[Congressional Record Volume 145, Number 59 (Wednesday, April 28, 1999)]
[Senate]
[Pages S4325-S4330]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                Y2K ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 96, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 96) to regulate commerce between and among the 
     several States by providing for the orderly resolution of 
     disputes arising out of computer-based problems related to 
     processing data that includes a 2-digit expression of that 
     year's date.

  The Senate resumed consideration of the bill.
  Pending:

       McCain amendment No. 267, in the nature of a substitute.
       Lott amendment No. 268 (to amendment No. 267), in the 
     nature of a substitute.
       Lott amendment No. 269 (to amendment No. 268), in the 
     nature of a substitute.
       Lott amendment No. 270 (to the language proposed to be 
     stricken by amendment No. 267), in the nature of a 
     substitute.
       Lott amendment No. 271 (to amendment No. 270), in the 
     nature of a substitute.

  Mr. WYDEN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative assistant proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Voinovich). Without objection, it is so 
ordered.
  Mr. DODD. Mr. President, I take a moment on the pending issue before 
the Senate. The year 2000 litigation reform proposal has certainly been 
the subject of a lot of discussion over the last couple of days. As the 
ranking Democrat on the committee chaired by the distinguished Senator 
from Utah, Robert Bennett, we have spent the last couple of years 
looking at this issue--intensely the last year and a half. We have held 
18 or 19 hearings on the subject of this computer bug problem and its 
potential effect not only on our own economy but the global economy and 
the disruptions it would cause in the lives of average Americans, in 
everything from flying airplanes to operating elevators, emergency 
rooms in hospitals, schoolrooms and classrooms, the functions of small 
businesses that depend upon computer data information today to maintain 
their businesses.
  A legitimate area of concern has been raised regarding potential 
litigation surrounding this issue. I, for one, am very supportive of 
passing legislation to try to minimize the tremendous cost of lawsuits 
that could ensue for a number of years as a result of this anticipated 
but undealt with problem.
  I won't go into how the Y2K issue emerged. Suffice it to say that it 
went back to economies of scale a number of years ago when computers 
were in their infancy and we were trying to save space in developing or 
programming computer information. Rather than list all four digits, 
which took two more spaces, only two spaces were used, ending with the 
last two digits of the year rather than including all four digits. The 
assumption was, years ago, that modern technology would take over, the 
old computers would be replaced, and that new information would include 
the millennium, therefore solving the millennium problem.
  As we painfully know, with some 245 days to go now before January 1 
of the year 2000, that is not the case. Not only has this problem not 
been erased in terms of the date issue, but the embedded chip problem 
makes this a confounding issue.

[[Page S4326]]

