Ron Wyden

Mr. WYDEN

Mr. WYDEN. Mr. President, I will be anxious to yield to my colleague from Massachusetts after I have had a chance for just a few minutes of discussion of this issue. I will take a minute and outline an example of the kind of issue that we are going to see early next century and how this legislation specifically responds to it. Let's say that Mabel's restaurant buys $10,000 worth of computers from the Jones Company and they crash on January 3 of next year. Mabel's restaurant loses a million dollars' worth of business as a result. Mabel writes to Jones Computer Company telling them that the crash was as a result of a Y2K failure; they want the computers fixed, she wants compensation for the million dollars. Here is what happens: The Jones Computer Company has to respond within 30 days of hearing from Mabel's restaurant. They can say: Yes, Y2K failure; we are going to fix the computer the way Mabel wants, and we are going to pay the million dollars as well. Or they can say: We will fix the Y2K problem, but we don't think we ought to be responsible for the entire million dollars' loss. Mabel and Jones Computer agree Jones ought to fix them, they negotiate and come up with what Jones is liable for, and if Mabel doesn't think she is getting everything she ought to, she can go out and sue Jones immediately. Or she can say the situation isn't fixed the way she wants it and she can go out and again file a lawsuit immediately. Now, some have said, well, what happens if the Jones Computer Company is bankrupt and insolvent? Well, Mabel can name in her lawsuit anybody she thinks is a responsible party. The jury will then decide what portion of the blame each potential defendant ought to bear. Virtually all of these cases are going to be decided on the basis of existing State contract and tort law. We lock into this legislation protection for existing contracts, and in virtually all of the cases State contract and tort law is going to be protected. So what you are going to have is a situation where Mabel's restaurant, if it isn't fixed to her satisfaction, can go to court essentially immediately and recover all of her economic damages. She is in a position, by the way, to recover up to a quarter of a million dollars in punitive damages. I made my career with the Gray Panthers, the senior citizens group, before I came to Congress and now for 18 years in Congress, around consumer advocacy. It seems to me that is a pretty good deal, what I have outlined in this hypothetical case for this restaurant, for just about any consumer in our country. I want to talk specifically about whether Americans are losing any legal rights in this particular legislation. I guess we could say they are losing the right to sue for a few days. As I said, they can sue immediately if they choose to. But the reason we are trying to have that 30-day period for defendants is to make sure they fix people's problems. It is better to be on line than waiting in line for that court date. Second, I guess you can say the cap on punitive damages as it relates to small business means we are not going to stick it to small business. Well, I happen to think those small businesses are making an extraordinary contribution to our economy. So let's have a philosophical debate. The Senator from Massachusetts, who has worked hard on this issue, and I have a difference of opinion on that. We don't disagree on a whole lot of issues. I think we do disagree on that one. But I think we ought to protect the small businesses from these unlimited punitive damages. Third, I guess you can say our legislation does make some changes with respect to joint and several liability. What we are saying, however, is that anytime you have a corporate defendant who engages in egregious conduct, rips off consumers, is guilty of fraud, joint and several liability applies in those kinds of instances. It also applies when we have individuals with a low net worth as well. I would like the Senate to also reflect on the fact that essentially what we are doing here is what we did in the Securities Litigation Reform Act. It parallels most of the key issues in that area. I want to wrap up by just mentioning briefly all of the major changes that were made in this legislation after it left the Senate Commerce Committee where Democrats, in a united fashion, opposed the bill. I mentioned the 3-year sunset provision. I want it understood by all Members of this body that I will be against any bill that comes out of the conference committee that doesn't have a sufficient sunset provision. This is not changing Anglo-American jurisprudence for all time; this is a 3-year bill. We insisted on it after it came out of the Commerce Committee. Second, the business community originally talked about a vague Federal defense that would essentially give them protection if they engage in reasonable efforts. On the basis of what we heard from the consumer groups, the Democratic leader of the Y2K effort, Senator Dodd, and I thought that was too vague, to give corporate defendants that kind of break. So we cut that out. Third, we dropped the new preemptive Federal standard for establishing punitive damages. The only people we are protecting are the small business people. We may have a philosophical difference of opinion on that. We think those folks deserve protection. On the question of joint and several liability, when it came out of committee, even if you engaged in fraud, even if you had a low-net- worth defendant, there wasn't protection for the plaintiff. We insisted on those kinds of changes. We said if a corporate defendant engages in outrageous conduct, if they are trying to rip somebody off, you bet joint and several applies. Senator Dodd and I insisted on that provision as well. Also, a provision which is certainly not popular in the business community: There is liability for directors and officers if they make misleading statements or they withhold information regarding any actual or potential Y2K problems. So at the end of the day, I believe we have a balanced bill. The defendants have an obligation under this legislation to go out and cure problems, to get their businesses online and make sure they are in a position so that this technology-driven economy can continue to hum as it has. The plaintiffs have equal obligations. They have a duty to mitigate. So there are obligations on the part of the defendants and obligations on the part of the plaintiffs. But this is a narrow bill. It is going to discourage frivolous claims, but it is also going to make sure that those who have a legitimate, honest concern, as in that example of a small business I outlined here this morning, that that small business is going to be able to go after all of the parties, all of the parties responsible, and hold them liable for the portion of the problem to which they actually contribute. So I am very hopeful the Senate will pass this legislation. We heard mention of the trial lawyers on the floor of the Senate earlier. Probably, prior to my involvement in this legislation, I was considered one of the better friends of those folks. Mention was made of the tobacco issue. I was the Member of Congress who got the tobacco executives under oath to say nicotine was addictive, which I think has had a little bit to do with helping to protect kids and consumers in this country. So I don't take a back seat to anybody in terms of standing up for consumer rights. I say to the Senate today that as a result of months of difficult negotiations, led by the chairman of the Commerce Committee, Senator McCain, the Democratic leader of the Y2K effort, Senator Dodd, myself, Senator Feinstein, and others, we have brought a balanced bill to the floor of the Senate. It is going to ensure that we do not throw a monkey wrench into this technology engine that is doing so much to ensure our prosperity.

