Ron Wyden

Mr. WYDEN

Mr. WYDEN. Mr. President, this is going to be an important week in the Senate. I am very glad there is going to be a discussion--a long overdue discussion--on juvenile violence and steps that can be taken to prevent it in our country.

Mr. WYDEN

Mr. WYDEN. Thank you, Mr. President.

Mr. WYDEN

Mr. WYDEN. Mr. President, I turn for a few minutes this morning to an issue that many Senators may not have heard much about but one that has great implications for the consumer, for intellectual freedom and the quality of life in our communities across the country. The issue I intend to focus on specifically is the proposed acquisition by Barnes & Noble of the Ingram book company. The price tag on this acquisition is $600 million, and it involves the Nation's largest bookstore chain, Barnes & Noble, joining forces with the Ingram book company, the world's largest book distributor. I am concerned that this deal will give Barnes & Noble a competitive stranglehold on the bookselling business in America. That is why last November I asked the Federal Trade Commission to investigate this proposed acquisition. Based on information I have learned in the last few days, I believe the Federal Trade Commission will soon make a decision on this proposed acquisition. I am very hopeful that when the Federal Trade Commission comes down with that decision, they will come down foursquare for the consumer. Right now across this country, thousands and thousands of Americans have stopped at small bookstores to sign petitions urging that this proposed acquisition be blocked. In fact, there is a special phone line at the Federal Trade Commission because there has been such a tidal wave of interest on this specific proposal. I will briefly outline this morning what I find troubling about this proposed deal. For a small bookstore, if this acquisition goes forward, they will have to depend on a megastore for the products they sell. The new bookstore colossus, with Barnes & Noble coming together with Ingram, will essentially have a huge competitive advantage that could work to cause great hardship for small bookstores in our country. Because the Ingram Company has information about sales and volume and ordering habits of small bookstores, is the new megastore going to use that information in a fair way? I am very concerned about it, but I can tell you that small bookstores across this country are very troubled when it comes to getting fair access to the titles they need, when it comes to how that information which Ingram has, that will be part of the new operation with Barnes & Noble, is used. I can tell you that small bookstores across this country believe this issue is literally one of life and death for them. Second, I am concerned about issues relating to intellectual freedom. My concern is that with this deal and the potential that there will be just a handful of big bookstores in our country dominating the Nation, what they will stock are largely the best sellers. I have had some experience with this. My father, who passed away, was an author and had a small publishing company. He said there is always room at the big stores in titles involving sex and drugs and rock and roll. But I am concerned about what is going to happen when we have just a handful of these megastores, whether we are going to see intellectual freedom prosper and those titles that are not always on the best seller list accessible the way they are today. Third, I am concerned about the vitality of our communities. These small bookstores in so many of our communities do more than just sell books. Yes, they sell publications and they make it possible for young people in rural America and inner cities and others to have a comfortable place to learn, but they are also a huge addition to Main Street in so many parts of rural Oregon and, I am sure, in Kansas where the Presiding Officer resides. Having been born in Wichita, we have talked before about life in rural America. I do not want to see those small bookstores becoming part of the Main Street of yesteryear in rural America. I am very concerned that if this proposed merger goes forward, as it is currently structured, it really will put a hardship on a lot of main streets in rural communities and will diminish the vitality of many of those towns. I admit to growing up a bit skeptical of some of these large megastores. As I said, my dad was an author, and I spent a lot of Sunday afternoons going through some of those megastores with my dad trying to persuade them to put one of his titles that did not fit their view of what was popular up close, up close to where the consumers were when they stopped to browse in the window. My father was concerned about the concentration of economic power in the bookselling business. I tell you, I think this deal, if it goes forward as structured, will confirm a lot of the worries that my dad and others like him have had about our country and where the bookselling business is going. Finally, I think we all understand that the bookselling business has changed certainly on the Internet. The Presiding Officer has worked with me on legislation which has been important to me such as the Internet Tax Freedom Act. The Internet has changed the bookselling business. There is no question about the fact that with Amazon.com and others in the business of selling books on line, the business has changed very dramatically. But I do not buy the idea that Barnes & Noble had to merge with Ingram in order to take on Amazon. I do not buy that idea at all. I think there is a role in our country for a variety of ways for consumers to order publications. I think there is an important place for the small bookstore, especially because of the contributions they make to main streets in rural communities and inner cities. I certainly do not want to hold back on-line shopping. That is why I was a principal sponsor in the Senate of the Internet Tax Freedom Act. So I do not take a back seat to anybody in terms of trying to ensure that we take advantage of all the technological innovations that are available for the consumer. What concerns me about this proposal is that a lot of small bookstores are not going to be able to survive. A lot of small bookstores are going to find it difficult to survive if Barnes & Noble has proprietary information about them, about their volume, about their sales practices, about the way they do business, and if that information is used against small bookstores. So I believe the Federal Trade Commission has in front of it an issue of extreme importance, one which will dramatically affect intellectual freedom, one which has great implications for antitrust policy and the consumer, one which will be vital to the well-being of communities and main streets across this country. I believe the Federal Trade Commission is going to rule soon on this proposed acquisition. I believe they are going to act in the interest of the consumer. I appreciate the opportunity to bring the Senate up to date on this important economic matter. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Will the Senator yield?