  Had it not been for Senator Bennett of Utah calling out to all of the 
Members to get involved in this question, and my involvement with him 
after his initial interest in this in the Banking Committee where we 
examined financial institutions, I don't think we would have done as 
good a job getting the Federal Government and the country as a whole as 
interested in this subject matter as it is today. As our reports have 
indicated, we are actually in very good shape in many areas.
  However, there is the potential problem of litigation. Some estimates 
indicate that the cost of litigation surrounding the year 2000 problem 
could be as much as $1 trillion. That may be an exaggeration. No one 
knows for certain how big a problem this may be in terms of clogging up 
our courts--primarily with companies suing companies, I presume, in 
contract litigation--over failed businesses or machinery that didn't 
operate as advertised.
  There are several bills before us. We are trying to work out our 
differences, to see if we cannot put together a proposal here that 
would attract broad, bipartisan support of legislation that will do 
several things.
  First of all, it tries to avoid litigation altogether. I think this 
is common of all the various proposals. I do not have each one of them 
in front of me, but all the proposals try to have some waiting period 
or some means by which a plaintiff and defendant could see if they 
could resolve the issue which had prompted the litigation in the first 
instance. I think that is a wise inclusion here. We ought to do 
everything we can to avoid litigation and the cost to defendants and 
plaintiffs. So I commend the authors of those provisions for trying to 
minimize the cost.
  We then try to insist upon some specificity in the allegations, so 
plaintiffs would have to lay out in some detail what the charges are, 
where the shortcomings are, giving defendants an opportunity to know 
what they have been charged with. It sounds like a simple enough 
request, but in the past we have had a serious problem where merely 
broad, vague allegations were enough to prompt litigation that could 
tie up individuals for years and cost literally thousands, in some 
cases millions, of dollars to the defendants when, in the final 
analysis, there was a lack of proven culpability. So we are requiring 
some specificity in the allegations.
  We are also talking about trying to reduce the probability of class 
action lawsuits, particularly in an area which is primarily contract 
law. But in order to do that, there is a sense of proportional 
liability here, which is something we included in the securities 
litigation reform bill--which passed this body and the other body 
substantially a few years ago and ultimately, after an initial veto, 
was passed over the President's veto by the Senate and the House--and 
the uniform standards legislation which followed thereafter.
  The proportional liability idea is one of basic fairness. It says 
defendants ought to be brought into a lawsuit based on the percentage 
of their alleged culpability, not based on the depth of their pockets 
financially. If a company is 10-percent responsible for the problem, 
they ought to bear 10 percent of the cost of liability. In fact, the 
cases prove that too often what has happened is we have plaintiffs--
their attorneys--who go out and seek out the companies with deep 
pockets that may have had little or nothing to do with the issue but, 
because they are affluent potential marginal defendants, they get 
brought into the litigation. If there is a successful result on the 
part of the plaintiff, then that marginally involved defendant, under 
the joint and several provisions of most of our law in this area, no 
matter how marginally involved, are responsible for the full cost of 
the lawsuit, paying the awards.
  Again, I appreciate the lawyers who want to have that. I understand 
that is one way to get paid. But in fairness to those companies which 
are only marginally involved, it does not seem to be a very fair way to 
proceed.
  There are some very legitimate issues people raise about trying to 
come up with some modified version of the proportional liability 
provisions. They may have some value. I am still listening to their 
arguments, but I am not yet convinced that is such that we need to 
modify it in this kind of bill.
  The argument they make, and it has some appeal, is that in dealing 
with the year 2000 litigation, it is fundamentally contract law. Unlike 
securities litigation or litigation in product liability or other 
areas, in contract law the notion of proportional liability may not 
have as much meaning as it would in other areas. So there is some 
argument. There is an argument being made that you may have a more 
difficult time reaching offshore companies that are major computer 
producers, manufacturers, software manufacturers and producers. That 
argument, again, has some appeal. It has not yet persuaded this Senator 
to support any moderation in the proportional liability sections of 
these bills.

