Congressional Record, Volume 145 Issue 59 (Wednesday, April 28, 1999)

[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the quorum call be rescinded.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.

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.

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