[Congressional Record Volume 145, Number 59 (Wednesday, April 28, 1999)]
[Senate]
[Pages S4331-S4341]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   ORDER OF BUSINESS AND THE Y2K ACT

  Mr. LOTT. Mr. President, I regret that we have to use this procedure. 
But we are hoping that we can see an agreement reached with regard to 
Y2K. I know there is a bipartisan effort underway on this important 
issue. It is timely. I hope that Members will work together this 
afternoon and tonight, and that we can find a way to come to a 
conclusion on it.
  The Social Security lockbox also is an issue that we think is very 
important which we need to be talking about and find a way to actually 
achieve that goal. This will give us an opportunity to discuss that 
some more.
  I want to say to Senator Daschle publicly what I have been saying to 
him privately. It is not my intent, and I will not be used to prevent a 
discussion in a reasonable period of time--we talked about week after 
next--with regard to school violence, how you deal with that. I think 
it is appropriate after a reasonable period of time to have a debate 
and have votes on amendments. I suggest that we would do it on the 
Justice bill. If for some reason that bill is a problem, we will find 
some other vehicle, and I am sure there will be amendments with a lot 
of different ideas of how we try to deal with this problem.
  I am not sure we can solve what has happened in Colorado here. But we 
will have a chance to have a discussion and have a debate and have 
amendments.
  I said to Senator Daschle that we are going to do that, and he and I 
will work together to find a way to do it and to have amendments 
dealing with school violence.
  I don't want this to become a laundry list of all kinds of other 
issues. But the Senate needs to be heard, and needs to have an 
opportunity to debate and vote on those issues dealing with school 
violence. How we try to address that--we will find a way to get that 
done.

  I yield the floor.
  Mr. DASCHLE. Mr. President, just for a question for the leader to 
clarify, yesterday I think the understanding was that it would be his 
intent to bring this bill to the Senate floor 2 weeks from yesterday.
  Is that the current intention?
  Mr. LOTT. That is my intention. To give you an example of what might 
happen, though, it is possible that the supplemental appropriations 
bill would be ready that day. It depends on when the House acts and 
when the Senate is able to get to it. If we have to do it a day 
earlier, or a day later, I don't want the Democratic leader to think it 
would have to be something he and I agree on. Barring something that 
might happen, we will do it on that Tuesday.
  Mr. DASCHLE. I thank the majority leader.
  Mr. LOTT. I yield the floor.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER (Mr. Santorum). The minority leader is 
recognized.
  Mr. DASCHLE. Mr. President, I want to comment on developments over 
the last couple of days in particular, and the vote that we just had 
specifically. There are two issues here. I want to touch on both of 
them.
  The first issue has to do with our desire to reach some 
accommodation, some agreement on Y2K. I have said it publicly and 
privately, I think this is a serious issue. I believe there is a way 
with which to resolve this matter. But I don't think it does any of us 
any good, or the industry any good, or our country any good to pass a 
bill out of the Senate knowing it will be vetoed. I don't know why we 
would do that.
  I have heard the argument, ``Well, we can clean it up in 
conference.'' Mr. President, I don't know why we don't clean it up 
here. We have as clear a letter as any I have ever seen from this 
administration which says the current draft will be vetoed. I don't 
know how you get any more definitive than this.
  If we were serious--and I really believe that there are a number of 
serious and well-intentioned Senators who want to see this resolved--I 
think this is the test of seriousness, because I believe that the 
Senators who truly want to see an accomplishment rather than an issue 
will take this letter seriously.
  I am very hopeful that in the not too distant future we will see some 
final agreement that will allow us to vote on an overwhelming basis on 
this issue. I want to support it. Most of us will support it.
  Mr. WYDEN. Mr. President, will the minority leader yield for a quick 
moment?
  Mr. DASCHLE. I am happy to yield to the Senator from Oregon.
  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

[[Page S4332]]

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. DASCHLE. I thank the Senator from Oregon.
  Mr. President, there are a number of people--Senator Wyden, Senator 
McCain, Senator Hollings, Senator Edwards, Senator Dodd, Senator Kerry, 
Senator Robb--as the Senator has noted, who deserve great credit for 
moving this process along. There are a number of Senators who are 
actively engaged in an effort to bring this matter to closure. I am 
very hopeful we can do that.
  Let me talk about the second matter, the procedural question. Senator 
Kennedy offered an amendment, as is his right, through the recommittal 
motion simply because he has no other recourse. This is illustrative of 
an array of frustrations the Democratic Caucus has about the procedure 
used in each and every instance in which a bill has come to the floor 
this session of Congress. This is the 28th of April and we have yet to 
have one amendable vehicle on the Senate floor.
  I have a great deal of affection for the majority leader, but I must 
say, I think he should have run for Speaker because I really believe he 
would be more comfortable as Speaker. I have said that to him, and I 
think he would acknowledge he would much rather have a Rules Committee 
in the Senate than the current rules. When I become majority leader, 
maybe I will have that same feeling.
  However, in the Senate, we have always prided ourselves on open, free 
debate. We lay a bill down, offer amendments, have tabling motions, 
have second-degree amendments, and we have a debate. We call ourselves 
the most deliberative body in the United States, if not in the world, 
and I believe we have a right to that distinction. How can we be 
deliberative when every time we bring a bill to the floor, we fill the 
parliamentary tree, denying anybody a right to offer an amendment?
  There is a pent-up frustration and a pent-up pressure to have the 
opportunity to vote, to have the opportunity to offer amendments on key 
questions. This happened to be the minimum wage. The distinguished 
senior Senator from Massachusetts said he will pull the amendment if we 
can reach some agreement, if we can get some final solution here in 
solving the problem of Y2K. If we can solve it and if we can reach 
agreement, he will pull this amendment. He made that request and that 
offer. That is more than I get on many occasions. I have to thank the 
Senator for that.
  However, we will continue to see as many challenges and as many 
significant breakdowns in the effort to reach, with some comity, a 
solution procedurally and a solution substantively of the issues we 
want to address in the Senate as long as we fill the tree on each and 
every occasion.
  We just did the Social Security lockbox. What happened? The majority 
leader filled the tree and, in filling the tree, once again denied the 
minority the right to offer even a single amendment.
  I am very hopeful we can resolve this matter, but the way to resolve 
it is to do what we are supposed to do, to do what we are paid to do 
around here. We come to the Senate with ideas. We come to the Senate 
with a bona fide appreciation of the differences of opinion that exist 
in the Chamber, even within our own caucuses. I am exasperated, 
frustrated, mystified that here in the Senate we are not allowed an 
opportunity to have a free and open debate. If amendments are 
undesirable, table the amendments; if the amendments can be improved, 
improve them with a second-degree. But to deny Democratic Senators--and 
even Republican Senators, for that matter--the chance to amend a bill 
is not acceptable.