  The last series of ideas I would like to see incorporated--and I am 
prepared at the appropriate time, if we get to it, to offer an 
amendment, I hope with several of my colleagues who share these views--
is we ought not, in my view, have any caps on punitive damages except 
in the case of small businesses and municipalities. I do not think a 
cap on punitive damages is needed in this area. We are not talking 
about personal injury matters here; we are talking about contract law. 
I understand for smaller businesses that could be a huge problem and 
put them out of business--on a small lawsuit, destroy them. And for 
municipalities where taxpayers end up paying the costs of these 
burdens, I think most of our colleagues will accept those arguments.
  The second is to try to raise the limits or lift the limits on the 
directors' and officers' liability. In this area, I also do not think 
there is a need for caps on the amount of liability a director or 
officer should pay in a successful plaintiffs' suit dealing with Y2K 
issues.
  I say that because when we passed the disclosure act a year ago, 
dealing with the year 2000 legislation, we provided in that legislation 
a safe harbor for forward-looking statements by the officers and 
directors and managers of these businesses. It seems to me that 
protection plus the general business rule which protects business 
leaders from the kind of frivolous lawsuits that some might envision 
eliminates the necessity for having a cap on directors' and officers' 
liability in this area. So I include in my amendment lifting the cap on 
that issue.
  Last is the issue of the state of mind question, which is the one 
that is a little more thorny for people. This can get rather arcane and 
esoteric, but it is an important issue. Presently, under the bill 
offered by the Senator from Arizona, which is the bill before us, the 
one that is on the floor, and I believe under the bill offered by my 
colleague from Utah, Senator Hatch and others, that would have a state 
of mind that would require that it be--I think clear and convincing is 
the standard that is used. I may be wrong on one of those, but I think 
it is in the McCain bill.
  The argument there is that we used clear and convincing as a standard 
when we did the full disclosure bill. If we used it there, why not 
continue using it here? We used it there because we wanted to protect, 
in a sense, and encourage the leaders of industry and business to 
disclose to each other where they were in the Y2K remediation efforts. 
So, candidly, it was to make it more difficult for someone to sue an 
officer or director of a company that was reaching out to its clients, 
to its fellows in the business community, its peers, by sharing 
information. So it was part of the incentive of the Disclosure Act to 
get that information out.
  The reason I am uneasy about including clear and convincing in this 
bill is because I can see some who want to bring lawsuits on income-
related matters where it may actually be more of a product liability 
issue, it may be a tort issue, but the defendant will say it is an 
income issue.
  So, even though the plaintiff is not thinking about the Y2K problem, 
the defendant will use the Y2K defense, raising the bar to clear and 
convincing and make it very difficult for that plaintiff to be able to 
bring an action which has little or nothing to do with the year 2000 
issue.
  I also think we established in the securities litigation area a 
lesser standard. In fact, I know we did, in clear and convincing. It 
seems to me that by using the standard we used in the securities 
litigation area, we will be adopting a standard in a more parallel fact 
situation than the disclosure bill of last year, and one that has 
already proved to be successful in winning a lot

[[Page S4327]]

of support in this Chamber and in the other body. It has become the law 
of the land. We now have a few years of experience of that standard in 
place.
  Clear and convincing opens up a new door that we do not know, quite 
frankly, where it goes.
  I urge my colleagues to be supportive of this proposal on the 
punitive caps on the directors' and officers' liability, with the 
exceptions that I have mentioned, when and if I get a chance to offer 
it, and on the issue of state of mind.
  That may not be enough. I am sure there will be other amendments 
others may want to offer. But I think if you have a bill that roughly 
incorporates what I described to deal with the year 2000 problem, we 
can pass a bill with a substantial bipartisan vote; it can go to the 
House and go to the President's desk, which I am confident he will sign 
into law.
  I know the administration and I know the President and the Vice 
President care about this issue. They think it is important. We have a 
responsibility to act. This issue is not as galvanizing, obviously, as 
the issue surrounding the tragedy in Kosovo or the tragedy in Colorado. 
Clearly, those are two issues which this Senate must debate and 
discuss, in my view.


                     Tragedy in Littleton, COLORADO

  We ought to be talking about ways in which we can minimize the 
tragedy that occurred at Columbine High School in Littleton, CO.
  I want to hear my colleagues' ideas on what we can do as a country. I 
am suspicious of quick legislative solutions to what provoked and 
caused the loss of 13 lives in that tragedy in Colorado, but 
nonetheless, I want to hear a good discussion of what my colleagues are 
hearing from their constituents across this country as to how we, as a 
legislative body, can make a positive contribution to help this country 
not only come to terms with what happened a week ago, but how we can do 
everything in our power to minimize the recurrence of that tragedy.