Mr. WYDEN. Yes. Privilege Of The Floor

Mr. WYDEN. As soon as I have made this point, because it is the chairman's time. I think that is so vague that it is going to ignite a litigation derby. That is No. 1. No. 2, we have had a kind of mixing of the concept of punitive damages and proportionality by the Senator from Massachusetts that I think is just not borne out by the bipartisan bill. Our punitive damage limitation applies only to small business. It has nothing to do with reckless behavior or careless behavior. On proportionality, we are saying that you can hold everybody liable for exactly what they contribute, whether they are a small business or anything else. Finally, on the example of the person, I believe it was Mrs. Barnes, and the chemical plant, she has all her existing remedies with respect to personal injury and wrongful conduct under negligence law. That is all outlined on page 10. I appreciate the chairman of the Commerce Committee yielding me the time to briefly make a response to the Kerry amendment. As I say, I am a Senator who agrees with the Senator from Massachusetts on so many things. I do share his view that I hope by the time we are done with this legislation, we can have something that gets upwards of 70 votes. But suffice it to say, this Senator believes, with all due respect, the proposal of the Senator from Massachusetts will be a lightning rod for a variety of frivolous lawsuits. I thank the chairman of the committee for yielding. Mr. KERRY addressed the Chair.

Mr. WYDEN. Will the chairman yield briefly?

Mr. WYDEN. Mr. President, I will be very brief. I want to respond to the point the Senator from Massachusetts made with respect to the standard that he would apply in identifying the potential for Y2K failure. I believe that using language that vague virtually ensures that a significant number of frivolous cases are going to end up going to juries--exactly what we fear. What will happen, companies will attempt to defend themselves, the judge will be offered a motion to dismiss, and the company will say: It is frivolous; we move to dismiss the case. The judge will look, and if this were the standard that were actually adopted, he would say: I don't know whether they identified the potential for Y2K failure. And we would, in fact, be igniting an additional round of frivolous lawsuits. A motion to dismiss under this standard will get by because it is so vague. With respect to the economic losses the Senator from Massachusetts has talked about and believes are inadequately addressed under our bipartisan legislation, in this bill we keep State contract and tort law in effect. We keep State contract and tort law in effect. The problem is that there are some who disagree, some who would essentially like to create torts out of these contractual rights where no torts exist. Finally, with respect to punitive damages, the Senator from Massachusetts said again that our bipartisan bill would hollow out, for example, protections that are needed for consumers. We ensure our standard of evidence with respect to this is in line with State requirements. Again, we are trying to take a balanced approach. I hope my colleagues will oppose the Kerry amendment. I think it ensures we will see a significant number of frivolous suits not being dismissed where they ought to be but essentially ending up going to juries and causing great economic duress early in the next century. I yield the floor.