  I am hopeful we can find a way to resolve this. If we can't, I will 
put the Senate on notice that we will use other recourses if we have 
to. I don't want to have to do that. However, there are ways to 
respond, to reciprocate, if we are going to be gagged. Committees are 
meeting with our approval; we don't have to do that. There is an array 
of other tools we can use to demonstrate our frustration, and we will 
resort to those if we have to.
  I hope we can come to a point where we don't have to do this. We can 
take up issues that are offered in good faith, debate them, amend them, 
dispose of them. We can do that on Y2K as we are doing today. We can do 
that on a lot of other issues, and we must.
  Mr. REID. Mr. President, will the Senator yield?
  Mr. DASCHLE. I am happy to yield to the Senator.
  Mr. REID. I can speak only of your predecessor, the Democratic 
leader, Senator Mitchell. I know during one Congress he used this 
procedure one time during a 2-year period. This has been used, to my 
knowledge, on every bill that has been brought up this session; is that 
true?
  Mr. DASCHLE. Unless there is a unanimous consent agreement, it has 
been used on virtually every occasion.
  Mr. REID. My understanding is this procedure, when the Democrats were 
in the majority, was used rarely; is that true?
  Mr. DASCHLE. I do not have the statistics the majority leader 
referred to. The majority leader showed me the list of occasions when 
filling the tree was something that Democrats resorted to when we were 
in the majority. We go back to 1977 to find the first time, and we have 
only used it, according to his own list, on a handful of occasions 
since 1977. Over the last 20 years, Democrats may have used this 
procedure 5 times--5 times in 20 years.
  This procedure has been used five times in 1999. We will have a lot 
more to say about the extraordinary utilization of this concept of 
filling the tree and how undemocratic and unfair it is to the process 
and to the institution itself. We have to find a way to fix it.
  Mr. SCHUMER. Will the majority leader yield? Pardon me; wishful 
thinking on my part. Will the minority leader yield?
  Mr. DASCHLE. I am happy to yield to the Senator.
  Mr. SCHUMER. I recently ran for the Senate. One of the main reasons I 
ran was the ability of Members to amend bills. I have always admired 
the Senate for this. The House has become nasty and partisan. It has 
basically shut down.
  I want to thank the minority leader for voicing the frustration that 
so many Members have. During the impeachment proceeding, we worked 
together. Since then, it seems to me that comity is gone. There is no 
ability for Members on either side of the aisle who have ideas to offer 
them. We may lose them.
  The frustration that so many felt in the wake of Littleton--we had 
ideas which we thought wouldn't solve the problem but might ameliorate 
or reduce the chances of future Littletons--of not being able to offer 
those amendments was enormous.
  Has the process thus far this year evolved so we are virtually no 
different from the House?
  Mr. DASCHLE. We have created a Rules Committee of one. I think it is 
unfortunate. They have a Rules Committee in the House. 
Constitutionally, the House was designed differently than we are. We 
don't need a Rules Committee in the Senate. Somebody made the comment, 
I think it was the distinguished assistant Democratic leader, the 
reason our Senate is so family friendly is that we are not doing 
anything. If we did something, maybe we would not be so family 
friendly.

  I think it is time we do something, we try to resolve these matters. 
Let's move on and allow Senators the opportunity to express themselves 
in amendments.
  Mrs. BOXER. Will the Senator yield?
  Mr. DASCHLE. I will be happy to yield to the Senator from California.

[[Page S4333]]

  Mrs. BOXER. This is for a question. I appreciate the Democratic 
leader taking to the floor. I want to use this opportunity to ask him a 
particular question.
  The Democratic leader and the Democratic caucus have an agenda of 
issues. The Republican leader and the Republican caucus, they have 
their agenda of issues. This is good. This shows the people our vision 
for this country. One of the things that occurred when the Senator from 
Massachusetts offered the minimum wage increase as an amendment here, 
or asked the bill be recommitted so we could vote for it, was that the 
majority leader was very unhappy with this and said something to the 
effect--I am not quoting verbatim, but something to the effect--he even 
used the word ``tragedy''--it was a tragedy this was occurring on this 
bill and that this is not a time for one party to put forward its 
political agenda.
  I ask my leader this question: Isn't it totally appropriate that each 
side here, Republicans and Democrats, has a chance to put forward their 
political agenda? The Senator from New York talked about his race. I 
had a race that was very difficult. I can assure my friends on both 
sides of the aisle, it was based on real issues. It was not some 
theoretical race. It was about the minimum wage, it was about the 
Patients' Bill of Rights, it was about equal pay for equal work, it was 
about the environment, yes, and schools and education.
  So the question is, I would love to ask my leader what he thinks 
about our agenda, whether it is pressing? I think the majority leader 
said this bill is timely. It is; that is true. But is our agenda not 
timely as well?
  Mr. DASCHLE. The Senator from California raises a very good question. 
Absolutely, our purpose is to present our agenda. That is why we are 
here.
  That does not mean to the exclusion of the Republican agenda. 
Obviously, we ought to have a good debate about both agendas. But you 
need that debate. You need that opportunity. How do you have that 
debate? Not just by talking but by offering legislative proposals: the 
minimum wages, Patients' Bill of Rights, school construction, Social 
Security, Medicare reform. Those are the things we are here to vote on 
and work on, and we need the opportunity to do that.
  We can do it the easy way or the hard way. We can do it by allowing 
amendments and having a good debate, by having some agreement about 
what the schedule will be, or we can force these issues by offering 
amendments and by having to defeat cloture and by doing all the 
procedural things we have had to do now for so long. By the time we set 
aside all the procedural time we have spent, we could have had a good 
debate on the minimum wage or the Patients' Bill of Rights.
  The majority leader has said we will bring up the Patients' Bill of 
Rights. He just said we will bring up minimum wage. He has now said we 
will bring up juvenile justice. So we are making progress. But I think 
the time has come to drop this procedural stampede that we find every 
time on the part of the majority when we want to offer amendments. We 
have to quit trying to steamroll these bills without offering due 
opportunity to all Members to offer amendments.
  I know the Senators from Massachusetts and Arizona are waiting to 
speak, and I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I would like to first comment on the 
remarks by the Democratic leader, who is a very old and dear friend of 
mine going back many years. I appreciate his frustration and concern. I 
think he made a very eloquent point here.
  I point out to my good friend, there is a bit of frustration on this 
side, too. There is no better example than what is happening right now. 
We have this bill on Y2K, which is time sensitive if there ever was 
one, if there was ever a definition of a time-sensitive piece of 
legislation. We have had it on the floor for 4 days and we cannot get a 
single amendment, not one single amendment up on your side of the aisle 
for debate and voting. I say to the Senator, the distinguished Democrat 
leader, that is what also breeds frustration on this side. Then the 
majority leader has to file a cloture motion.
  The Senator hearkened back to previous years when his party was in 
the majority. I have to tell you, most of the bills we took up, we put 
up amendments. Those amendments were either tabled or agreed to or 
modified, and we went forward. On this bill right here, we have not had 
a single amendment. I begged for the last 4 days: Please come forward 
with an amendment. In all candor, on that side of the aisle the leader 
has said: On this bill, all I want to do is kill the bill. All I want 
to do is kill the bill. Then we are forced to go ahead with a cloture 
motion and a cloture vote.
  My point to the distinguished Democratic leader is, maybe we ought to 
all draw back a little bit, go back to a period of time where perhaps 
we were proposing amendments on both sides and they were allowed. I 
agree with the distinguished Democratic leader that we should have 
these issues raised, I hope in a timely fashion, such as the 
distinguished Democratic leader has sought to do.
  I know what the staff is now whispering in the Senator's ear: ``We 
filled up the tree.'' We filled up the tree because we did not want to 
take up minimum wage. We wanted to move forward with this bill.
  I understand and appreciate the passion the Senator from 
Massachusetts has about minimum wage. I do not mind debating the bill. 
But I would also like to get this bill done, which is time sensitive on 
January 1 of the year 2000. Why there would not be a single amendment--
as soon as we filled up the tree I said I would be glad to agree by 
unanimous consent we take up any amendment that is germane to this 
bill. I think that would be appropriate.
  In 4 days, there has not been a single amendment. I am not saying the 
responsibility is all on that side of the aisle or on this side of the 
aisle. I hope we can work out an orderly process. But it frustrates me 
and the people, the small-, medium- and large-size business people all 
over America who are facing this crisis, when we seem to be stuck 
without even considering a single amendment on the bill.
  So I hope the Democratic leader in his frustration, which is 
understandable, would also understand that occasionally there is 
frustration on this side of the aisle as well. Having been in both the 
minority and the majority, I understand, I think, the frustrations that 
are felt there on that side of the aisle.
  I would like to make one additional comment. I want to express my 
appreciation to Senator Dodd for his efforts on this bill; Senator 
Hatch, Senator Feinstein, Senator Wyden, and Senator Bennett. As we 
know, Senator Dodd and Senator Bennett chaired a very important special 
committee on the Y2K issue. They have done a tremendous job. So they 
have been heavily involved in this legislation.