                                 Kosovo

  Secondly, on Kosovo, clearly there the events, as they are unfolding, 
indicate that we are on the right track. It is not a perfect policy, 
but I am proud of the fact that my country is standing up for the 
rights of human beings who have been treated so poorly, to put it 
mildly, by the regime of Slobodan Milosevic.
  It was almost 60 years ago yesterday that a ship called the St. Louis 
left Europe with one-way tickets. Many who are part of the families of 
survivors or survivors of the Holocaust will know the name of the ship, 
St. Louis.
  That ship sailed from Europe with a boatload of passengers, all of 
whom were Jewish. They were bound for Cuba. When they arrived at Cuba, 
only 28 of them were allowed to come ashore.
  Unfortunately, our country denied that ship the right to enter U.S. 
waters. Rather than being a one-way ticket to freedom and avoiding the 
horrors of the Holocaust, the St. Louis was forced to return to Europe, 
and all those passengers on that boat faced the fate of the Holocaust.
  This Nation and the nation of Cuba at the time turned its back on a 
shipload of people seeking freedom. Sixty years later, Mr. President, 
we are confronted with a human tragedy that, I argue, is not on the 
magnitude of the Holocaust but of a significant magnitude where 1.5 
million people have been tortured, have been executed, have been 
displaced because of the appetites of one individual and those who 
support him in Serbia.
  It is not easy to stand up. It is not easy to build coalitions. It is 
costly to be involved in this. In my America, we stand up for people 
who face that kind of a problem, and when we can do so with 18 other 
nations standing with us, bearing the cost in proportional ways, to try 
to right this wrong, then I think it is something of which all 
Americans can be proud.

  It is legitimate to have a debate over the execution of this 
conflict, how it is being prosecuted, who is doing what and how fast it 
is occurring, whether or not we should have ground troops or whether or 
not the airstrikes are performing and achieving the desired results. I 
think we are on the right track. We ought to have a debate on that as 
well. It is healthy to have that kind of discussion.
  I do not mean to say Y2K is not important. Hardly so. I think it is 
very important. It is an issue we should resolve in this body, come to 
terms with, try to pass it here, and send the bill to the President for 
his signature. If we do not, we will regret deeply what may happen, and 
we will look back and wish that we had taken the short time we need to 
pass a bill that will allow for this problem to be avoided. I also hope 
we will get to the issue of Kosovo, get to the issue of Columbine High 
School and the tragedy in Colorado, and discuss and debate how we think 
we can respond to those issues as well.
  Mr. President, I see the arrival of my colleague from California. She 
may not be ready to say something at this moment. I thank the Chair and 
suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Gregg). The clerk will call the roll.
  The legislative assistant called the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Motion To Commit With Amendment No. 291

  Mr. KENNEDY. Mr. President, I send a motion to the desk and ask for 
its consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Massachusetts [Mr. Kennedy] moves to 
     commit the bill to the Committee on Health, Education, Labor, 
     and Pensions to report back forthwith, with the following 
     amendment No. 291 by Mr. Kennedy.
       At the appropriate place, insert the following:

     SEC. ____. FAIR MINIMUM WAGE.

       (a) Short Title.--This section may be cited as the ``Fair 
     Minimum Wage Act of 1999''.
       (b) Minimum Wage Increase.--
       (1) Wage.--Paragraph (1) of section 6(a) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 206(a)(1)) is amended to 
     read as follows:
       ``(1) except as otherwise provided in this section, not 
     less than--
       ``(A) $5.65 an hour during the year beginning on September 
     1, 1999; and
       ``(B) $6.15 an hour beginning on September 1, 2000;''.
       (2) Effective date.--The amendment made by paragraph (1) 
     takes effect on September 1, 1999.
       (c) Applicability of Minimum Wage to the Commonwealth of 
     the Northern Mariana Islands.--The provisions of section 6 of 
     the Fair Labor Standards Act of 1938 (29 U.S.C. 206) shall 
     apply to the Commonwealth of the Northern Mariana Islands.

  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.


                           Amendment No. 292

  Mr. McCAIN. Mr. President, I send an amendment to the desk to the 
motion to commit with instructions.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for Mr. Lott, 
     proposes an amendment numbered 292 to the instructions to the 
     motion to commit.

  Mr. McCAIN. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Unanimous-Consent Request

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

[[Page S4328]]

  The PRESIDING OFFICER. Objection is heard.
  Several Senators addressed the Chair.
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I ask unanimous consent the pending matter 
before the Senate be set aside so I can speak on the pending bill 
overall.
  The PRESIDING OFFICER. Is there objection?