Mr. WYDEN. I thank the Chair. To begin the hour of debate that we have on the Y2K measure, I would like to discuss the agreement entered into late yesterday, the special effort that was led by Senator Dodd of Connecticut. Senator Dodd has been the leader on our side on the Y2K issue. The agreement that was entered into last night involved Senator McCain, myself, Chairman Hatch, Senator Feinstein, Chairman Bennett; a number of colleagues were involved. It seems to me that this effort, which was led by Senator Dodd, has directly responded to a number of the concerns outlined by the White House in the statement that was delivered yesterday to the Senate. I would like to briefly outline the proposals which are going to be offered by the Senator from Connecticut in conjunction with the group of us that has been working on a bipartisan basis for this legislation. Under the changes made yesterday, there would be punitive damage caps for small businesses. We ensure that there is fairness to both sides. We would eliminate punitive damage caps for the large businesses, those over 50 employees. We would protect municipalities and governmental entities from punitive damages. And we would also ensure that State evidentiary standards for claims involving fraud were kept in place. The legislation would continue to do the following. There would have to be a 30-day notice. The plaintiff would have to submit a 30-day notice to the defendant on the plaintiff's intentions to sue, with a description of the Y2K problem. If the defendant responded with a plan to remediate, then an additional 60 days would be allowed to resolve the problem. If the defendant didn't agree to fix the problem, the plaintiff would be in a position to sue on the 31st day. We would establish--and this was of great concern to a number of Members of the Senate--liability proportionality. We would ensure that defendants don't pay more than the damage they are responsible for but exceptions would include plaintiffs with a modest net worth who were not able to collect from one or more defendants and defendants who had intentionally injured plaintiffs. I think this is especially important because, clearly, if you have a defendant who has engaged in intentionally abusive conduct, you want to send the strongest possible message, and we do establish liability proportionality under the agreement led by Senator Dodd. We would also preserve contract rights so as to not interfere with parties who have already agreed on Y2K terms and conditions. We would also confirm the duty to mitigate. This is an effort to essentially confirm existing law that plaintiffs have to limit damages and can't collect damages that could have been avoided. This is an opportunity for potential defendants to provide widespread information on Y2K solutions to assist potential plaintiffs. Finally, our proposal would encourage alternative dispute resolution, and it also keeps, as a number of Democrats have discussed with us, all personal injury and wrongful death claims with every opportunity to use existing law to ensure protection for the consumer and for injured parties. I commend my colleague from Connecticut, Senator Dodd. He is the Democratic leader on the Y2K issue. Let me also say that what Senator Dodd has done, in conjunction with myself and Senator McCain, is he has essentially taken a lot of what we have done in the securities litigation area, a lot of what we have done in the earlier Y2K legislation, and used that as a model. So Senator Dodd's proposal, in my view, is very constructive. We now have an agreement that has been entered into by Senator Dodd, Chairman McCain, myself, Chairman Hatch, who has been exceptionally helpful on this effort, our colleague from California, Senator Feinstein, and Senator Bennett, who chairs the Y2K committee. So I am very pleased about this effort that was entered into late yesterday. I say to my colleagues--especially Democrats who were concerned about the statement issued earlier by the White House--this compromise effort that I have outlined--and we also issued a statement on it--responds directly to a number of the concerns that were outlined by the White House, especially the two perhaps most important, which are protection for injured parties as it relates to the opportunity to seek punitive damages where appropriate, and also to ensure that with respect to evidentiary standards, no one could say that this was now raising somehow for all time a change through Federal law. We specifically preserve State evidentiary standards for important claims involving fraud. But I would say, Mr. President and colleagues, this legislation is not going to be a change for all time in our laws. It is essentially a bill, and it has a strong sunset provision that is going to last for 3 years or so. We are trying to make sure, through that sunset provision, that we deal just with those concerns raised by Y2K. Y2K is not a partisan issue. It affects every computer system that uses date information. It was essentially an engineering tradeoff which brought us to this predicament; to get more space on a disk and in memory, the idea of century indicators was abandoned. It is hard for us to believe today that disk and memory space at a premium, but it was at one time. So in an effort to try to make sure during those earlier days there were standards by which programs and systems could exchange information, there was this engineering tradeoff. Now, some say you could just solve the Y2K problem by dumping all the old layers of computer code accumulated over the last few decades. That is not realistic. So what we ought to be trying to do is to make sure that information technology systems are brought into Y2K compliance as soon as possible. That is what the substitute that Senator McCain and I have offered seeks to do, and I believe that substitute has been vastly improved now by the leadership of the Senator from Connecticut, Mr. Dodd. I think as this discussion goes forward in the next hour, it is also important to recognize just how dramatic the implications are for this issue. I would like to cite one example which I know a number of my colleagues on the Democratic side can identify with very easily. A lot of my colleagues, led by Senator Kennedy, have been very concerned about making sure that there is a good prescription drug benefit for seniors under Medicare. It is the view of a lot of us that billions of dollars are wasted. Billions of dollars are wasted every single year as a result of seniors not taking prescriptions in a way so as to limit some adverse interaction. We waste billions of dollars and millions of seniors suffer as a result of not taking these prescriptions properly. And the best single antidotes that we have today are some of the new online computer systems which keep track of seniors' prescriptions and are in a position to help limit these adverse drug interactions. Well, the fact of the matter is, if we have, next January, chaos in the marketplace with our pharmacies and our health care systems and programs that help us limit these problems involving drug interactions, we are going to waste billions of dollars which could be used to get senior citizens decent prescription drug benefits, and we are going to hurt older people needlessly. Now, that has been a problem documented by the General Accounting Office. I raise it primarily because there has been a discussion in the Senate about how this legislation is just sort of a high-tech bill, and maybe some folks care about it in the State of Oregon where we care passionately about technology, or Silicon Valley, or another part of the country. I think we all know that technology is important in every State in our Nation. But I think it is very clear that these issues dramatically affect our entire Nation. It doesn't just involve a handful of high-tech companies; it involves millions and millions of Americans. The reason I have