especially for the distinguished Democratic leader. I understand his frustrations. We felt them when we were in the minority, and I hope all of us together can have more comity in this entire process so we can do the people's business.

Mr. McCAIN. Mr. President, I paid attention to the exchange. The Senator from North Carolina was not here. The Senator from South Carolina was here when we fought for 10 years on a little item called aircraft product liability. I know the Senator from South Carolina fought viciously against that. The whole world was going to collapse if we gave an 18-year period of repose to aircraft manufacturers for products they built and manufactured. Now there are 9,000, at least, new employees, and we are building the best piston driven aircraft in the world, thanks to that legislation. Ask any of the owners of those aircraft companies and those people who are working there. It is because we finally passed that bill over the objections of the American Trial Lawyers Association which fought it for 10 years.

Mr. McCAIN. I will not.