  Senator Feinstein and Senator Hatch have had a longstanding 
involvement, and I am very grateful to them for their constructive 
contributions to this bill. We have had many hours of meetings trying 
to work out very difficult aspects of this issue. Thanks to Senator 
Dodd's leadership, along with that of Senators Hatch and Feinstein, 
Wyden and Bennett, I think we have an agreement that we will be able to 
move this issue forward.
  So I ask again if we could agree on amendments. I understand there 
are about 20 pending, about 10 of them by the distinguished ranking 
member of the Commerce Committee. If we could narrow down those 
amendments, agree to them and agree to have votes, then we could 
vitiate the cloture vote tomorrow and get this thing done.
  Unfortunately, so far there has been no agreement, there has been no 
amendment brought up, and there has been no time agreement. I again 
plead with the other side, if we are really interested in passing this 
legislation, let's go ahead, agree we stand ready to agree to the 
amendments and the time agreements on all of those amendments.
  Mr. President, again I want to make clearly understood the great 
respect and affection I have especially for the distinguished 
Democratic leader. I understand his frustrations. We felt them when we 
were in the minority, and I hope all of us together can have more 
comity in this entire process so we can do the people's business.

[[Page S4334]]

  Mr. WYDEN. Will the Senator yield?
  Mr. McCAIN. Mr. President, I yield the floor.
  Mr. KENNEDY addressed the Chair.
  Mr. WYDEN. Mr. President, does the Senator from Arizona still have 
the floor?
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I know others have been here, but I have 
been here for 2\1/2\ hours waiting to speak on the amendment which I 
offered. While I see my friend from Oregon, I do not intend to take a 
very long time, but I would like to be able to speak about that issue.
  First of all, just to review where we are, I want to identify myself 
with the good remarks of my friend from South Dakota, Senator Daschle.
  Mr. President, I ask unanimous consent that we have printed in the 
Record the majority leader's schedule for April and for May.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The following is a list of legislative items the Senate may 
     consider between now and the Memorial Day recess. As always, 
     this is not an exclusive list and is in no particular order.

     Supplemental Conference Report
     Kosovo Funding
     Y2K
     Ed-Flex Conference Report
     Safe Deposit Lockbox
     Budget Reform
     FAA
     Commerce/Justice/State Appropriations
     Financial Modernization
     Flag Burning
     Bankruptcy
     Satellite Users
     Water Resources
     State Dept. Authorization
     Dod Authorization