                             Cloture Motion

  Mr. KENNEDY. Mr. President, reserving the right to object, and I will 
not object in just a moment, but I do send a cloture motion to the desk 
at this time.
  Mr. McCAIN. Mr. President, I believe I have the floor.
  Mr. KENNEDY. Mr. President, I think I am entitled to express my right 
to object.
  The PRESIDING OFFICER. I am advised that the cloture motion is in 
order, not withstanding the fact that the Senator from Arizona has the 
floor.
  The cloture motion having been presented under rule XXII, the Chair 
directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

  We, the undersigned Senators, in accordance with the provisions of 
rule XXII of the Standing Rules of the Senate, hereby move to bring to 
a close the debate on the Kennedy motion to commit S. 96:
         Paul Wellstone, Barbara Mikulski, Harry Reid, John F. 
           Kerry, Carl Levin, Charles E. Schumer, Frank R. 
           Lautenberg, Tom Harkin, Ted Kennedy, Russell D. 
           Feingold, Jack Reed, Patrick Leahy, Robert Torricelli, 
           Dick Durbin, Barbara Boxer, and Jeff Bingaman.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request of the Senator from Arizona?
  Without objection, it is so ordered.
  The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I would like to respond to some of the 
examples of how S. 96 would deny justice to businesses injured by a Y2K 
failure that have been offered by the ranking member. In particular, 
the example of a company called Produce Palace has been raised a number 
of times. In fact, the owner of that business testified before the 
Commerce Committee.
  Let me respond to the specific charges with the specific facts of 
that case and dispel the notion that S. 96 would make that business' 
situation even worse.
  The small businessman who owns Produce Palace has testified 
frequently regarding the problem he had with a computerized point of 
sale system, including a credit card scanner which would not accept 
credit cards with expiration dates of ``00.'' He asserted his situation 
would somehow be worsened by S. 96. The facts are to the contrary. The 
situation would be better with the passage of S. 96.
  Although he complains that S. 96 would require a 90-day waiting 
period, his lawsuit against the cash register system company was not 
commenced for over 2 years after the problem occurred. S. 96 would 
require that he provide 30 days notice to the company of the problem. 
This notice period does not foreclose emergency action for temporary 
restraining orders or similar extraordinary court involvement where 
warranted.
  Although he communicated back and forth with the company responsible 
for his problems over many months, under S. 96 the company would have 
had to respond by the end of the 30 days, and fix the problem within 
another 60 days. He could have begun suit at the end of the 60-day 
remediation period if the problem was not fixed, and not continued to 
be strung along for months and months.
  Additionally, most of the Produce Palace damages were suffered from 
lost profits and business. These losses may or may not be covered in 
his contract with the equipment provider. If those issues are included 
in a contract, then the contract terms prevail. If not, he would have 
every right to secure a new cash register or new credit card ``swipe'' 
machine so his business could proceed during the interim. This is 
something he apparently did not do under the current law.
  S. 96 would not affect his right to sue if the problems were not 
fixed in a timely manner. In fact, he would have been able to sue much 
more quickly than he actually did. More to the point, under S. 96 
defendants are encouraged to fix problems, and quickly, so that Mr. 
Yarsike's problems would have been alleviated more quickly and without 
the drain on his energy and financial resources that litigation 
entails.
  We are sending a letter to Yarsike explaining to him this aspect, and 
we certainly look forward to his response, if there is any 
disagreement.
  The second area that I will talk about is proportionate liability. 
Proportionate liability is one aspect of the bill that has caused some 
concern among my colleagues. I quoted this morning from a paper by the 
Progressive Policy Institute concerning the impact of Y2K litigation, 
and that same paper also discusses proportionate liability.
  The Progressive Policy Institute paper says:

       It is also extremely important that defendants be held 
     liable for only their portion of the fault by eliminating 
     joint and several liability. Given that computers and 
     electronic products pass through many hands before they are 
     finally sold, sourcing the liability like this will be that 
     businesses that had no role in causing the problem will not 
     be held accountable. To demand that a business with little 
     complicity in a dispute provide the lion's share of 
     reparations only because they have the deepest pockets or 
     because they are the last ones left standing, would simply be 
     unfair.

