John McCain

Mr. McCAIN

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

Mr. McCAIN. Mr. President, I send a second-degree amendment to the desk.

Mr. McCAIN. Mr. President, I send an amendment to the desk to the motion to commit with instructions.

Mr. McCAIN

Mr. McCAIN. Mr. President, I yield the floor. Mr. KENNEDY addressed the Chair.

Mr. McCAIN

Mr. McCAIN. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. on Thursday, April 29. I further ask that on Thursday, immediately following the prayer, the Journal of proceedings be approved to date, the morning hour be deemed to have expired, and the time for the two leaders be reserved for their use later in the day. I further ask unanimous consent that immediately following the prayer, there be 1 hour for debate only, equally divided between Senator McCain and Senator Hollings, relative to the cloture motion on the McCain amendment to S. 96. I further ask that following that debate, the Senate proceed to a vote on the motion to invoke cloture.

Mr. McCAIN

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

Mr. McCAIN. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in adjournment as a further mark of respect to the memory of deceased Senator Roman Hruska, following the remarks of Senator Graham.

Mr. McCAIN

Mr. McCAIN. Mr. President, let me say we are ready to move forward on the bill. We have a couple of amendments that can be accepted by both sides. I would like to move forward with that and hope that both supporters and opponents of the bill will come to the floor. Today I see a Statement of Administration Policy: The Administration strongly opposes S. 96 as reported by the Commerce Committee, as well as the amendment intended to be proposed by Senators McCain and Wyden as a substitute. If S. 96 were presented to the President, either as reported or in the form of the proposed McCain-Wyden amendment, the Attorney General would recommend a veto. Let me say, I am glad to see the administration's position on this. I think it makes it very clear as to whose side they are on. I hope all the manufacturers, the small businesses, the medium size businesses and the large businesses in America will take careful note of the administration's absolute opposition to an effort that would solve this very, very serious issue. Of course, they support amendments that are proposed by the trial lawyers which would gut this legislation. I have no doubt that if we accepted the amendments that are going to be proposed, it would gut it. But let us come to the floor and debate these amendments and move forward. We have been on this bill now for 3 days. We still haven't had a single amendment. I say to the opponents of this legislation and the substitute that Senator Wyden and I proposed, come to the floor. Let us debate your amendments and let us move forward. There is a cloture petition that will be voted on tomorrow. We may have to move forward in that fashion. In USA Today, Mr. President, there is an interesting column under Technology by Kevin Maney: ``Lawyers Find Slim Pickings at Y2K Lawsuit Buffet.'' Y2K lawyers must be getting desperate, in much the way an overpopulation of squirrels gets desperate when there aren't enough nuts to go around. So far, there's been a beguiling absence of breakdowns and mishaps because of the Y2K computer problem. The ever- multiplying number of lawyers chasing Y2K lawsuits apparently have had to scrounge for something to do. At least that's the picture Sen. John McCain [R-Ariz.] painted on the Senate floor Tuesday. McCain, who is sponsoring legislation to limit Y2K lawsuits, told the story of Tom Johnson. It seems that Johnson has filed a class action against retailers, including Circuit City, Office Depot and Good Guys. The suit charges that salespeople at the stores have not warned consumers about products that might have Y2K problems. For one thing, that's like suing a Chrysler dealership because the sales guy didn't tell you a minivan might break down when you're 500 miles from home on a family vacation. Or suing a TV network for failing to announce that its shows might stink. Beyond that, Johnson doesn't claim in the suit that he has been harmed. He's just doing it for the good of humanity--and ``relief in the amount of all the defendants' profits from 1995 to date from selling these products.'' * * * * * Think Johnson's case is an anomaly? We haven't even hit seersucker season, and the lawsuits focusing on Jan. 1 are flying. More than 80 have been filed so far. If you sift through the individual suits, a few seem understandable. The rest seem like Rocco Chilelli v. Intuit. Chilelli's suit says older versions of Intuit's Quicken checkbook software are not Y2K ready and alleges that Intuit refuses to provide free upgrades. Filed in New York, the suit is a class action on behalf of ``thousands of customers (who) will be forced to spend even more money to acquire the latest Quicken version and may be required to spend time acquainting themselves with the updated program and possibly re-inputting financial information.'' After much legal wrangling, the Supreme Court of the State of New York, County of Nassau, found that--duh!--no damage had yet happened, as the calendar hasn't yet flipped to 2000. The case was dismissed. Mr. President, the column goes on to talk about the frivolous suits that have been filed already. We need to act. I note the presence of the Senator from South Carolina. I ask if he is ready to consider two Murkowski amendments at this time, which have been agreed to by both sides. Mr. President, I suggest the absence of a quorum.