  Mr. KENNEDY. In April and May, we have the supplemental conference 
report, Kosovo funding, Y2K, Ed-Flex, safe-deposit lockbox, budget 
reform, FAA, Commerce-Justice-State appropriations; financial 
modernization, flag burning, bankruptcy, satellite users, water 
resources, State Department authorization, DOD authorization.
  Mr. President, do you know what is not on that? Any possible 
opportunity to debate an increase in the minimum wage.
  We were effectively shut out from any opportunity last year.
  We raised the issue, and we had to follow a similar process to bring 
that issue before the Senate. We were denied that opportunity. It is a 
very simple and fundamental issue of fairness and equity to those who 
are some of the hardest workers in America--11 million hard-working 
Americans, who go to work every single day, who work 40 hours a week, 
52 weeks a year, and at the end of the year bring home what is less 
than a poverty wage in the United States of America.
  Forty-five Members of the Senate have asked this body for an 
opportunity to address this issue so that we can have economic justice 
for the workers of this country, and what has been the response? Is 
there any opportunity to look down the road and say, ``In another week, 
or 2 weeks, or 3 weeks, you will have that opportunity''? No. The 
answer is no, you cannot have an opportunity to raise the minimum wage. 
You cannot even bring that to floor of the Senate.
  I have heard a lot of talk about courtesy and about how bills are 
made here. What about courtesy toward the hard-working men and women 
who are making a minimum wage, who cannot put bread on the table or pay 
their rent? Or, courtesy toward the proud working woman we heard from 
just yesterday who said that she has been unable to go to see her two 
daughters in the last 3 years because when you make the minimum wage, 
you cannot afford to take a bus across the country to see them. How 
about courtesy to them, Mr. Leader, how about courtesy to them? Don't 
they count? Shouldn't they be on the agenda?
  Mr. President, I find these arguments rather empty in trying to 
establish priorities here. I am sympathetic to trying to reach out with 
legislative solutions to the problems we have before us, but we have 
been denied any opportunity to do anything about these 11 million 
Americans earning the minimum wage.
  And it is not only on the issue of the minimum wage. Last year we 
brought up an issue that is on the minds of every working family in 
this country, and that is the Patients' Bill of Rights--a very 
fundamental idea--that the medical profession, and not an accountant in 
the insurance companies, ought to be making the decision affecting 
families. That is the heart of the Patients' Bill of Rights. And we 
were denied the opportunity to consider it on the basis of the merits. 
We were denied the opportunity to even have a hearing.
  I hope all of those voices that were out here talking about 
``undermining the spirit of the Senate'' will go back and talk to the 
chairmen of those various committees and say: Give them a hearing, 
report a bill out, get it to the floor of the Senate, so we can make 
sure that we are going to have clinical trials available to women who 
have breast cancer or to children who have other dreaded diseases; to 
make sure people are going to have a specialist when they need it; to 
make sure people are going to be able to get treated at the nearest 
emergency room; to make sure, if someone has some particular illness or 
sickness, they are going to get the right prescription drugs, not just 
what is on an ordinary formulary.
  It is not very complicated, not very revolutionary, not very 
dramatic. It is not our agenda, not the Democratic agenda. It is the 
agenda of 100 agencies of doctors, nurses, and consumers of this 
country who say this is what we need to protect your children, to 
protect your wives, and to protect your loved ones.
  But where is it on this agenda? Where do we have the opportunity to 
debate these issues? Where do we even have the opportunity to say that 
we will be willing to enter into a time agreement, say, 3 days? We take 
days and weeks on some issues around here, but are not even given the 
opportunity to have time-limited debate on these issues, which are of 
such vital importance to the men, women, and children of this country.
  Just tell us, majority leader, when we can debate these issues. Give 
us Mondays and Fridays when we are not voting. Give us those days when 
the Senate has not been working. We will take any time. We will take 
Mondays and Fridays. We will take nighttimes. We will take any time. 
But give us the time, and put these issues on the agenda, because they 
are on the agenda of every family.

  But no. We are denied the opportunity to debate these issues: ``It is 
not on our agenda, Senator. Don't insult us on our side by trying to 
bring this measure up on the floor of the Senate this afternoon. Don't 
inconvenience the majority that have an agenda here this afternoon. No, 
you cannot speak, Senator; you cannot speak here this afternoon on your 
particular amendment. No, no, we are not going to let you do that.''
  Mr. President, it is the best reason I know why we ought to change 
this body, why we need men and women in this body who are going to say 
that an increase in the minimum wage is deserved. An increase in the 
minimum wage is a women's issue--Sixty percent of those recipients of 
the minimum wage are women. It is a minority issue--nearly 4 million 
African-American and Hispanic workers would benefit from an increase in 
the minimum wage.
  Mr. President, this is something that cries out for fairness. The 
American people support it. But, no, we cannot even debate the issue.
  I am beginning to believe that the majority refuses to bring it up 
because they do not want to vote. We know what is going on, all the 
whispers: ``Don't let them bring up the minimum wage on the basis of 
the merits because it's going to be painful for us.''
  But how much pain does it cause those individuals who are trying to 
provide for their families tonight? How much pain are they going 
through?
  Still, we heard words on the floor this afternoon about courtesy to 
the body. We were told about this is not the way of doing business, 
this is not how laws are made. I was reminded by another Republican 
leader, we ought to be showing good faith, that this is a tragedy but 
that it is irrelevant material.
  You tell the 11 million people who are trying to survive on the 
minimum wage that this is what has happened to their purchasing power.
  We have heard in the wake of the Littleton tragedy about the 
importance of parents spending time with

[[Page S4335]]

families. When you are working two or three jobs at the minimum wage, 
how much time do you have to spend with your children? That is the 
testimony these people are giving. They do not have the time to spend 
with their children.
  Do you know what the payroll for the United States of America is a 
year? It is $4.3 trillion. Do you know what the impact of this increase 
in the minimum wage would be? It would be three-tenths of 1 percent of 
that, and we hear that it is going to add to the problems of inflation, 
that we are going to throw a lot of people out of work. Mr. President, 
$4.3 trillion, and we are talking about 50 cents a year for more than 
11 million people. Come on.
  If you do not want to vote for it, do not vote for it. Let's take it 
to the American people and see who they want to represent them. But no. 
Just read the schedule. No matter how much we try, Senator Daschle has 
not been able to bring those measures before the Senate.
  Mr. REID. Will the Senator yield for a question?
  Mr. KENNEDY. Let me make a final comment, and then I will be glad to 
yield.
  Mr. President, I underscore my support for Senator Daschle. I 
mentioned very briefly yesterday in our Democratic caucus that just 
before I came to the Senate, you did not get a vote in the Senate 
unless you got the nod from the majority leader.
  But something took place in the 1960s. We had a movement within this 
Nation to strike down the walls of discrimination. People said, ``This 
is an important issue.'' The two places these issues were debated and 
considered were the federal court--the 5th Circuit--and the Senate. The 
debate on the war also took place in the Senate--and later, on the 
environment, disability rights, and other issues of crucial importance 
to our country. The Senate has been the repository for debate about the 
Nation's concerns.
  One thing that every Senator understands is that everyone is equal in 
this body. So I cannot accept what the majority leader is saying: ``I 
make the decisions on this agenda. And no one else.'' That isn't what 
this body is about.
  The Senate Democratic leader, Senator Daschle, indicated in a very 
positive and constructive way his willingness to try to work with the 
majority. This is the way it has been for 36 of the 37 and a half years 
I have been here--when Democrats have been in the majority and when 
Republicans have been in the majority. But never in that time have we 
had the leadership saying that one Senator is a lesser Member of this 
body than another. And that is what is being said, when a Member is 
denied the opportunity to raise important issues of conscience or of 
concern to their constituency.
  They may be able to deny that opportunity on a particular measure. 
They may be able to prevent someone from speaking for 2\1/2\ hours, as 
they did today. They may eat up another hour of time, as they did this 
afternoon by having a live quorum. That is all part of this process. 
You can play this nice or you can play it rough.
  I like to believe, as someone who takes a sense of pride in being 
able to work together with Members on both sides of the aisle, that we 
have been able to make a difference. That is what the Senate should be 
about. But if they are going to play it the other way, let them just 
understand that we can play it that way too.
  I suggest my colleagues go back and read the little book by Jim 
Allen. Senator Allen had this place tied up for 7 months--an individual 
Member of the Senate. If they are not going to work this out in a way 
that respects individual Members, they cannot expect Members to respond 
in the positive tradition of this great institution.
  Every Member on both sides of the aisle wants to honor that 
tradition. That is what I want to see. Hopefully we can, through the 
leadership of Senator Daschle and Senator Lott, proceed in that way for 
the remainder of this session.
  I am glad to yield.
  Mr. REID. I ask the Senator: You have talked about minimum wage. It 
is true, is it not, as you have said, that 60 percent of the people who 
draw minimum wage are women? Is that true?
  Mr. KENNEDY. The Senator is correct. Sixty percent.
  Mr. REID. For 40 percent of all of these women who draw minimum wage, 
that is the only money they get for themselves and their families; is 
that true?
  Mr. KENNEDY. That is correct.
  Mr. REID. The Y2K problem is something you and I acknowledge we 
should resolve; is that true?
  Mr. KENNEDY. Absolutely.
  Mr. REID. But tell me, isn't it true--you have been the lead Democrat 
on the Judiciary Committee; you have been on that committee for many 
years that is looking to litigation which will transpire as a result of 
computers not working properly after the year 2000 hits? Is that true?
  Mr. KENNEDY. The Senator is correct again.
  Mr. REID. Even though we both acknowledge it is more important 
legislation, would the Senator tell me why it is important in April of 
1999 that that legislation be completed prior to a bill that would give 
the 12 million people who are desperately in need of a minimum wage 
increase?