Mr. WYDEN. Will the Senator yield on one point?

Mr. WYDEN. Is that available under current law?

Mr. WYDEN. Will the Senator yield?

Mr. WYDEN. We apply State contract law to these economic losses. What we say is, you get your economic loss under current law if your State law lets you. The Senator from Massachusetts is absolutely right. There is a sincere difference of opinion here. We are saying economic losses should be governed by State contract law. The Senator from Massachusetts says that he would like to go with a different concept. That is the difference of opinion here.

Mr. WYDEN. I appreciate my colleague yielding. This goes right to the heart of the debate. We essentially say that State contract law will govern in these jurisdictions. The Senator from Massachusetts believes in a variety of instances that there should be other remedies. He is creating other remedies during this 36-month period where we are trying to present frivolous lawsuits. The key principle here and what is now being debated is that under what Senator McCain, Senator Bennett and Senator Dodd, the leader on our side on the Y2K issue, have said, we are going to protect State contract law with respect to economic losses. But we don't feel it is appropriate to try to create new remedies at this time when we are trying to prevent these frivolous lawsuits. I am very appreciative to the Senator from Utah for yielding to me. I hope our colleagues will see that on this point of economic loss, State contract law is fully protected.

Mr. WYDEN. If the Senator will let me reclaim my time, I will read the precedence we are citing with respect to our opinion that our bill covers economic losses in line with State law and common law. Let me read to the Senator the precedent: The prevailing common law rule is that ``recovery of intangible economic losses is normally determined by contract law.'' That is Prosser, 1984. Accordingly, the courts have essentially allowed plaintiffs to address these matters in State contract law by Clark v. Int'l Harvester Company, Chrysler v. Taylor, Inglis v. American Motor Company. Our position is that the economic loss rule in our bill is merely an explicit recognition of this sensible principle, which is in line with the legal precedence I cited, and also Prosser.

Mr. WYDEN. I think the Senator is talking about the tort section.

Mr. WYDEN. If I could reclaim my time to respond to the Senator, first, we made it very clear regarding economic losses. We want to see people recover in line with their State contract law. If the Senator can show me something in the 2\1/2\ pages that he is so alarmed about--he has referred to the 2\1/2\ pages now three or four times--if the Senator can show me something in those 2\1/2\ pages that indicates that a plaintiff could not recover through their State contract law economic losses, I guarantee myself, Senator Dodd, and Senator McCain are interested in working with the Senator on it. We cannot find anything. We have precedence and we have a legal analysis that backs up our point of view. If the Senator finds something in those 2\1/2\ pages that the Senator thinks indicates that a plaintiff cannot recover their economic losses according to State contract law, we will be very open to seeing it.

Mr. WYDEN. Our interpretation and our legal analysis, which I am happy to give, indicates the plaintiff can recover exactly what they are entitled to today. They are not going to get any more. I recognize what the agenda is here. I respect that we have a difference of opinion. But the bottom line is--I am happy to give our legal analysis--they can recover exactly what they are entitled to today.

Mr. WYDEN. If I could refer the distinguished Senator from South Carolina to the specific section, I have been talking about section 11, contractual damages. I gather the Senator from North Carolina, who is getting us into this area, was largely talking about the tort section. That, of course, is the difference of opinion here. I believe it would be a mistake to try to ``tortify'' these contractual rights at this time when we are staring, early in the next century, at all of these liabilities. I have three good friends with whom I agree on probably the vast majority of issues that come up in this body who see it otherwise. I recognize that. But I want to, again, in the name of trying to work things out, make it clear if there is anything in the contract section--in the contract section--that would suggest a plaintiff cannot get the economic losses they are entitled to under State contract law, I am very certain Senator McCain and Senator Dodd and I will be happy to look at that. We do have a difference of opinion on this matter involving torts.