taken the Senate's time to discuss particularly how this would affect older people with their prescription drugs is that I think this is just a microcosm of this debate. I think this is just one small example of what this discussion is all about. Now, the Congressional Budget Office and other experts have estimated that Y2K-related litigation could cost consumers and businesses twice as much as fixing the Y2K problem itself. Now, I think those predictions may, in fact, be exaggerated; maybe they are wildly exaggerated. But I would much prefer to see the Senate craft responsible legislation now rather than to delay. And should the Senate not act on this legislation in an expeditious way, I believe there is a very real possibility that the Senate could be back here in January having a special session to deal with this issue. So I am very hopeful that we can go forward on it. I know that the minority leader, Senator Daschle, has worked very hard to be fair and to ensure that there is opportunity for colleagues to raise amendments. He has been working closely with the majority leader, Senator Lott. Those procedural issues are still to be resolved. I happen to agree with Senator Kennedy on this matter of raising the minimum wage. I think he is absolutely correct that we ought to raise the minimum wage. But I am very hopeful that we will not see these issues pitted against each other. It is extremely important to raise the minimum wage. I also think it is extremely important to deal with this Y2K issue in a responsible fashion. I know there are other Members of the Senate who wish to speak on this issue. They haven't arrived on the floor quite yet. I think I will just take an additional couple of minutes, as we await them, to outline some of the changes that have been made since the legislation left the Commerce Committee. At that time, regrettably, it was a partisan bill and did not yet have the constructive changes made by the Senator from Connecticut, Mr. Dodd, and did not at that point include the eight major changes that Chairman McCain and I negotiated. I would like to wrap up my initial comments by taking a minute or two to talk about those changes that have been made in the legislation. For example, Mr. President and colleagues, early on none of the bills had a sunset provision in the legislation. There was a great concern that somehow some change in tort law and contract law would be for all time, establishing new Federal standards in this area. It was a feeling on my part and upon the part of other colleagues that it was absolutely critical to have a sunset provision to ensure that we were talking just about problems relating to the Y2K and not creating massive changes in Federal tort law or contract law that would last for all time. None of the original bills contained a sunset date. We now have a 3- year sunset date making it very clear that any Y2K failure must occur before January 1, 2003, in order to be eligible to be covered by the legislation. Most industry analysts agree that Y2K failures are likely to follow a bell curve, a peaking on approximately January 1, 2000, and trailing off in 1 to 3 years. The sunset date that has been added tracks the very best professional analysis we have about the problem. I thank Chairman McCain for adding that in our initial negotiations. It is extremely important to me. I felt a lot of the Members of the Senate on the Democratic side felt that it was critical that this be a set of changes that was limited to a short period of time. That 3-year sunset addition, I think, sends a very powerful message that this is not changing tort and contract law for all time. I am very pleased that it has been added. Second, in the committee there were some vague, essentially new Federal defenses that I and others felt unfairly biased this process in favor of the defendant. Those were removed. Essentially what those original provisions said was that if defendants engaged in what was called a ``reasonable effort'' that they would be protected advocates. Consumers felt strongly that this language was mushy and vague. I agree completely with them on it. In fact, we originally had it in committee, and I opposed it at that time. But at the request of the consumer groups, this mushy, vague language that protects defendants who engaged in something called a ``reasonable effort'' was dropped. We also made changes to keep the principle of joint liability. After the legislation left the committee, we thought it was important to make sure that for cases involving fraud and egregious conduct we kept the traditional principle of joint and several liability. It was also extended to involve insolvent defendants. Senator Dodd has continued to help us in this area to ensure there is fairness for injured parties while at the same time making it clear that the defendants don't pay more than the damage for which they are responsible. The legislation continues to have in place what we negotiated after the legislation left the committee. This is incorporated into the announcements we made last night about the important efforts made by Senator Dodd. Finally, we thought it was important to make sure contract rights were paramount in this area. This legislation does not involve any changes whatever in personal injury rights. If, for example, an individual is in an elevator and that elevator falls 10 floors to the bottom of a building, and that individual is tragically injured, or dies, all of the personal injury remedies are kept in place. That is not something that would be affected by this legislation. This legislation involves contractual rights between private business parties. I and others felt that it was not adequately laid out in the committee legislation, that the contract rights were paramount in this area. As a result of the negotiations we had after the legislation left the committee, those rights were kept in place. I and others felt that was essential. I see my good friend from the State of Connecticut on the floor. I am going to yield in just one second. But first I want to take a minute and tell him how much I appreciate what he has done. He is, of course, the Democratic leader on the Y2K issue. I am essentially still a rookie in the Senate, and the Senator from Connecticut has been so helpful as we have tried to take this legislation that passed the committee unfortunately on a partisan vote and tried to make it responsive to the many legitimate issues that have been raised by our colleagues on this side of the aisle. The colleagues on this side of the aisle have been absolutely right about saying that the original bill was not adequate with respect to punitive damages. It wasn't adequate with respect to evidentiary standards. It didn't do enough to address the issues that we heard about from the White House late yesterday. As a result of an agreement led by the Senator from Connecticut, we have been responsive to those issues. We have essentially had nine major changes made after the bill came out of committee. The Senator from Connecticut has led the bipartisan effort. I discussed that bipartisan effort earlier involving Senator Feinstein, Senator Hatch, and Senator Bennett. I want to yield the floor now to the Senator from Connecticut, and thank him for all he has done to make this a bill that I believe can get the support of a significant number of Democrats, because it responds to what we heard from the White House. I thank him as well personally for all of the good counsel and help that he has given me. He is the leader on this issue. He is the one who navigated the securities litigation legislation. I pointed out how he took much of what the Senate learned on the securities litigation in the earlier Y2K bill and made that part of his compromise. I thank the Senator from Connecticut. Mr. President, I yield the floor. I look forward to hearing from the Senator from Connecticut. Mr. DODD addressed the Chair.