  The other issue I will discuss is the financial impact of litigation. 
It costs everybody money. It raises the cost, goods, and services. Here 
are a few examples. Twenty percent of the price of a ladder, 50 percent 
of the price of a football helmet is attributable to liability and 
litigation costs. The cost of defensive medicine used to help avoid 
malpractice liability has been estimated at $50 billion annually. These 
kinds of costs will result in higher costs of technology goods and 
services.
  These increased costs to consumers make technology a potentially more 
divisive element in our society, dividing the haves and have-nots, 
those who can afford technology, goods, and services versus those who 
cannot. Seminars on how to try Y2K cases are well underway. 
Approximately 500 law firms across the country have put together Y2K 
litigation teams to capitalize on this event.
  Let me just give you a sample of the Y2K litigation cost estimates:
  The year 2000 computer bug is expected to cause some disruptions, 
even if 95 percent of computer system problems are corrected. Problems 
will dramatically worsen if only 85 percent or 75 percent of the bugs 
are found. Ninety-five percent corrected/best-case estimate: U.S. total 
costs (to replace and repair software and systems and pay for 
litigation) $90 billion; 85 percent: U.S. total costs: $500 billion; 75 
percent, which is the worst-case: $1.4 trillion.
  The source of that information is Capers Jones of Artemis Management 
Systems.
  The amount of legal litigation associated with the year 2000 has been 
estimated by the Giga Information Group to be $2 to $3 for every dollar 
spent on fixing the problems. With the estimated size of the market for 
the year 2000 ranging from $200 billion to $600 billion, the associated 
legal costs could easily near or exceed $1 trillion.
  Mr. President, the effects of abusive litigation could further be 
curbed by restricting the award of punitive damages. Punitive damages, 
as we all know, are meant to punish poor behavior and discourage it in 
the future. However, this is a one-time event. The only thing deterred 
by excessive punitive damages in Y2K cases would be remediation efforts 
by businesses.
  I have managed a number of bills on the floor of the Senate, some of 
them more controversial than others. It is the rarest of occasions when 
we have seen a situation where amendments are not even allowed to be 
propounded and debated and voted on.
  It is not clear to me why we can't move forward with the legislative 
process. We have a bill that was reported

[[Page S4329]]

out of committee. We have made several changes to it, as is normal 
between the time a bill is reported out of committee and when it gets 
to the floor. I know there are significant objections by the 
distinguished Democrat leader, Senator Hollings, of the Commerce 
Committee. I do not quite understand why he wouldn't come forward, 
propose an amendment, et cetera.
  Now we are playing parliamentary games with motions to recommit and 
cloture motions. I say to the Senator from Massachusetts, who I have 
great respect for, why don't we just amend, vote, and move forward on 
an issue that all of us realize is very, very important to the future 
of this country? The year 2000 is not going to wait.
  I have never, in 13 years in the Senate--and many of those years, 
from 1987 to 1995, spent in the minority--come to this floor and tried 
some parliamentary maneuver such as I just saw. Never. I do not think 
it is the proper way we should conduct business here in the Senate.
  We are going to have a cloture vote tomorrow. I believe we will get 
60 votes. If we do not get 60 votes, then I believe we ought to have 
another cloture vote a day or two later and another cloture vote a day 
or two later and another cloture vote a day or two later. Because we 
ought to find out, Mr. President, who is really interested in curing 
this problem and who is interested in blocking legislation on behalf of 
the American Trial Lawyers Association.