Mr. WYDEN. The jurisdictions differ. But what we are trying to adhere to, with respect to economic losses and contracts, is the status quo. If there is some evidence we can be shown indicating otherwise, we will be happy to take a look at it. I have taken an awful lot of time. I yield the floor.

Mr. WYDEN. No. Not at all. In fact, let me again read from our legal analysis: The economic loss rule is a widely recognized legal principle that has been adopted by the United States Supreme Court in the vast majority of States. It states a party who has suffered only economic damages must generally sue to recover those damages under contract law, not under tort law. Tort law generally applies only where a party has suffered personal injury or damages to property other than the property in dispute. So we are having, I guess, a duel of legal analyses. But we are happy to share ours. We believe, again, the court precedents and the specific analysis I am citing make it very clear that recovery that is available today for economic losses under State contract law is not being altered in any way by this bill.

Mr. WYDEN. I appreciate having the chance to look at any alternative language the Senator from North Carolina wants to pursue. The Senator raised the question of whether or not plaintiffs ought to be able to circumvent the provisions of State contract law by repackaging suits as tort claims. That has not been allowed by the courts. If the Senator is talking about something else, we are happy to look at this. What we have in our legal analysis, and I have cited the specific cases that back up our particular point, is an indication that we believe we are protecting plaintiffs and plaintiffs' rights to recover in line with State contract law on economic losses. If the Senator is not trying to ``tortify'' contracts, I am certainly willing to work with him on any kind of language.

Mr. WYDEN. I thank the chairman. It seems to me that on the basis of everything we have gone through in terms of the committee, there is a reason that the high-tech community is overwhelmingly opposed to the Kerry amendment. As far as I can tell, there is this company the Senator from Massachusetts has talked about, and I will acknowledge that. But the high-tech community, as far as I can tell, is overwhelmingly opposed to this Kerry amendment. As far as I can tell, the reason they are is that the Kerry amendment introduces vague, ill-defined terms that are going to trigger more litigation. On the basis of everything we went through in the committee, is it the chairman's judgment that that is the reason the high-tech community is overwhelmingly opposed to the Kerry proposal now before the Senate?

Mr. WYDEN. Mr. President, if I can reclaim my time, there is a difference of opinion here on the matter of economic losses. In the 2\1/2\ pages the Senator from North Carolina has cited, we believe every plaintiff is going to be able to recover exactly what they are entitled to recover today. If in fact there is some evidence to the contrary, we will certainly be happy to pursue that.

Mr. WYDEN

Mr. WYDEN. I want to thank you on behalf of the people of Oregon for your willingness to work with us on this very important issue. There are indeed serious concerns surrounding chemical demilitarization, but Oregonians are committed to working with the Army and the Chemical Demilitarization Program to meet the obligations under the Chemical Weapons Convention. The future and success of the Chemical Demilitarization program will depend on the communication we enter into, and the cooperative solutions that we produce. This is a very challenging program for both the Army and the good people of the depot states. We acknowledge and appreciate all the hard work that has been done thus far, and very much look forward to the completion of the chemical demilitarization project in Oregon.