Mr. WYDEN. I will be brief. I concur completely with what the Senator from Connecticut has said. I want to ask him one question about the very helpful punitive damages agreement he negotiated with us last night. My understanding is, this agreement tracks very closely with what the Clinton administration has agreed to in the past with respect to product liability. In fact, our agreement seems to be more generous to plaintiffs than what the administration has agreed to in the past. In the past, they seemed to have said we ought to look at something that would have two times compensatory damages. This legislation has three times the damages, to make sure there is a fair shake for the consumer. Is that the understanding of the Senator from Connecticut? I ask because he has been involved in this issue involving punitive damage questions for quite some time. I think he has been very fair to plaintiffs in this area. It seems to me, actually, the Senator has gone beyond what has been talked about in various other discussions that we had. In just this minute I would like to take one more moment to hear the Senator's opinion on that issue which is a key issue for Democrats.

Mr. WYDEN

Mr. WYDEN. I thank my colleague. I will make this point very briefly. One of the key concerns that senior citizens now have is the problem of taking prescription drugs in the proper way. We have learned a great deal, for example, about how billions of dollars are wasted as a result of seniors not being in a position to get good information about drug interactions. One of the ways that we are best able to tackle that problem, and save billions of dollars, in order to make sure that seniors have their needs met in terms of prescriptions is to get some of this information online. This is now just beginning to be done. I submit that it is a perfect example of how we should not be pitting the issues relating to Y2K against those affecting low-income citizens. I think the Senator from Massachusetts is absolutely right with respect to minimum wage, and I just say that on the basis of even the example I have given with respect to drug interactions among the elderly, and the billions of dollars that are wasted as a result of people not being in a position to take their medicine in a proper fashion. That is an example of how this Y2K issue really does affect all citizens--even on the question of pay. If the computers break down, it is going to be hard for folks to get their paychecks early next year. So I think the Senator from Massachusetts is absolutely right with respect to the need to raise the minimum wage. And I share his view on the need to help seniors with respect to their prescriptions. But I do think that this question of addressing the Y2K issue in a responsible kind of way is beneficial to all Americans, regardless of their income, in our country. I appreciate the courtesy of the Senator from North Carolina. I want to wrap up with a couple of comments with respect to issues that Members of my party may have about the Y2K legislation. For example, there are a number of Senators on the Democratic side of the aisle who have been concerned about the question of punitive damages. Well, in the last few hours, we have made substantial progress on this issue. I happen to believe that it is critically important that when you engage in egregious conduct, you be in a position to send a very powerful message with respect to punitive damages on these questions of fraudulent activity. In the last couple of hours, a great deal of progress has been made with respect to this issue. Senator Dodd, in particular, deserves a great deal of credit. These changes that have been made in the last couple of hours with respect to punitive damages respond directly to what a number of Democratic colleagues have gotten from the administration this morning. The other issue I would like to touch on that was mentioned as well by a number of our colleagues on the Democratic side deals with the question of evidentiary standards. I think it is clear that we do need evidentiary standards that are fair to consumers and are fair to plaintiffs. In the last couple of hours, again, for Democrats looking at this issue, a substantial amount of progress has been made, largely due to the efforts of the Senator from Connecticut. I am very pleased to be able to report that those changes have been made as well. Democratic Senators, I think, will be pleased with some of the other changes as well. I know that early on--and I think this was a concern that the Senator from North Carolina, who has been such a valuable addition to the Senate, had raised--the bill that came out of committee talked about a very ill-defined defense for defendants, essentially saying if they engage in a reasonable effort, that would in some way provide them with a defense from wrongful conduct. That, too, has been eliminated. So I am very hopeful that Members on this side of the aisle will look at the progress that has been made in the last couple of hours. I want it understood that I very much want to work with the Senator from North Carolina on the points that he, I know, is going to raise in connection with this legislation. I want to see this bill go forward. I believe there is a coalition on both sides of the aisle that is now prepared to continue to work in a constructive kind of way to get this legislation done. As one who feels strongly about an increase in the minimum wage, as one who feels that this Y2K legislation, properly done, has the opportunity in it for us to help lower health care costs and make sure seniors don't have these drug interactions that hurt them and waste billions of dollars, I hope that in the name of trying to address both of those issues the Senate will move forward in a bipartisan way. I will just wrap up, Mr. President, by asking unanimous consent to have printed a letter from the American Bar Association on this legislation.

Mr. WYDEN. Mr. President, I will be brief. I know my friend from North Carolina wants to speak as well. First, as one who strongly supports Senator Kennedy on this matter of raising the minimum wage, I think he knows that I have worked since my days as codirector of the Gray Panthers to make sure that senior citizens would get prescription drug coverage. I want him to know that I look forward to working closely with him on these issues. I will, before the Senator leaves the floor, talk about why this Y2K issue is so important to those low-income seniors, and on a point that the Senator from Massachusetts has led the fight on. I want to do this briefly.

Mr. WYDEN. Mr. President, does the Senator from Arizona still have the floor? Mr. KENNEDY addressed the Chair.

Mr. WYDEN. Will the Senator yield?

Mr. WYDEN. Mr. President, I thank the leader for yielding. I want to thank him for his patience in an effort to try to make this legislation responsible and fair to prevent damage to our economy. I also want to tell him that we have made exceptional progress in the last couple of hours, particularly in dealing with the number of those issues that were raised in the administration's letter. I really commend Senator Dodd for all of his efforts. As you know, he is the senior Democrat on the Y2K Committee. He has done yeoman's work over the last couple of hours, particularly on the issue of punitive damages, which is the issue raised by this administration, and also on evidence standards to make sure that you are fair to the consumer and to the plaintiff. Senator Dodd has worked very closely with the chairman of the Commerce Committee and myself, Senator Hatch, Senator Feinstein. It is a bipartisan group. We are going to continue to work in the spirit that the leader has talked about. As a result of the progress in the last few hours, I think we have gone a considerable distance toward meeting the leader's objective. I thank the leader for yielding me the time, and also for his patience in this effort.

Mr. WYDEN. Mr. President, will the minority leader yield for a quick moment?