Mr. McCAIN

Mr. McCAIN. Mr. President, following the cloture vote, the Senate may continue debate on the Y2K bill, the lockbox issue or any other legislative or executive items cleared for action. As a further reminder, a cloture motion was filed today to the pending amendment to the Social Security lockbox legislation. That vote will take place on Friday at a time to be determined by the two leaders. For the remainder of the week, it is possible that the Senate may begin debate on the situation in Kosovo.

Mr. McCAIN

Mr. McCAIN. Mr. President, I object to further proceedings on this matter at this time.

Mr. McCAIN. Mr. President, I understand there is a joint resolution at the desk due for its second reading.

Mr. McCAIN

Mr. McCAIN. Mr. President, first I will discuss an issue that is going to come before the Senate either late this week or next week. I am not sure. That is the issue of Kosovo. I believe it is important we address the issue. I believe it is important we address the issue as we have previous foreign policy issues. In the case of our resolution supporting United States involvement in Bosnia, we had a Dole resolution and we had a couple of others that were voted on. In the case of the Persian Gulf resolution, we had a resolution that was proposed by then-Senator Dole, who was then the minority leader, and one that was proposed by Senator Mitchell. I hope we will proceed in a fashion where more than one resolution is considered and voted on at the time. That is our responsibility, and I hope we intend to do it. I strongly urge the majority leader to accept a vote on a resolution that I have already introduced.