Mr. WYDEN

Mr. WYDEN. Mr. President, today I am introducing legislation, along with Congressman Walden in the House of Representatives, that would fight the scourge of negative political campaigns with the simple yet powerful tool of accountability. If candidates choose to run for office by disparaging their opponents rather than standing on their own records and beliefs, they should at least be expected to take responsibility for the ad campaigns that they run. Under this legislation, there would be meaningful financial penalty--in the form of higher advertising rates--for those who fail to do so. For me, this bill arises out of unpleasant personal experience. I was elected to this body in a special election against the man I am now proud to call my friend and colleague, Gordon Smith. That campaign was the nastiest, most negative, least edifying political season that my state has ever been through. The unabashedly negative ads that both of our campaigns put on the air were a sour departure from Oregon's tradition of responsible, thoughtful politics. I eventually became so disgusted with what my own campaign had become, that with only a few weeks before the election, I got rid of all my ads, destroyed negative mailings that were about to be sent out, asked others who were airing negative ads on my behalf to desist, and started over with a campaign that was 100 percent positive. I didn't know if it would be a smart campaign strategy or a kind of political suicide, and I didn't much care. Win or lose, I wanted to be proud of the way that I had conducted myself. What I learned all too well in that campaign is that negative politics corrupts everything that it touches. It harms not only its target, but its sponsor as well. Negative ads are one of the biggest reasons for the cynicism and even disgust that so many Americans feel toward the political process. They cheapen the very institution of democracy. There's no way, of course, to mandate a sense of shame or legislate an end to negative ads. But in an era when elections are determined more and more by television and radio advertising, it is not too much to ask that candidates be held responsible for the statements they make in their ads. Under current campaign law, broadcasters are required to give qualified candidates for federal office their lowest price for ads, what is known as the lowest unit broadcast rate. In order to qualify for this rate, candidates must comply with federal campaign finance laws, and include proper disclaimers in the ad, among other regulations. The Political Candidate Personal Responsibility Act would attach two additional requirements to the discounted ad rate. The first requirement is that for both television and radio advertisements, the lowest unit rate will only be available if a candidate, when referring to his or her opponent, makes the reference him or her self. Radio advertisements must also contain a statement by the candidate in which the candidate identifies him or herself and the office for which the person is running. The second requirement is that in any television or radio ad where a candidate makes reference to his or her opponent, the candidate must appear or be heard for at least 75 percent of the broadcast time. If a candidate chooses to air an advertisement that does not comply with these requirements, he or she will be ineligible to receive the lowest unit rate for a period of 45 days in a primary and 60 days in a general election. In other words, if you want the benefits of discounted broadcast time, you can't make disparaging statements that you aren't willing to say yourself. No more hiding behind grainy photographs, ominous music, and anonymous announcers. Ultimately, one of our greatest responsibilities as elected officials is to encourage greater public participation in all levels of the political process. Campaign activities should not only represent the views of the candidates, but they should also encourage voters to participate in the democratic process. The growing negative trend of campaign advertisements degrades the process and discourages people from becoming involved. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WYDEN

Mr. WYDEN. Mr. President, today I am introducing legislation, along with Congressman Walden in the House of Representatives, that would fight the scourge of negative political campaigns with the simple yet powerful tool of accountability. If candidates choose to run for office by disparaging their opponents rather than standing on their own records and beliefs, they should at least be expected to take responsibility for the ad campaigns that they run. Under this legislation, there would be meaningful financial penalty--in the form of higher advertising rates--for those who fail to do so. For me, this bill arises out of unpleasant personal experience. I was elected to this body in a special election against the man I am now proud to call my friend and colleague, Gordon Smith. That campaign was the nastiest, most negative, least edifying political season that my state has ever been through. The unabashedly negative ads that both of our campaigns put on the air were a sour departure from Oregon's tradition of responsible, thoughtful politics. I eventually became so disgusted with what my own campaign had become, that with only a few weeks before the election, I got rid of all my ads, destroyed negative mailings that were about to be sent out, asked others who were airing negative ads on my behalf to desist, and started over with a campaign that was 100 percent positive. I didn't know if it would be a smart campaign strategy or a kind of political suicide, and I didn't much care. Win or lose, I wanted to be proud of the way that I had conducted myself. What I learned all too well in that campaign is that negative politics corrupts everything that it touches. It harms not only its target, but its sponsor as well. Negative ads are one of the biggest reasons for the cynicism and even disgust that so many Americans feel toward the political process. They cheapen the very institution of democracy. There's no way, of course, to mandate a sense of shame or legislate an end to negative ads. But in an era when elections are determined more and more by television and radio advertising, it is not too much to ask that candidates be held responsible for the statements they make in their ads. Under current campaign law, broadcasters are required to give qualified candidates for federal office their lowest price for ads, what is known as the lowest unit broadcast rate. In order to qualify for this rate, candidates must comply with federal campaign finance laws, and include proper disclaimers in the ad, among other regulations. The Political Candidate Personal Responsibility Act would attach two additional requirements to the discounted ad rate. The first requirement is that for both television and radio advertisements, the lowest unit rate will only be available if a candidate, when referring to his or her opponent, makes the reference him or her self. Radio advertisements must also contain a statement by the candidate in which the candidate identifies him or herself and the office for which the person is running. The second requirement is that in any television or radio ad where a candidate makes reference to his or her opponent, the candidate must appear or be heard for at least 75 percent of the broadcast time. If a candidate chooses to air an advertisement that does not comply with these requirements, he or she will be ineligible to receive the lowest unit rate for a period of 45 days in a primary and 60 days in a general election. In other words, if you want the benefits of discounted broadcast time, you can't make disparaging statements that you aren't willing to say yourself. No more hiding behind grainy photographs, ominous music, and anonymous announcers. Ultimately, one of our greatest responsibilities as elected officials is to encourage greater public participation in all levels of the political process. Campaign activities should not only represent the views of the candidates, but they should also encourage voters to participate in the democratic process. The growing negative trend of campaign advertisements degrades the process and discourages people from becoming involved. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WYDEN