Mr. WYDEN

Mr. WYDEN. Mr. President, as always, the Senator from South Carolina has raised a number of important issues. I will take a minute or two to respond. First, it needs to be understood by the Senate that, under the substitute offered by the chairman and myself, a plaintiff can file suit immediately for injunctive relief should they choose to go that route. There have been all kinds of discussion raised and I gather it is always raised by the administration that somehow the rights of plaintiffs are being cut off. The fact of the matter is, under the substitute being offered by the Senator from Arizona and myself, it is possible for a plaintiff to move for injunctive relief immediately. What we are saying is, we ought to look at ways to try to bring about corrections in the private sector by private parties coming together, trying to encourage the alternative dispute resolution, a process which is clearly laid out in our legislation. Our substitute makes it very clear that if a plaintiff wants to file a suit on day one, they can. If they believe they are being jerked around in the marketplace, they can go out on that very first day and seek injunctive relief. We think it would be preferable and avoids causing this bedlam with everybody rushing to court. We think a lot of those approaches can be resolved by the parties coming together. Second, it seems to me those who will look at the substitute will understand in the vast majority of instances private contract law is going to govern. In most other instances it will be State law. In this administration statement, the notion is that somehow we are federalizing everything, where the substitute clearly lays out in the vast majority of cases contract law is going to take the lead in this area. That, regrettably, is a part of the administration's position that simply is not accurate. In fact, I and others raised that issue in the committee. We felt there wasn't a strong enough bias in favor of protecting private contract law. That was a change made after the bill left committee, because a number of consumer and other organizations thought it was very important. I think what is especially troubling about the policy statement that has now been offered by the administration--and this Senator and others are going to continue to work with them--is that they are essentially telling the Senate that over in the Justice Department they know more about the technical issues of running computers and the software businesses than do those businesses that have to do it every single day. The administration statement says this legislation is going to decrease the incentives, that these computer and software and other technology organizations have to be ready to assist customers to be ready for the transition of the next century. The fact of the matter is, all of these groups that have to actually work with computers and software every single day believe this legislation is absolutely critical to their being ready for the transition to the next century. Essentially what we have is folks at the Justice Department on this issue saying they know a whole lot more about the technical issues of the computer business than the folks who actually have to work with these systems every single day. I raise this issue again with respect to defendants who engage in truly outrageous, egregious action. There have been statements made on the floor by others and raised in the administration's letter as well with respect to the question of proportional liability and particularly what you are going to do about those defendants who engage in fraudulent activity. Under the substitute before the Senate, if a defendant is engaged in fraud, it is very clear that joint and several liability stays in place. There are no changes whatever with respect to joint and several liability if, in fact, a defendant is engaged in an egregious type of conduct. We also ensure that joint and several liability is kept when a defendant is insolvent. We felt it was important to make sure the plaintiff would have an opportunity to be made whole in instances where there was an injured party who badly needed a remedy. The fact is that there have been many, many changes made in this legislation since it left the committee. In order to be responsive to the consumer, the chairman of the committee reached out to a variety of parties--myself and others--in order to make those changes. I will take a minute or two to outline a couple of those. Perhaps the most important is the fact that this is a bill with a strong sunset provision. Neither the original McCain legislation nor the Hatch-Feinstein legislation, which has many, many good features, nor the legislation that our colleague, Senator Dodd of Connecticut, offered, which also has many good features in it--none of those bills had a sunset provision originally. We felt it was important to make sure that this legislation was not producing a set of changes for all time but it was going to be legislation that specifically targets problems directly related to Y2K so we don't have an open-ended onslaught with respect to product liability issues. I happen to think the Senator from South Carolina made a number of important points with respect to tobacco. I also happen to think there were other issues that were relevant on this debate. I and others in the other body were able to get the tobacco executives under oath to say that nicotine was addictive which certainly helped to open up this issue in order to protect consumers and injured parties. I think the Senator from South Carolina makes a number of important points with respect to the issue of lawyers who stand up for injured parties and consumers. Make no mistake, colleagues, this is not an open-ended tort reform bill. It is not an open-ended product liability bill. It is essentially a 3-year bill to deal directly with a problem that, frankly, could not have been envisaged at the time. At the time many of these decisions were made, there was a real question as to whether there would be adequate space for disks and for memory, so there was an engineering tradeoff adopted a number of years ago to get more space for disks and memory. We find it hard today to believe that at one point disk and memory space was at a premium. It was at that time. Now we are in a position where we have to come up with ways to ensure we make our computer and technology systems ready for the next century while at the same time providing a safety net when, in fact, there are real problems such as frivolous suits. I hope our colleagues will look at the many changes that have been made: The fact that there is joint liability when a defendant knowingly commits fraud, there is joint liability when you have an insolvent defendant in order to make a plaintiff whole, that there are punitive damages when an individual acts in bad faith, that there are not new preemptive Federal standards for establishing punitive damages, that there has been an elimination of the vague Federal defenses for reasonable efforts. I hope our colleagues will look at those changes that have been made. I, for one, am going to continue to work with the administration. I think there are many in the administration who realize this is a very, very serious problem. But I really have to say to the Senate today, with respect to the policy statement issued today, that there simply are a number of statements in there that, to be charitable, are inaccurate. The fact is, this idea that under our substitute injured persons are having their rights to sue cut off is simply wrong. Under our substitute, a plaintiff, an injured consumer, can go out and file a suit immediately on the very first day. Under the McCain-Wyden substitute, if you feel that you are a wronged party, you can file a suit the first day. We just do not think, as a matter of public policy, that is a particularly good idea. We would like to encourage parties to work together in the private sector. That is what we seek to do through the 90-day period. That is what we seek to do through the alternative dispute resolution system. But for those who think it is important to basically have the right to sue immediately, our legislation does that. We do it in a way that protects, first and foremost, contract law rather than writing whole new Federal standards to govern in this area. Finally, and this is perhaps the area where I have the strongest disagreement with what the administration has offered today, I find it very, very far-fetched to believe that there are folks in the Justice Department who know more about the technical issues of helping those in the technology sector get ready for the 21st century; that those folks would know more about this technical job we have in front of us than people who have to do it every single day in my home State of Oregon and across the country. Those are folks who right now, every single day, come to work saying, What are we going to do about working with our suppliers? What are we going to do about individuals overseas who may have been slow to get ready for Y2K? Those folks know a whole lot more about the challenge of getting ready for the 21st century than do the folks in the Justice Department. I hope we listen to those folks across the country in the small businesses, in the grocery stores and hardware stores, who, by the way, overwhelmingly support this substitute. We have had discussions about somehow the grocery stores and the hardware stores and others are ones that are not supportive of this legislation, who feel their rights are being cut off. The fact is they are overwhelmingly in support of this legislation. A lot of my colleagues, I guess, are saying: Where do we go from here? Is it just going to be impossible to move forward? I am not one who shares that view. I think there is a centrist coalition in the Senate that very much wants to get a responsible bill that meets the needs of consumers and injured parties, and is also concerned about preventing bedlam in the private marketplace next January. We have been meeting on an ongoing basis for several days now. We have had some very thoughtful ideas presented. Senator Dodd has some important suggestions; Senator Hatch, Senator Feinstein, and others have made real contributions. I understand our colleague from Massachusetts, Senator Kerry, continues to negotiate on several of the issues that are outstanding. So I am very hopeful that with the continued leadership of Tom Daschle and Trent Lott on this issue that we can continue to work through some of the outstanding issues. I have tried to respond this morning to areas where I think the administration is simply off base with respect to what the McCain-Wyden substitute is all about, but I want to make it clear I remain open to working with them. But I would say now is the time for the Senate to deal with this issue. If we let this go on, if we just let it fester and take months and months and months and arrive at no resolution of this problem, I happen to think we may well be back here early next January for a special session of the Senate having to deal with this problem. There is not a Member of this body who wants that result. Let us continue to work together. I plan to continue to negotiate with all the Senators I have mentioned this morning, and will continue to try to be responsive to the concerns raised by the distinguished Senator from South Carolina, although I think in the end it is quite clear we have a difference of opinion on this legislation. But this bill is too important to just say: This is it, the end, the administration has given its opinion and let's move on. I think we have an opportunity to proceed under the McCain-Wyden substitute. We have made nine major changes that were requested by various organizations to be responsive to areas where they thought the committee bill was inadequate. We have made it clear we are open to a variety of other suggestions. Senator Dodd, in particular, has offered several which I think are very important and ought to be addressed. I hope the Senate will continue to work in a bipartisan way to deal with this issue, because the time to deal with it is now and not next January. I yield the floor.