  I hope the Senator from Massachusetts will withdraw this foolishness 
that he just went through. I hope the Senator from Massachusetts will 
propose an amendment on anything that has to do with this bill, and we 
would debate it and vote on it. That is the courtesy that I used to 
give my colleagues on the other side of the aisle when I was in the 
minority.
  I want to repeat, never once, never once did I propose a motion to 
recommit followed by a cloture motion, nor have I seen it here in this 
body that often, especially when we are dealing with an issue of this 
importance.
  Mr. President, I ask for the yeas and nays on the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The yeas and nays are ordered.


                 Amendment No. 293 To Amendment No. 292

   (Purpose: To regulate interstate commerce by making provision for 
 dealing with losses arising from year 2000 problems, related failures 
 that may disrupt communications, intermodal transportation, and other 
                 matters affecting interstate commerce)

  Mr. McCAIN. Mr. President, I send a second-degree amendment to the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for Mr. Lott, 
     proposes an amendment numbered 293 to Amendment No. 292.

  Mr. McCAIN. Mr. President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. McCAIN. Mr. President, I regret that we have to go through this. 
It was chosen to attempt to recommit this important bill back to the 
committee. As a result of that action, it is not only impeding but 
making very difficult our progress on the legislation.
  The Senator from Massachusetts and I have done battle on the floor of 
the Senate in an environment characterized with respect and 
appreciation. I do appreciate and respect the commitment that the 
Senate from Massachusetts makes to a variety of issues. I have not seen 
anyone on the floor who is committed as much as he is and willing to 
come to the floor day after day in advocacy of the issues that he 
believes in--health care, minimum wage, and many others. I hope the 
Senator from Massachusetts and others on the other side of the aisle 
will allow us to move forward with this legislation, whatever 
amendments they wish to propose, or amendments on this side, that we 
could have open debate and move forward.
  With that commitment, I will move that we remove the cloture motion, 
if we have that commitment from the other side.
  I hope we can move forward. Apparently, we will not. But it is not 
the way the American people expect us to do business.
  There is a little book we hand out to people when they come here to 
the Capitol and we give to our constituents. It is called, ``How Our 
Laws are Made.'' Our laws aren't made this way. This isn't the way we 
describe it to the American people. The way we describe it to the 
American people is a bill is reported out of committee, it comes to the 
floor, the amending process takes place, and we then continue to final 
passage of the legislation and to a conference and come back to the 
floor of the Senate.
  This is not that procedure. I do not think the schoolchildren will 
look very favorably on this kind of exercise that we are going through 
now. I appeal to the better angels of my colleague's nature that we 
move forward with this very important legislation as quickly as 
possible.
  I note the presence of the distinguished majority leader.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. LOTT. Mr. President, I associate myself with the comments of the 
Senator from Arizona.
  The bill before us is the Y2K liability legislation, which is time 
sensitive, which has bipartisan support, which would allow for a 
process for small business individuals and others who might be talked 
into Y2K computer problems, to deal with the problem without winding up 
with the typical lawsuits being filed.
  That is what this is really all about, trying to deal with the 
liabilities that could be facing a lot of people inadvertently, or 
because they don't have the ability to deal with this problem, to find 
a way to deal with the problem, and not just, as is the idea of a lot 
of people, just to provide an avenue for a lot of lawsuits.
  I had hoped we could have amendments on the subject and maybe 
substitute amendments by others. There are two or three different bills 
that are very close in this area. I thought we could deal with the 
subject matter and move forward. In a show of good faith, I wanted to 
leave those options open, and I didn't completely ``fill up the tree,'' 
as it is described around here, and offer a lot of amendments to block 
everybody, to see if we really had a good-faith intent of dealing with 
this important legislation. There are a lot of small business men and 
women, and businesses in general, who are very interested in this 
legislation and know it needs to be done, and they know it could be 
done in a bipartisan way.
  But my show of good faith has been rewarded with an amendment that is 
unrelated and is intended to change the subject to fulfill an agenda 
that has been developed on the other side. They had the opportunity and 
they took advantage of it. That, I think, is a tragedy, but that is the 
way it goes around here. I have learned a lesson. If we are going to 
pass legislation, whether it is on bankruptcy or financial 
modernization, FAA reauthorization, or this legislation, Y2K 
legislation, which is important, I am going to have to take actions to 
block irrelevant, nongermane amendments that are just part of a 
political agenda.
  Having said that, I move to table the motion to recommit the bill and 
ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LOTT. Mr. President, I advise Members that in about 10 minutes we 
intend to have a recorded vote. I give Members notice that a vote is 
impending.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Crapo). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  Mr. LOTT. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The clerk will continue with the call of the roll.
  The legislative clerk continued the call of the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page S4330]]