  Mr. KENNEDY. I know there may be some who differ, but I think we 
could pass the minimum wage and the Patients' Bill of Rights and the 
Y2K in a relatively short period of time and do the country's business. 
As it is we cannot do the country's business, as the Senator has 
pointed out, if we can never even reach the minimum wage or the 
Patients' Bill of Rights.
  In the meantime, we are told by my good friend from Arizona--I wish 
he were here--that he is frustrated because we have not had an 
amendment all week. Well, you know what he is saying? ``We haven't had 
an amendment that the majority can agree to all week.'' He said right 
here on the floor, ``We haven't had an amendment all week.'' Well, the 
rest of that sentence is: ``that he will permit, to be offered.''
  That is not what this place is about. I really am quite surprised 
that a Member of the Senate would interpret the rules that way.
  Mr. REID. Will the Senator yield for another question?
  Mr. KENNEDY. Yes.
  Mr. REID. The Senator outlined graphically the Patients' Bill of 
Rights. And it is important that we do something about that. But is it 
not also true, in relation to the Patients' Bill of Rights, that all 
over this country managed care entities are dropping senior citizens?
  Mr. KENNEDY. The Senator is absolutely correct.
  Mr. REID. There are senior citizens now who have chosen to go off 
Medicare, who are now without any managed care, without any ability to 
get health care; is that right?
  Mr. KENNEDY. That is right.
  Mr. REID. There are some who say, once you go off Medicare, then you 
can't go back on for a certain period of time.
  And now there are hundreds of thousands of them in the country who 
have been dropped from the managed care entities. Don't you think our 
doing the Patients' Bill of Rights is important to the senior citizens 
of this country?
  Mr. KENNEDY. The Senator is correct. An opportunity to debate the 
prescription drug issue is also important to our senior citizens. I 
know the Senator is home just about every weekend, and I am sure that 
when he meets with senior citizens they raise, in an almost unanimous 
chorus, their concerns about prescription drugs. I daresay they think 
we ought to be addressing that issue in the Senate.
  When I go home and meet with workers, they are concerned about the 
minimum wage, they are concerned about the Patients' Bill of Rights, 
they are concerned about prescription drugs. Sure, the legislation 
before us is important, but then I look at this agenda and wonder, 
where are the issues the people at home care about?
  It is important that we have the opportunity to debate and discuss 
these issues. We are denied that opportunity now.
  Mr. REID. One last question I will ask the Senator.
  Based on your experience and my experience, is it a fair statement to 
say that on our agenda items we may not win every one of them, we may 
not prevail on every one of them, but wouldn't it be nice, I ask the 
Senator, to be able to debate the issue of the minimum wage, the 
Patients' Bill of Rights, the

[[Page S4336]]

other things we believe are important? Win or lose, wouldn't it be 
great if we could have the opportunity to explain to the American 
people and the Members of this Senate why we feel strongly about an 
issue?
  Mr. KENNEDY. I could not agree with you more, Senator. And, 
tragically--tragically--the Republican leaders were able to kill the 
effort to consider the minimum wage here today. I do not know why they 
will not even give us an opportunity to debate and vote on the merits 
of the issue.
  I hope that we are able, through the efforts of our leader working 
with the majority leader, to agree on a process that gives these 
issues, and others that are important to our colleagues, their day on 
the floor of the Senate.