Mr. WYDEN. Mr. President, as the Senate prepares for a Tuesday cloture vote on the Y2K litigation reform legislation, I want to spend just a few minutes this afternoon trying to describe where I believe we are in the course of the Senate debate and all the bipartisan progress that has been made in the last few weeks on this issue. I especially emphasize the bipartisan focus that has been taking place in the Senate. The House had a vote, as the Presiding Officer knows, this week. Regrettably, it was pretty much along partisan lines. There is certainly nothing partisan about this issue. If we have chaos early in the next century as a result of Y2K frivolous lawsuits, folks are not going to be sitting around asking whether Democrats or Republicans caused it. They are going to be saying: What was the problem? Why didn't the Congress deal with it? Fortunately, the Senate, unlike the House, has been working in a bipartisan way to deal with this. On the Republican side, Chairman McCain and Chairman Hatch, Senator Gorton, Senator Bennett, and a variety of Senators have worked with me and Senator Dodd, who is the Democratic leader on this issue and has done such a good job on the Y2K committee. And Senator Feinstein has made enormous contributions. She represents California, of course, a State that has a great interest in technology issues. The most important thing, as the Senate goes to the important Y2K debate next week, is for all of us to recognize that we have taken a completely different approach from that of the House of Representatives. There was no evidence of bipartisanship in the House last week. That has not been the case in the Senate. I also want to make it clear, both Senate Democrats and Republicans are interested in working with the White House on this legislation. For the White House to veto a responsible Y2K bill would be like throwing a monkey wrench into the technology engine that is driving this Nation's economic prosperity. I cannot believe the White House would want to do that. I know there are many in the White House who have ideas and suggestions and are talking to Senators of both parties. We are anxious to hear from them, because the Senate is going to move next week to this debate and now is the time for them to come forward with their practical suggestions. As the Presiding Officer knows, this is a topic that cannot wait. There are a variety of issues before the Senate where the immediacy may not be all that crucial. This is an issue that cannot wait, because if we do not deal with it now, I personally believe what will happen is, early in the next century we really will have chaos as a result of this Y2K situation. The Senate could find itself back in a special session at that time having to deal with it. It is much better to do it now and to do it in a bipartisan way. I want to spend a few minutes talking about how this effort to make this issue bipartisan and ensure that it is fair to both consumers and business has evolved over the last few weeks. The legislation that is coming before the Senate early next week is the legislation that began in the Senate Commerce Committee, led in that effort by Chairman McCain and Senator Gorton. Unfortunately, there was a strict party-line vote in the Senate Commerce Committee. I and others said there were a whole lot of features of that original Senate Commerce bill that were just unacceptable to us. For example, it included language that would have provided what is called a ``reasonable effort'' sort of defense which just was not fair to the plaintiff and to the consumer, and I and others said that we could not support the bill at that time. But after it came out of the Senate Commerce Committee, Chairman McCain, to his credit, with other leaders on the Republican side of the aisle, made it clear that they wanted to work with Senator Dodd, Senator Feinstein, Senator Kerry, myself, and others to fashion a truly bipartisan bill. I believe that is what the Senate has before it now. For example, the legislation which is coming before the Senate on Tuesday, which we will vote on Tuesday morning, has a sunset provision in it. We have heard all this talk on the floor of the Senate about how Y2K litigation legislation is going to be changing the tort laws and our legal system for all time, that it is going to be making these changes that are just going to last for time immemorial. The fact of the matter is, the Y2K legislation sunsets in 2003. It is for a short period of time, and for a period of time to deal with what we think will otherwise be a variety of frivolous lawsuits and unnecessary litigation. Second, the legislation which will be before the Senate early next week does absolutely nothing to change the tort remedies that consumers would have if they were injured as a result of a Y2K-related problem. For example, if an individual is in an elevator that falls as a result of a computer failure, and tragically falls, say, 10 floors in an office building, and that individual is badly injured or killed, in that instance all of the existing legal remedies, all of the existing tort remedies that are now on the books, would still apply. The legislation before the Senate now would not touch in any way, not in any way, those remedies for personal injuries that would come about as a result of a Y2K failure. So those two