Mr. McCAIN

Mr. McCAIN. Mr. President, I thank the Senator from Oregon for his enormous work on this legislation. I think it bears repeating what we have been able to do here. I believe any objective observer would agree that what Senator Wyden has brought to the bill represents a tremendous movement from the bill we originally passed in the Commerce Committee. These discussions with Senator Wyden and others resulted in at least eight major changes. The biggest change was that we eliminated the so- called good-faith defense, because we could not define good faith and reasonable efforts. We also put in, as Senator Wyden mentioned, a sunset of January 1, 2003. There is no cap on punitive damages when the defendant has intentionally caused harm to the plaintiff. It clarifies that if a plaintiff gives 30 days notice of a problem to the defendant, the defendant has 60 days to fix it. This doesn't result in a 90-day delay for litigation but does offer a critical opportunity to solve problems rather than litigate. Language regarding the state of mind and liability of bystanders was significantly narrowed, redrafted, and clarified in order to assure that the provisions are consistent with the Year 2000 Information and Readiness Disclosure Act of 1998. The economic loss rule was likewise rewritten and narrowed to reflect the current law in the majority of States. Proportionate liability was significantly compromised to incorporate exceptions to the general rule to protect plaintiffs from suffering loss. Class action language was revised and narrowed, and language respecting the effect of State law on contracts and the rules with respect to contract interpretation was also revised to address concerns that Senator Wyden raised. In other words, I believe we have gone a long way. Mr. President, the opponents of this legislation will make several arguments. I respect those arguments. One will be that we are changing tort law--that we are somehow fundamentally changing the law despite the fact that this has a sunset provision in it of January 1, 2003. Also, they will say it is not a big problem; it is not nearly as big a problem as you think it is; there are going to be suits dismissed; that the manufacturers and the high-tech community and the businesspeople are setting up a straw man here because it is not that huge an issue despite the estimates that there can be as much as $300 billion to $1 trillion taken out of the economy. Let me quote from the Progressive Policy Institute backgrounder of March 1999. They state: As the millennium nears, the year 2000 computer problem poses a critical challenge to our economy. Tremendous investments are being made to fix Y2K problems with U.S. companies expected to spend more than $50 billion. However, these efforts could be hampered by a barrage of potential legislation as fear of liability may keep some businesses from effectively engaging in Y2K remediation efforts. Trial attorneys across the country are actually preparing for the potential windfall. For those who doubt the emergence of such leviathan litigation, one only needs to listen to what is coming out of certain quarters of the legal community. At the American Bar Association annual convention in Toronto last August, a panel of experts predicted that the legal costs associated with Y2K will exceed that of asbestos, breast implants, tobacco, and Superfund litigation combined. That is more than three times the total annual estimated cost of all civil litigation in the United States. That is what was propounded at the American Bar Association convention in Toronto last August. Mr. President, it isn't the Bank of America that is saying that. It isn't the high-tech community. It is the American Bar Association. Seminars on how to try Y2K cases are well underway, and approximately 500 law firms across the country have put together Y2K litigation teams to capitalize on the event. Also, several lawsuits have already been filed making trial attorneys confident that a large number of businesses, big and small, will end up in court as both a plaintiff and a defendant. Such overwhelming litigation would reduce investment and slow income growth for American workers. Indeed, innovation and economic growth will be stifled by the rapacity of strident litigators. In addition to the potentially huge costs of litigation, there is another unique element to the Y2K problem. In contrast to past cases of business liability where individual firms or even industries engaged in some wrongful and damaging practices, the Y2K problem potentially affects all aspects of the economy as it is for all intents and purposes a unique one-time event. It is best understood as an incomparable societal problem rooted in the early stages of our Nation's transformation to a digital economy. Applying some of the existing standards of litigation to such a distinct and communal problem is simply not appropriate. Legislation is needed to provide incentives for businesses to fix Y2K problems, to encourage resolution of Y2K conflicts outside of the courtroom, and to ensure that the problem is not exploited by untenable lawsuits. The Progressive Policy Institute goes on to say at the end: In order to diminish the threat of burdensome and unwarranted litigation, it is essential that any legislation addressing Y2K liability do the following: Encourage remediation over litigation and the assignment of blame; Enact fair rules that reassure businesses; That honest efforts at remediation will be rewarded by limiting liability while enforcing contracts and punishing negligence; Promote alternative dispute resolution; And, finally discourage frivolous lawsuits while protecting avenues of redress for parties that suffer real injuries. Mr. President, on those four principles we acted in this legislation, and then we moved back to, if not the principles of it, some of what, in my view, were the most desirable parts of the legislation on the nine major issues which I just described in our negotiations with Senator Wyden and others. Then we even made concessions in two additional areas with Senator Dodd. And now it is not enough.

Mr. McCAIN. Does the Senator from Oregon have a question?

Mr. McCAIN. Mr. President, I ask unanimous consent to yield to the Senator from Oregon, without losing my claim to the floor.