Mr. WYDEN

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

Mr. WYDEN

Mr. WYDEN. I thank the Chair. I have been here many fewer years than the Senator from South Carolina, but I can tell you, just listening to him over the last few minutes, I sure agree with what he has to say about Social Security, I sure agree with what he has to say about school violence and the connections that are so important in the community between law enforcement, counselors, and the students. I could go on and on. I have supported him on many of those issues in the past and am planning to do so in the future. But I did want to take the floor for just a moment and address a couple of the points that were made with respect to the Y2K issue specifically. I am very hopeful that we can still see the Senate come together on a bipartisan basis to deal with this issue. The fact of the matter is that the year 2000 problem is essentially not even a design flaw. It is a problem because a number of years ago, to get more space on a disc and in memory, the precision of century indicators was abandoned. And it is hard for all of us today to believe that disc and memory space used to be at a premium, but it was back then, and that is why we have this problem today. So what a number of us in the Senate want is to do everything we possibly can to ensure companies comply with the standards that are necessary to be fair in the marketplace, but also to provide a safety net if we see problems develop and particularly frivolous, nonmeritorious suits. Now, with respect to a couple of the points that have been made on the record, this notion that the sponsors, particularly Senator McCain and I, are trying to rewrite tort law for all time is simply not borne out by the language of this bill. This is a bill which is going to sunset in 2003. It is not a set of legal changes for all time. It is an effort to deal in a short period of time with what we think are potentially very serious problems. In fact, the American Bar Association--this is not a group of people who are against lawyers, but the American Bar Association itself has said this could affect billions and billions of dollars in our economy. So this bill will last for a short period of time. It doesn't apply to personal injuries, whatever. If a person, for example, is injured as a result of an elevator falling because the computer system broke down and is tragically injured or killed, all of the legal remedies in tort law remain. This is a bill that essentially involves contractual rights of businesses. We respect those rights first, and only when the marketplace breaks down would this law apply. We have heard a number of comments in the last few hours that this legislation throws out the window the principle of joint and several liability, a legal doctrine that I, following the lead of the Senator from South Carolina, have supported in many instances, particularly when it relates to vulnerable individuals who might be the victim of personal injuries. But this legislation specifically says that joint and several liability will, in fact, apply if you have egregious or fraudulent conduct on the part of the defendant. And, second, it will apply if you have an insolvent defendant so there will be an opportunity for the plaintiff to be made whole. We also make changes relating to directors and officers to ensure that they have to be held accountable. As to the evidentiary standard, the sponsors of this legislation have made it clear that they want to work with Senator Hollings and others who have questions about this standard to change it. What we wish to do is make it comply with the earlier legislation we overwhelmingly passed on Y2K. There have been a number of comments made today about the Intel Corporation and their views. I ask unanimous consent that a letter from the CEO of the Intel Corporation be printed in the Record.

Mr. WYDEN. I thank the Chair. The key sentence is, the Senate is expected to vote upon a bipartisan text for S. 96, the Y2K Act, which we will strongly support. There is no question about the position of the company on this legislation. Finally, we have made nine major changes in this legislation since it passed the committee. I voted against it in the committee because I thought Senator Hollings was absolutely right--that the legislation at that time was not fair to consumers and to plaintiffs. But as a result of the changes that were made, I believed it was appropriate to try to come up with an approach that was fair to consumers and to plaintiffs as well as the small companies involved. There are other negotiations that are still going forward. Senator Dodd, for example, who is the leader on our side on the Y2K issue, has a number of good and practical suggestions. Senator Kerry has some thoughtful ideas on this as well. I am very hopeful that we can resolve the procedural quagmire on this issue and quickly get to a vote, up or down. Then as a result of the very useful discussion that we had between the majority leader, Mr. Lott, and Senator Kennedy and others, we can move on to the juvenile justice issue. Because I can assure you, as a result of what we saw in Springfield, OR, last year, we wish to have some positive contributions on that. Senator Gordon Smith and I have a bipartisan bill which has already passed the Senate once. I am hopeful we can deal with this Y2K issue expeditiously and then go on to the topic that millions of Americans, just as Senator Hollings has said this afternoon, are talking about and want to see the Senate respond to. Mr. President, I yield the floor.