consumer protections--the sunset provision and ensuring that tort remedies are available to injured consumers--are in place and there to protect the public, and it is important that the Senate know that as we go to the upcoming Tuesday vote. Third, the legislation which is before the Senate now eliminates the new and vague Federal defense, ``reasonable efforts,'' which was what was in the original Commerce Committee legislation. We think that was simply too mushy, too vague. It has been eliminated. Fourth, after the legislation left the Commerce Committee, there were concerns about a new preemptive Federal standard for establishing punitive damages. Now, under the legislation before the Senate, the current standards as set out in our various States are going to prevail. Fourth, after the legislation left the committee, we restored punitive damages in the most important cases. If a defendant is acting in bad faith, is engaged in egregious conduct that is offensive to consumers, all of the opportunities for punitive damages will lie. Also, if the defendant is insolvent, there will be a chance for the plaintiff to be made whole in those kinds of instances as well. So the principle of joint liability for defendants in these key areas is in fact kept in place. Next, we restore liability for directors and officers when they make misleading statements and withhold information regarding any actual or potential Y2K problem. So all of that was essentially in the changes which Senator McCain and I brought to the Senate several weeks ago. We thought that that showed a good-faith effort to work with all sides, to work with the technology community, to work with consumer organizations. We consulted with the organizations representing trial lawyers. We thought it reflected a good balance. After that effort, Senator Dodd, the Democratic leader on the Y2K issue, presented a number of other very, very good suggestions, and those have been added as well. So the Senate now has a Y2K reform bill in front of it where there have been 10 major changes made since this legislation left the Commerce Committee, changes that Senator McCain and I agreed to, that we thought did the job. Senator Dodd came forward with some other additional and excellent changes. And Senator McCain, to his credit and effort to be bipartisan, accepted those as well. So we have now, I think, addressed what has been the original concern of a number of Senators. We keep in place, for example, the States' standards with respect to evidence in these cases. There was a concern by some Senators that somehow this legislation had raised the bar in terms of the plaintiff having to meet higher standards of evidence in order to make their case. We kept the current State evidentiary standards. So now in fact our standards with respect to evidence track the language in the securities litigation reform bill that was passed and signed into law as well as the 1992 Y2K Information Readiness Disclosure Act. So it is clear that there is precedent for the evidentiary standards we are using in this legislation. These are major changes. They were put together by a bipartisan group and together, I think, reflect the kind of legislation that the Senate ought to pass and I think will pass when we get an opportunity to vote on the legislation on the merits. I will also tell you that this makes the Senate bill a very, very different bill from the legislation the House of Representatives enacted a few days ago. The House legislation in fact had a vague reasonable-efforts defense. We got rid of that after it came out of the Senate Commerce Committee. Senator McCain and I and Senator Feinstein and others looked at the legislation. We got rid of that. We said it is too vague, it is not fair to the plaintiff or the consumer. The House kept it earlier in the week. The House legislation did not have a sunset date in it. Our legislation does. It says this is going to be for a short time window, until 2003. A number of other changes which we think are not fair to the plaintiff or the consumer were areas that the House was unwilling to touch. On the directors and officers, they do not take the position that we take. They would limit liability for directors and officers. They do not take the position that we take on proportionate liability. And in fact they do have a higher evidentiary standard for the plaintiff and the consumer than we do. So the fact is, the Senate will be voting on a very, very different bill. I am hopeful that the Senate will strongly endorse our approach, which we think is fair to both plaintiffs and defendants. There have been other ideas floated in the last couple of days. I will wrap up just for a few minutes by talking about them, because I think if you look at what is being floated now, our legislation again falls right into the balanced, centrist kind of approach the Senate ought to be taking. I am going to wrap up just by briefly discussing some of these other ideas which have been circulated in the last couple of days. There are some who would like to limit the legislation only to commercial laws. This would deny the consumer the chance to get a Y2K problem fixed in a timely manner. That is what we do in our legislation. But some who would limit the legislation only to commercial laws would force those who are least able to afford attorneys