  Mrs. BOXER. Would the Senator yield for a brief moment?
  Mr. KENNEDY. I will be glad to yield.
  Mrs. BOXER. I will be very brief.
  I have been on the floor with the Senator for 2 and a half hours.
  Mr. KENNEDY. I know the Senator has.
  Mrs. BOXER. And I am proud that I was able to take that time to do 
it, because by my presence I wanted to show the support I feel for what 
he is trying to do. I am a person who represents the Silicon Valley, 
the high-tech people. I want to solve the Y2K problem. I know my friend 
is a leader on technology in his State.
  We want to do the right thing. I have praise for his colleague, 
Senator Kerry, who I think is doing a terrific job, working to come up 
with a solution some of us would prefer and, by the way, the 
administration prefers.
  I want to pick up on this notion of time sensitive, because it is 
time sensitive that we do this. It doesn't have to be done today or 
next week, but it is time sensitive. Certainly, we have to do it in 
time to resolve the problem.
  But there are a lot of things that are time sensitive. Isn't it time 
sensitive when a family can't pay the bill? Isn't it time sensitive 
when, as the Senator says, a woman can't afford to take a Greyhound bus 
to see her children? Isn't it time sensitive that under current law a 
12-year-old can walk into a gun show and buy, essentially, a 
semiautomatic assault weapon? There are a lot of things that are time 
sensitive.
  In many ways, it is as if the majority leader has the corner on what 
is time sensitive. As my friend says, it depends on who you talk to.
  Frankly, the people I am talking to must be similar to the people you 
are talking to. These are bread-and-butter issues. It is safety in 
schools. It is a Patients' Bill of Rights, the quality of health care, 
many, many issues, Medicare, Social Security, that we want to take up, 
in addition to the business issues that the majority leader wants to 
take up.
  I ask my friend, isn't time sensitive a term that we could apply to 
all of the issues that are on the agenda of the Democrats here in the 
Senate under the leadership of Leader Daschle?
  Mr. KENNEDY. Let me answer very specifically on the time-sensitive 
aspect. If we do not increase the minimum wage now to 50 cents this 
year and 50 cents next year, next year the real value of the $5.15 
minimum wage will be $4.90. So they are going to be worse off. Even 
with the 50 cent increase, as the Senator can tell from this chart, we 
are still below what we were during the 1960s, all during the 1970s, 
and up through the 1980s, in terms of purchasing power. This last 
increase was supported by Republicans and Democrats alike.
  Yes, this is time sensitive, because the people who are living on the 
minimum wage are not just holding where they are, they are going down. 
This is at a time when our nation is experiencing the greatest economic 
prosperity in the history of the world. But we evidently don't have 
time to debate and act on this.
  I yield to the Senator from Illinois.
  Mr. DURBIN. If the Senator will yield for a question, after I voted, 
I left the floor before the rollcall was announced on the Senator's 
efforts to bring the minimum wage issue to the floor. Does the Senator 
recall the vote total that was announced?
  Mr. KENNEDY. We were 55 in favor to 44.
  Mr. DURBIN. So it was 55----
  Mr. KENNEDY. Senator Moynihan is necessarily absent. It would have 
been 55 tabling and 45 against tabling. Every Member of the other side 
of the aisle was for denying the opportunity to consider this and 
everyone on this side of the aisle thought we ought to at least 
consider it.
  Mr. DURBIN. So it was a straight party-line vote----
  Mr. KENNEDY. The Senator is correct.
  Mr. DURBIN. Against considering an increase in the minimum wage.
  Mr. KENNEDY. The Senator is correct.
  Mr. DURBIN. Well, I want to ask the Senator: We are considering on 
the floor S. 96, the so-called Y2K bill, which is designed to protect 
businesses. And good, compelling arguments can be made about protecting 
businesses. But doesn't this vote suggest that the majority party feels 
that we should not be discussing help for working families, those in 
the lower income categories who are falling behind even as they go to 
work every single day trying to raise their families? That is how I 
read that vote. It is loud and clear.

  Mr. KENNEDY. As mentioned earlier, it is not just today that we have 
been refused an opportunity to debate it. I have in my hand what the 
leadership has provided as the schedule for all of April and all of 
May. We are coming to the end of April now, but there are still several 
items that haven't been finished in April, and all of May. And nowhere 
on this do we have any indication that we will have the opportunity to 
debate either a minimum wage increase or a Patients' Bill of Rights.
  If the Senator remembers, we were denied the opportunity to debate 
both of those issues at the end of last year as well, and we received 
assurances from the majority leader that the Patients' Bill of Rights 
would be considered in an early part of this session. We have had the 
markup in our Health and Education Committee, but still there is no 
priority on that particular issue.
  So the Senator is right. Not only can we not consider that today, but 
it doesn't seem that it will be possible for consideration at any time 
in the foreseeable future.
  Mr. DURBIN. If the Senator will yield, yesterday we were prepared on 
the floor to offer an amendment relative to school violence, to try to 
prevent a repeat of the tragedy that we saw in Littleton, CO, and in 
Jonesboro, AR, Pearl, MS, West Paducah, KY, and so many other places. I 
believe the Senator and I came away with the understanding from the 
majority leader, Senator Lott, that, yes, within 2 weeks we would have 
our opportunity to consider those issues and some legislation to deal 
with them.
  I ask the Senator from Massachusetts, there is a concern as well 
about teachers and the President's proposal to try to have more 
classroom teachers and a smaller student/teacher ratio in grades 
kindergarten, 1, 2, and 3; is that scheduled to be considered under any 
schedule that the Senator from Massachusetts has seen?
  Mr. KENNEDY. No, it is not, Senator. You have identified something 
which is enormously important and that is the increasing evidence that 
the smaller the schools--schools where every schoolteacher knows the 
name of every child in the school, and knows the parents--and the 
smaller the classrooms, the greater the reduction in incidences of hall 
rage, and other types of school violence. This, it seems to me, would 
be worthy of debate and discussion. If we spent some time, knowing that 
we will debate that, went back to our States and listened to 
schoolteachers and parents for a few days and then came back and talked 
about these types of issues, perhaps we could do something that might 
be useful.
  Mr. DURBIN. One last question to the Senator--and I thank him for his 
patience in responding--all of us are concerned about Littleton, CO, 
and what happened there and school violence in general. There isn't a 
parent in America who isn't sensitive to that today.
  The suggestion of a smaller classroom and more personal attention to 
children in the early stages of their development suggests to me the 
possibility of spotting a child's problem at an early stage and perhaps 
dealing with it successfully rather than having this child pushed 
through the mill, ignored, perhaps not given the personal attention 
they need.

[[Page S4337]]

  It strikes me that there are so many different pieces to this, 
whether it is the guns that make these troubled kids so dangerous to so 
many other people, or the fact that there are troubled children who are 
not getting the personal attention they need.
  I join with the Senator from Massachusetts. I hope we can return to 
an agenda that really identifies the priorities of America's families. 
It is important to talk about Ed-Flex. It is important to talk about 
Y2K. But for goodness sake, before we leave at the end of the year, 
shouldn't we talk about the issues that families talk about when they 
are sitting around the table or around the family room watching 
television?
  I salute the Senator. I hope he will continue with his efforts.
  Mr. KENNEDY. I thank the Senator.
  Mr. President, I yield the floor.
  Mr. WYDEN addressed the Chair.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Oregon.
  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. KENNEDY. If the Senator will yield, I am quite familiar with what 
he is talking about--health care and some of the other issues that make 
a difference. I represent a State that is proudly one of the leaders in 
this area, and I look forward to hearing what the Senator has to say.
  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.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                         American Bar Association,