Mr. McCAIN. Mr. President, I am pleased to offer, with my friend and colleague from Oregon, Senator Wyden, a substitute amendment to S. 96, the Y2K Act. The substitute amendment we offer is truly a bipartisan effort. We have worked diligently with our colleagues on both sides of the aisle and will continue to do so to address concerns, narrow some provisions, and assure that this bill will sunset when it is no longer pertinent and necessary. Senator Wyden, who said at our committee markup that he wants to get to ``yes,'' has worked tirelessly with me to get there. He has offered excellent suggestions and comments, and I think the substitute we bring today is a better piece of legislation for his efforts. Specifically, this substitute would provide time for plaintiffs and defendants to resolve Y2K problems without litigation. It reiterates the plaintiff's duty to mitigate damages and highlights the defendant's opportunity to assist plaintiffs in doing that by providing information and resources. It provides for proportional liability in most cases with exceptions for fraudulent or intentional conduct or where the plaintiff has limited assets. It protects governmental entities, including municipalities, school, fire, water and sanitation districts from punitive damages, and it eliminates punitive damage limits for egregious conduct while providing some protection against runaway punitive damage awards. It provides protection for those not directly involved in a Y2K failure. The bill as amended does not cover personal injury and wrongful death cases. It is important to keep in mind the broad support this bill has from virtually every segment of our economy. This bill is important not only to the high-tech industry or to big business but carries the strong support of small business, retailers and wholesalers. Many of those supporting the bill will find themselves as both plaintiffs and defendants. They have weighed the benefits and drawbacks of the provisions of this bill and have overwhelmingly concluded that their chief priority is to prevent and fix Y2K problems and make our technology work and not divert the resources into time-consuming and costly litigation. Mr. President, I would like to interrupt my prepared statement at this time to mention that when we passed this legislation through the Commerce Committee, unfortunately, on one of the rare occasions in the more than 2 years that I have been chairman of the committee, it was passed on a party line vote, on a vote of 11 to 9. At that time Senator Wyden, Senator Kerry, Senator Dorgan and others expressed a strong desire to work in a bipartisan fashion so that we could pass this legislation. Most of us are aware that when legislation goes to the floor along party lines and is divided on party lines, the chances of passage are minimal, to say the least. We worked with Senator Wyden and others, and we made eight major compromises in the original legislation, sufficient in the view of many to enhance the ability of this legislation to be passed and, very frankly, satisfy at least some of the concerns of the trial lawyers and others that had been voiced about the legislation. Last night, Senator Wyden and the Senator from Connecticut, Senator Dodd, and I met, and we discussed three major concerns that Senator Dodd had, which two we could agree to, and on the third there was some discussion about language. It was my distinct impression at that time that we had come to an agreement on these three particular additional items. Apparently this morning that is not the case. On the third item there is still not agreement between ourselves and Senator Dodd and his staff. I hope we can continue to work on that language. Mr. President, I have been around here now for 13 years. I have seen legislation compromise after compromise made to the point where the legislation itself becomes meaningless. We are approaching that point now. I will be glad to negotiate with anyone. My friend from Massachusetts, Senator Kerry, and I have been in discussions as well. But we cannot violate some of the fundamental principles that I just articulated as the reason for this legislation. If we weren't facing a very severe crisis in about 7 or 8 months from now--7 months, I guess-- then there would not be a need for this legislation. Our object is to protect innocent business people, both large, medium and small, from being exposed to the kind of lawsuits which we know will transpire if we do not do something about the problem. It is not only important that we receive the support of the ``high- tech community,'' which is very important to the future of our Nation's economy, but the medium-size businesses, the small businesses, the retailers and others are all in support of this legislation. I am aware of the power of the American Trial Lawyers Association. I have been beaten by them on several occasions. They have a string of victories to their credit. They are also, among others, another argument for campaign finance reform, which is a diatribe I will not enter in today. The fact is this issue needs to be resolved. I would be very disappointed if over a couple of points we cannot agree and this legislation fails to proceed. Did my friend from Oregon have a question or a comment?

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

Mr. McCAIN. I send a substitute amendment to the desk.

Mr. McCAIN

Mr. McCAIN. I now ask for its second reading and object to my own request.

Mr. McCAIN. I understand S.J. Res. 22 introduced earlier by Senator Jeffords for himself and others is at the desk, and I ask that it be read the first time.

Mr. McCAIN

Mr. McCAIN. If there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in adjournment under the previous order following the remarks of the Senator from Louisiana.

Mr. McCAIN

Mr. McCAIN. For the information of all Senators, the Senate will convene at 10:30 a.m. and be in a period of morning business until 12 noon. Following morning business, the Senate will immediately resume debate on the Y2K legislation. I encourage my colleagues to come to the floor to debate this important issue. Further, the Senate may consider any other legislative or executive items cleared for action during today's session of the Senate.

Mr. McCAIN

Mr. McCAIN. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 10:30 a.m. on Wednesday, April 28. I further ask that on Wednesday, immediately following the prayer, the Journal of proceedings be approved to date, the morning hour be deemed to have expired, and the time for the two leaders be reserved for their use later in the day. I also ask that at 10:30 a.m. the Senate begin a period of morning business until 12 noon with Senators permitted to speak for up to 10 minutes with the following exceptions: Senator Lott, or his designee, 30 minutes; Senator Durbin, 30 minutes; and Senator Kerry for 15 minutes.

Mr. McCAIN

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet on Tuesday, April 27, 1999, at 9:30 a.m. in open session, to consider the nominations of Mr. Brian E. Sheridan, to be Assistant Secretary of Defense for Special Operations and Low Intensity Conflict; and Dr. Lawrence J. Delaney, to be Assistant Secretary of the Air Force for Acquisition.

Mr. McCAIN. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be allowed to meet on Tuesday, April 27, 1999, at 9:30 a.m. on OMC/Truck Safety.