  Mr. LOTT. I object.
  The PRESIDING OFFICER. Objection is heard.
  The clerk will continue with the call of the roll.
  The legislative clerk continued the call of the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table. The clerk will call the roll.
  Mr. KENNEDY. Mr. President, I suggest the absence of a quorum. No one 
is present, Mr. President.
  The PRESIDING OFFICER. The clerk will call the roll to ascertain the 
presence of a quorum.
  The legislative clerk proceeded to call the roll and the following 
Senators entered the Chamber and answered to their names.

                             [Quorum No. 6]

     Boxer
     Crapo
     Durbin
     Gregg
     Kennedy
     Lott
     McCain
  The PRESIDING OFFICER. A quorum is not present.
  Mr. LOTT. Mr. President, I move to instruct the Sergeant at Arms to 
request the presence of the absent Members, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the Senator from Mississippi. On this question, the yeas and nays have 
been ordered, and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New York (Mr. Moynihan), 
is absent due to surgery.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 98, nays 1, as follows:

                      [Rollcall Vote No. 93 Leg.]

                                YEAS--98

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bryan
     Bunning
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     Crapo
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Edwards
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone
     Wyden

                                NAYS--1

       
     Breaux
       

                             NOT VOTING--1

       
     Moynihan
       
  The motion was agreed to.
  The PRESIDING OFFICER. A quorum is present.


     Vote on Motion to Table the Motion to Commit with Instructions

  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table the motion to commit the bill with amendment No. 291 to the 
Committee on Health, Education, Labor, and Pensions. The yeas and nays 
have been ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from New York (Mr. Moynihan) is 
absent due to surgery.
  I further announce that, if present and voting, the Senator from New 
York (Mr. Moynihan) would vote ``no.''
  The result was announced--yeas 55, nays 44, as follows:

                      [Rollcall Vote No. 94 Leg.]

                                YEAS--55

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Sarbanes
     Schumer
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Moynihan
       
  The motion was agreed to.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER (Mr. Ashcroft). The majority leader.


                           Motion to Recommit

  Mr. LOTT. Mr. President, I move to recommit the bill with 
instructions to report back forthwith, and I ask for the yeas and nays 
on the motion.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                           Amendment No. 294

   (Purpose: To regulate interstate commerce by making provision for 
    dealing with losses arising from the year 2000 problem, related 
 failures that may disrupt communications, intermodal transportation, 
            and other matters affecting interstate commerce)

  Mr. LOTT. Mr. President, I send an amendment to the desk to the 
motion to recommit with instructions.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Mississippi (Mr. Lott) proposes an 
     amendment numbered 294 to the instructions of the Lott motion 
     to recommit.

  Mr. LOTT. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. LOTT. Mr. President, I ask for the yeas and nays on the 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                 Amendment No. 295 to Amendment No. 294

  Mr. LOTT. I send a second-degree amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Mississippi (Mr. Lott) proposes an 
     amendment numbered 295 to amendment No. 294.

  Mr. LOTT. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. LOTT. Mr. President, in view of the latest action in trying to 
change the subject on this important Y2K bill, I had no alternative but 
to fill up the tree. I know there will be comments by Senator Daschle 
and Senator McCain and Senator Kennedy with the idea that we still hope 
to be able to bring these issues to a conclusion and get an agreement 
on Y2K, and, if that can be worked out in terms of available 
amendments, or final vote, we will work through that, hopefully, by 
tomorrow.

                          ____________________