                                  Governmental Affairs Office,

                                   Washington, DC, April 28, 1999.
     Senator Ron Wyden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Wyden: In listening to yesterday's Y2K debate 
     on the Senate floor, we at the American Bar Association were 
     surprised to hear that you and Senator Sessions believe the 
     ABA has issued a report saying, among other things, that the 
     Y2K litigation could affect billions and billions of dollars 
     of our economy. I can assure you that the ABA has not issued 
     a report estimating litigation costs of the Y2K problem and 
     has not taken any position on the pending Y2K legislation. I 
     understand that your misunderstanding comes from the reading 
     of a Backgrounder prepared by the Progressive Policy 
     Institute which cites in turn from an article in the Newark 
     Star-Ledger.
       The ABA had several programs on the Y2K issue at our 1998 
     Annual Meeting in Toronto and we had speakers at those 
     programs representing all sites of the Y2K debate. In one 
     program, presented by the ABA Section of Business Law's 
     Committee on Corporate Counsel, there were seven speakers. 
     One of the speakers, Jeff Jinnett, said that ``there has been 
     considerable speculation in the legal and public press that 
     the year 2000 computer problem will generate considerable 
     amounts of litigation.'' He summarizes some of the 
     speculation, including the views of one commentator, who had 
     provided the estimate cited in the Newark Star-Ledger. Mr. 
     Jinnett concluded in his speech that ``we can only speculate 
     as to the actual litigation which will result from the Year 
     2000 computer problem and the cost of the ultimate 
     litigation, since (a) no substantial litigation (other than 
     the Produce Palace, Software Business Technologies, Symantec, 
     Macola, and Intuit lawsuits, discussed below) has been 
     reported to have occurred as of the date of this article 
     based on the Year 2000 problem and (b) we do not know how 
     much necessary Year 2000 corrective work will ultimately not 
     be completed on time.'' In any event, the views he expressed 
     are not those of the American Bar Association and should not 
     be referred to as either our policy position or as coming 
     from an ABA ``study'' ``report.''

[[Page S4338]]

       We would appreciate it if you would do what you can to 
     correct the record on this matter. If you have any questions, 
     please let me know.
       I will be sending a similar letter to Senator Sessions to 
     let him know our views as well.
       Thank you for any assistance you can provide on this 
     matter.
           Sincerely,
                                                  Robert D. Evans,
                                                         Director.

  Mr. EDWARDS addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. EDWARDS. Mr. President, let me say to my friend, the Senator from 
Oregon, that I have great respect for him. He knows that. He has spent 
a tremendous amount of time and work on this project, along with 
Senator McCain, for whom I also have tremendous respect, along with my 
great and dear friend, Senator Dodd from Connecticut. All three have 
spent a tremendous amount of time on this issue.
  I will say at the outset that, from my perspective, I do believe we 
need to provide the kind of support and help for the high-tech 
community in this country that it so richly deserves. It is a critical 
issue not only in Oregon but also in North Carolina. We take great 
pride in our high-tech community, particularly in the Research Triangle 
area of North Carolina. My problem is that I don't think this bill 
strikes a proper balance. I think it fails to do so in a number of 
ways. I will candidly admit that I am not fully familiar with some of 
the discussions and negotiations going on right now. We will have to 
see the final product. I only have the bill as it is before us now to 
discuss.
  First, I think there is an enormous problem in doing at least one of 
the things that this bill does, which is to relieve, in some ways, 
businesses and corporations from accountability or responsibility, 
particularly in a day and age when we as Americans are saying to our 
children, to our families, that they need to be responsible for what 
they do. We need to be personally responsible and accountable for 
everything we do.
  How do we say to the children and families of America that they are 
accountable and responsible, fully, for everything they do, while at 
the same time passing legislation in the Congress of the United States 
saying that a particular slice of corporate America is not fully 
accountable and responsible for what it does? I think the reality is 
that it sends a terrible message to our children and to our families. I 
think what they want to hear from us is that every American, every 
child, woman, family, parent and every business is, in fact, fully 
accountable and responsible for what they do, because we as Americans 
believe in personal responsibility and accountability.
  Now, I want to talk about a couple of things by way of background. 
First, we are tinkering here with a civil jury system that has existed 
in this country for over 200 years. Whenever you tinker around the 
margins with a system with checks and balances, which has been at work 
for a long period of time, you create an enormous potential for 
trouble. That is exactly what this bill does.

  The argument is made on behalf of this bill that it will decrease 
litigation, that it will help with this anticipated but still fictional 
litigation explosion.
  The reality is that bill creates a morass of potential litigation. It 
creates new terminology. It creates new definitions, and it has 
descriptions of legal avenues that can be pursued that have not existed 
heretofore.
  The jury system that we have in this country has been developed over 
a long period of time. There are many trial and appellate decisions 
that we can rely on and depend on.
  This bill creates a whole new genre of litigation and appellate 
decisions. There will be enormous fights over some of the language in 
this bill. More importantly, one of the things this bill does is it 
dilutes the jury system. The reality is, if you believe in democracy, 
you believe in the jury system, because the jury system is nothing but 
a microcosm of democracy.
  Speaking for myself, and I think speaking for most Americans, I have 
tremendous faith--in fact, I would go so far as to say I have a 
boundless faith--in the Americans who sit on juries all over this 
country every day who render justice and render fair decisions, fair to 
both sides, in any litigation. This bill dilutes the responsibility 
that we give those Americans.
  I personally have more confidence in regular Americans, North 
Carolinians, farmers, bankers, people who work in stores, people who 
are engaged in all walks of life, who come in and sit on the jury, hear 
cases, and do what they think is right. I have more confidence in them 
than I do in us as a body trying to impose upon them what we think is 
fair and just across the board. Those juries hear the facts; they hear 
the circumstances from both sides, and they render justice. They do 
what they think is fair and right.
  Anybody, as I said earlier, who believes and has confidence in 
Americans who sit on those juries, knows that the decisionmaking should 
stay right where it is--with the jury.
  Let me talk for just a minute about this Y2K problem, because this is 
not a new problem. The history of this problem is, I think, greatly 
educational in terms of where we are.
  If I could look at a chart, the title of this chart is ``Y2K. Why do 
today what you can put off 'til tomorrow?"
  This is not a new problem.
  I might add that, along with Senators Dodd and Bennett, I also serve 
on the Y2K committee. We have learned a great deal through the hearings 
that have taken place on that committee.
  For example, in 1960, Robert Bemer, who was a pioneer in computer 
sciences, advocated the use of a four-digit rather than a two-digit 
date format. This is now 39 years ago--almost 40 years ago. One of the 
pioneers of American computer science said it is an enormous mistake to 
go to a two-digit system instead of a four-digit system.
  In 1979, he wrote again, the same Robert Bemer, in a computer 
publication about the inevitable Y2K problems, unless this defect is 
remedied. He warned, ``Don't drop the first two digits. The program may 
well fail from an ambiguity in the year 2000.''
  We have known about it for 40 years.
  In 1979, 20 years ago, he is telling the industry you have to do 
something about this, and you have to do something about it now.
  In 1983, an early Y2K-fix software was marketed and sold in this 
country which dealt with the Y2K problem. How many copies of that 
software were sold? Two copies of this software that addressed this 
problem were sold.
  In 1984, just 1 year later, ``Computerworld'' magazine said, ``The 
problem you may not know you have,'' and they warned companies to start 
making modifications now--in 1984, 15 years ago.
  In 1986, there was a publication by another computer magazine where 
IBM asserted:

       ``IBM and other vendors have known about this problem 
     for many years. This problem is fully understood by IBM 
     software developers who anticipate no difficulty in 
     programming around it.''