Mr. WYDEN

Mr. WYDEN. Yes.

Mr. WYDEN. Thank you, Mr. President. I will be very brief. I specifically want to talk on this matter with respect to the evidence which would be considered in these suits. The sponsors of the substitute have made it very clear in the Senate that we will strike the clear and convincing evidence standard. It is an important point that the Senator from South Carolina has made. What we have indicated is that we think it is in the public interest to essentially use the standard the Senate adopted in the Year 2000 Information and Readiness Disclosure Act which passed overwhelmingly in the Senate. So we have something already with a strong level of bipartisan support, and it is an indication again that the sponsors of the substitute want to be sympathetic and address the points being made by the Senator from South Carolina. But at the end of the day, this is not legislation about trial lawyers or campaign finance. And I have not mentioned either of those subjects on the floor of the Senate. But this is about whether or not the Senate is going to act now, when we have a chance to address this, in a deliberative way, and produce good Government--something which will make sense for consumers and plaintiffs who are wronged and at the same time ensure that we do not have tumult in the marketplace early next year. I am very hopeful we can go forward with this legislation. I thank the Presiding Officer for the opportunity to respond. I yield the floor.

Mr. WYDEN. Mr. President, will the Senator yield?

Mr. WYDEN. Thank you, Mr. President. I thank the chairman of the Commerce Committee for his comments. I will just advise my colleagues where I think we are. First, I think it is important to note that the chairman of the Commerce Committee has made nine major changes in the legislation--all of them proconsumer, proplaintiff--since the time this legislation left the Commerce Committee. I and other Democrats felt it was important. I want the Record to show that those are major, substantive changes, and as the chairman indicated, we had some discussions with Senator Dodd last night and I am hopeful they are going to bear fruit as well, because Senator Dodd has tackled this in a very thoughtful way as well. I also think it is important that our leadership, Senator Lott and Senator Daschle, continue, as they have tried to do, to help us work through some of the procedural issues which are not directly relevant to this legislation, so that it is possible to vote on the McCain-Wyden substitute expeditiously. I want to tell the Senate that now is the time when this can be done in a thoughtful and deliberative way. I don't think the Senate wants to come back next January, when there is a state of panic, as I believe there well could be, over this problem. The time to do it is now. That is what we have been working on in committee. This is not a partisan issue. It affects every computer system that uses date information, and I want it understood how this happened. Y2K is not a design flaw; it was an engineering tradeoff. In order to get more space on a disc and in memory, the precision of century indicators was abandoned. Now, it is hard to believe today that disc and memory space used to be at a premium, but it was. The tradeoff became an industry standard, and computers cannot work at all without these industry standards. The standards are the means by which programs and systems exchange information, and it was recently noted: ``The near immortality of computer software came as a shock to programmers. Ask anybody who was there. We never expected this stuff to still be around.'' One way to solve the problem might be to dump all the old layers of computer code, but that is not realistic. So our goal ought to be to try to bring these systems into compliance as soon as possible and, at the same time--and this is what the McCain-Wyden substitute does--have a safety net in place. This is a bipartisan effort. I would like to briefly wrap up by outlining several of the major changes. The first is that there is a 3- year sunset provision. There are a number of individuals and groups who said, ``Well, this is just an effort to rewrite the tort law and make changes that are going to stand for all time.'' This provision says that any Y2K failure must occur before January 1, 2003, in order to be eligible to be covered by the legislation. Second, there were various concerns that there were vague defenses in the legislation, particularly terms that involve a reasonable effort. We said that that ought to be changed, we ought to make sure there aren't any new and ill-defined Federal defenses. That has been changed. Finally, and especially important, for truly egregious kinds of conduct and fraudulent activity, where people simply misrepresent the facts in the marketplace, we ensure that punitive damages and the opportunity to send a deterrent to egregious and fraudulent activity are still in place. So I think these are just some of the major changes we are going to outline in the course of the debate. I also say that the latest draft also restores liability for directors and officers, which was again an effort to try to be responsive to those who felt that the legislation was not sufficiently proconsumer. I only say--and I appreciate that the chairman of the committee yielded me this time--that I think after all of these major changes, which have taken many hours and, in fact, weeks since the time this legislation came before the Committee on Commerce, we have now produced legislation that particularly Democratic Members of the Senate can support. This is not legislation where, for example, if someone had their arm cut off tragically in a tractor accident, they would not have a remedy. We make sure that all personal injuries which could come about--say an elevator doesn't work and a person is tragically injured. This legislation doesn't affect that. That person has all the remedies in the tort law and the personal injury laws that are on the books. This involves ensuring that there is not chaos in the marketplace early next year, that we don't tie up thousands of our businesses in frivolous suits and do great damage to the emerging sector of our economy that is information driven. I thank the chairman for the many changes he has made, and I am especially hopeful that over the next few hours the two leaders, Senator Lott and Senator Daschle, can help us work through the procedural quagmire the Senate is in, so we can pass this legislation now, at a time where there is an opportunity to pursue it in a deliberative way. I yield the floor.

Mr. WYDEN. I do. I think there is one other important point that needs to be made. It seems to me that the legislation as it stands now makes it very clear that what is really going to govern the vast majority of cases is the written contractual terms between businesses. If you look at page 11 of the subcommittee report, it makes it very clear that the act doesn't apply to personal injuries or to wrongful deaths. What is going to apply are the written contractual terms between businesses. As I recall, the chairman of the Commerce Committee thought originally that in this and other major changes there ought to be a Federal standard in this area. There was a concern that was, again, writing new law and tort law. The chairman decided to make it clear that it was going to be written in contractual terms that were going to govern these agreements between businesses. What is the chairman's understanding of how that came about, and why those written contractual terms were important in this reform?