to go out and have to hire them. Under our bill, the consumer tells the manufacturer or the vendor how they want the problem fixed and they would be able to get the job done in 90 days or less. I do not think the consumer wants to spend months and even years waiting in line after all the other frivolous lawsuits go forward before theirs. I think people want to get their problems solved and want to get them solved quickly. The fact is, under our legislation, if the consumer, if the plaintiff, is not treated fairly, if the consumers do not believe they get a fair shake, they can go out and file suit on the very first day--the very first day--and be in a position to have their issue aired immediately. Some of the other proposals that have been offered would offer no protection for small business from punitive damages. Without some protection, a small business could be facing an avalanche of lawsuits. Putting a small business out of business is, in my view, an odd way to try to fix the Y2K problem. But what Senator Dodd did, with the valuable additions that he made, was the kind of approach that I think really does protect the small business and deal with the issue of small businesses and punitive damages responsibly. Unlimited joint liability, and we have heard some who have advocated that, would declare open season on anybody in the wholesale or in the retail chain. You do that, and there is absolutely no protection for the small business mainstream retailer. Now, what has been interesting is that some who have opposed the efforts that our bipartisan group has made on the Y2K issue have said that we are against small business and that small business does not get a fair shake under our legislation. The fact of the matter is that hundreds of small business organizations have endorsed the bipartisan legislation that is before the Senate. I think the idea of having unlimited joint liability really would be inequitable to the small business. Certainly, we ought to make sure those small businesses that are most vulnerable get a fair shake. Other approaches just do not offer the incentives to business that we think are necessary to help fix the Y2K problem. They just force the consumer into the courtroom, really give businesses no reason to help mitigate the Y2K situation. This isn't a partisan issue. It affects every computer system that uses date information. Every piece of hardware, every piece of an operating support system, and every software program that uses date- related information may be affected. It is not a design flaw. There has somehow been spread across the country the notion that all of this stems from design flaws in our computer systems. It was an engineering trade-off. To get more space on a disk and in memory, the precision of century indicators was abandoned. It is hard for all of us to believe today that disk and memory space used to be at a premium, but it was. In the early 1960s, for example, computer memory cost as much as $1 million for what today can be purchased for less than $100. No computer programmer thought that the programs written then would still be running in the year 2000, but they are. The trade-off became the industry standard, and computers cannot work at all without industry standards. Those standards are the means by which programs and systems exchange information. I guess you could try to solve the Y2K problem by just dumping all the old layers of computer code that have been accumulated in the last few decades, but that is not a realistic way to proceed. Everybody involved, from CEOs to all of the people doing basic programming, need to continue the painstaking process of making sure that all systems are Y2K compliant. Our goal ought to be to bring every information technology system into Y2K compliance as soon as possible. That ought to be our principal focus and, at the same time, we ought to make sure, as our legislation does, that there is a good safety net in place. I am very hopeful that the Senate will pass this legislation. We all know that the economic good times that we have seen recently are being driven by technology. I have said repeatedly that if there is a veto of a bipartisan, responsible Y2K bill, that really would be like throwing a monkey wrench into the technology engine that is driving our Nation's prosperity. There is no other way to put it. We have to get a good bipartisan Y2K reform bill on the President's desk. We need to do it now. I am hopeful that the White House will work with us constructively in the days ahead. I think the changes that have been made since this legislation originally came out of the Senate Commerce Committee do the job. I can tell you, having heard from Senator McCain and Senator Hatch and Senator Dodd and Senator Feinstein, we are open to other ideas and suggestions as well. But we have to get this legislation moving. We have to get it signed. It is too important. I hope our colleagues get a little bit of R&R over the weekend. This has been a long week with the juvenile justice legislation. That bill and Y2K and other subjects are coming up next week, which will be hectic as well. I am very hopeful our colleagues will support the bipartisan Y2K bill that we will have before us Tuesday at 9:45. Mr. President, I yield the floor.

Mr. WYDEN

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