Mr. WYDEN. I ask unanimous consent to speak for 3 minutes just to briefly respond to several of the points made by the Senator from South Carolina.

Mr. WYDEN

Mr. WYDEN. Mr. President, I will be very brief. I know the Senator from South Carolina has important remarks to make this morning. I have joined with Senator McCain in cosponsoring this legislation that comes before the Senate, after voting against the bill that came out of the Senate Commerce Committee. I have done so because there have been at least seven major changes made in the legislation after it came out of committee so that now when it comes before the Senate it is a balanced bill. It is a bill, in my view, that will ensure that innocent consumers are fully protected while at the same time helping to prevent the kind of chaos we could have in our economy if we have scores and scores of unwarranted lawsuits as a result of the Y2K problem. As we all know, the Y2K issue is not a partisan issue. It affects every computer system that uses date information, every piece of hardware, every piece of an operating support system and all software that uses date-related information. Our goal ought to be to try to bring about Y2K compliance. That is our principal focus. The Senate is already on record in that regard. At the same time, we ought to put in place a safety net to ensure that innocent consumers, particularly small businesses, will have a remedy and will not see their businesses devastated. I wrap up my brief remarks this morning by outlining a few of the changes that Senator McCain and I worked on with Senator Dodd, Senator Feinstein, Senator Lieberman, and others, so that the Senate has a sense of the many changes that have been made to ensure consumers get a fair shake and that are in the bill before the Senate today. The first that I think is particularly important is we will make sure there is a sunset provision in this legislation. The original bill contained no sunset provision. There were some who said this is just opening up brand new areas of tort law that are going to exist forever, this is just a backdoor effort to hot wire the legal system and ensure that we are restricting liability suits in the future. That is not the future. There is a sunset date to ensure that we are addressing just legitimate problems that have come about as a result of the Y2K failures. Second, and another area I feel so strongly about, is we ensure, when there are really egregious, outrageous offensive instances of conduct in the private marketplace, fraudulent conduct, that punitive damages will still be available. It is important to us that there not be new preemptive Federal standards in that area. That has been done. Next, we have made changes with respect to the principle of joint liability. This is especially important where you have defendants who are involved, again, in committing these outrageous acts, essentially fraudulent acts. That is kept in place as well. So I do believe this is a bill that is targeted specifically at the kinds of problems that are going to be seen if we do not pass a balanced, responsible piece of legislation. This involves business-to- business activity. I suggest to some of our colleagues this has nothing to do with personal injury issues. If someone is injured, for example, as a result of an elevator accident because computers have broken down, and is maimed or killed, all of those personal remedies will lie. So those are briefly some of the changes since the bill came from committee. We have seen, again, the Senate wants to work in a collegial way on this. My good friend from South Carolina and I have had several spirited discussions on this issue in recent days. He feels very strongly about it. My part of the country has looked at technology as a big part of our economic future. We want to come up with a responsible, balanced bill. The Senator from Connecticut and I have put on the desks of all Democratic Members of the Senate today a letter which outlines a number of the changes that have been made. We heard earlier Senator Kerry is pursuing some discussions as well. So I am hopeful between now and next week we can have a bipartisan bill that is balanced, that comes before the Senate and builds on the work Senator McCain and I have tried to do since the partisan vote in committee. I look forward to working with my colleagues towards that end, and I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask the Senator from Minnesota for 10 minutes to address some of the important issues the Senator raised.

Mr. WYDEN

Mr. WYDEN. Mr. President, once again the Senate is grieving for one of our communities that has suffered a tragic school shooting. We are all profoundly saddened today by the news out of the State of Colorado. For those of us from my home State of Oregon, this feeling is, unfortunately, too familiar. It was just about a year ago that this same form of evil visited Thurston High School in Oregon. And I want to say, first and foremost, to the people of Colorado that Oregon's heart goes out to all of you today. The people of Colorado are in our prayers. If our experience can be any measure of comfort, I would offer the observation that in Colorado, just as it was in Oregon, the parents and students will find that their neighbors can be an incredible resource of support. There is more strength in our communities than we realize. And while nothing--nothing--can ever ease this sort of pain, that strength does possess a tremendous healing power. Mr. President, why are we seeing these tragedies in our country? We feel so good about the very strong economy. We play a preeminent leadership role in the world. There are so many good things in our Nation. But we send our children off to school in the morning and so often we have to worry that they might be gunned down by a classmate. What has produced this horrible evil? I do not come to the floor of the Senate today to say I have the answers, but I know that we are not doing our job in this body if we do not try to find them. And it seems to me those of us from the States that have seen this horrible scourge--the Senators from Colorado and Arkansas and Kentucky and my own of Oregon--need to sit down together-- and soon--and begin a meaningful conversation about the practical and concrete steps that can be taken to prevent these tragedies. We ought to talk with everyone, we ought to talk with Sarah Brady, who has one point of view, talk with the National Rifle Association, who has another point of view. We need to have a concrete dialogue with all who have been part of this national discussion to find a way to stop these tragedies. In the wake of what happened in Springfield, OR, Senator Gordon Smith and I worked, on a bipartisan basis, to make sure that if a kid brought a gun to school, action would be taken to treat that as a five-alarm warning. Looking at yesterday's tragedy, it seems to me that our bipartisan bill would not have been enough, because these students had never been caught with guns in school before. But the facts appear to be that the students there knew that this group was involved with weapons and that they had been engaged in potentially dangerous activities. We need to find ways to translate this knowledge into concrete approaches so the authorities can take steps to protect our youngsters in our schools. Mr. President, so many Members of this body are parents. Many of our colleagues have been blessed with grandchildren. It chills all of us to the bone to think that this can happen in our communities, and that it has happened too often. The people have elected us to lead. This is a problem which cannot be avoided. I am going to do everything I can, in a bipartisan fashion, with colleagues from other States that have seen these tragedies, to find those practical steps so parents across this country can have the certainty that when they send their youngsters to school they will come home safely at the end of the day. Mr. President, I yield the floor.