  Then in 1988, the National Institute of Standards and Technology 
said, ``NIST highly recommends that four-digit year elements be 
used''--11 years ago.
  In 1989, the Social Security Administration's computer experts found 
that the overpayment recoupment systems did not work for dates after 
2000, and realized that 35 million lines of code had to be reviewed.
  Finally, in 1996, Senator Moynihan requested the Congressional 
Research Service report on Y2K. It predicted widespread massive 
failures. He introduced legislation to create a special office for Y2K 
problems and to establish compliance deadlines. It died in committee.
  Finally, in 1999, this year, Bill Gates blamed Y2K on those who 
``love to tell tales of fear.'' At the same time, Microsoft was still 
shipping products that were not Y2K compliant.
  My point is a simple one. This Y2K problem has been around for 40 
years. Those folks who are involved in this business have known about 
it. The truth is that many of the people involved in the computer 
industry have worked hard at correcting this problem. They have 
addressed it in a very responsible way. Those people will have no 
liability and no responsibility from any failures that occur.
  The people who I think make up a great deal of the high-tech 
industry, who have acted responsibly, who have recognized that this is 
a problem, who have gone out to the people who they

[[Page S4339]]

have sold their products to, and done everything in their power to 
correct this problem, those people have no responsibility. Under the 
current legal system, they have absolutely no responsibility. They 
can't be held responsible.
  The people who can be held responsible are those who have known about 
this problem for 40 years and have done nothing to correct it, and, in 
fact, over the course of the last few years have continued to sell 
products that are not Y2K compliant, and are not concerned about the 
result. They have their product sold. They have their money in, and 
they have let the people who bought the product worry about the 
problem, or it would be dealt with later.
  We have no business in this Senate providing protection for people 
who have engaged in that kind of behavior. That is exactly what this 
bill does.
  It has a number of problems in it. Let me just talk about a few of 
them briefly.
  First, my friend, the Senator from Oregon, mentioned a few minutes 
ago that he thought it was important for punitive damages that we be 
able to send a powerful message to those who had acted irresponsibly 
and recklessly.
  This bill places enormous limits on punitive damages that can be 
awarded, punitive damages that under existing law--if this bill never 
goes anywhere, never passes, never becomes law, as I stand here today, 
businesses can only be held accountable for punitive damages if they 
have engaged in reckless, egregious, willful, sometimes criminal, 
conduct. It is the only circumstance in which a business can be held 
liable for punitive damages.
  My friend, the Senator from South Carolina, who just joined us, is 
fully aware of that. We have an existing law that provides that 
protection.
  ``Joint and several liability'' are terms that lawyers use regularly. 
But they are critically important terms. The terminology that we hear 
used by my friend, Senator Dodd, and Senator Wyden, is ``proportionate 
liability.'' It is very important for the American people to understand 
what this bill will do to them if it passes.
  Let me give an example. A small business man--say a grocery store 
owner--buys a computer system that is necessary to run his business on 
a day-to-day basis. This is a family business. The system fails. As a 
result of the system failing, he is unable to keep his doors open over 
a period of 2, 3, or 4 months. All of these businesses operate on very 
short-term cash flow. They need money, and they need it on a daily 
basis. If they don't have it because the computer fails, they get run 
out of the business.
  So we have this family-owned grocery store that has been run out of 
business because their computer system didn't work. Keep in mind, we 
are talking about a regular American who runs a business. These are not 
computer experts. They are not experts in lawsuits and litigation. They 
don't know what they are supposed to do.
  In my example, they discover that three different companies 
participated in making their computer system. So they bring an action 
against those three companies to recover for the cost of what happened 
with their system and for the fact they have now been put out of 
business. Any fair-minded American would say if these companies knew 
about the problem, knew they had sold them a product that was 
defective, they ought to be held responsible for that.
  Joint and several liability says each one of those companies can be 
held liable and responsible for what happened to this family grocery 
store. This bill says if for some reason one of those three companies 
is out of business, you can't collect against the other two. Maybe one 
of the three is an offshore company--which will be true on many 
occasions with respect to this kind of case--and you can't reach it. 
Then, because of this bill, you can't reach the other two. This bill 
says the innocent grocery store owner bears that share of the 
responsibility.
  Joint and several liability, which has existed in this country for 
200 years, exists for a very simple reason: It is just, and it is fair. 
We have a choice: Somebody is going to suffer this damage. Should the 
cost of this damage be paid by the absolutely innocent grocery store 
owner? Or should it be paid and shared by the defendants who were 
guilty? It is that simple. It is the guilty on one side, the innocent 
on the other.
  The question is, Who is going to share in paying for the damage that 
has been done? Joint and several liability says that responsibility is 
borne by the guilty and is never to be borne by the innocent. That is 
the reason that system has existed.
  This bill, first of all, essentially eliminates joint and several 
liability as a starting place. Then it sets up a complex--I am a lawyer 
and I can barely understand what it says--exception which creates 
certain circumstances where this grocery store owner can make an effort 
to collect some of his money from the other defendants if, in fact, 
there is an uncollectible defendant. But he has to jump through lots of 
hoops and he has to do it in 6 months, which is the time limitation. 
Having been in the trenches for 20 years doing these cases, it is 
almost an impossible task to finish the process of trying to collect in 
6 months.
  The bottom line is, it creates a very narrow exception and puts the 
burden entirely on the innocent party to jump through these hoops. It 
makes absolutely no sense. The system that exists in America and has 
existed for 200 years exists for a good reason. It has been fair and 
just for 200 years. It is fair and just now. There is absolutely no 
reason to change it. It makes no sense to change it.
  Let me use the chart that my friend, Senator Leahy, referred to 
earlier--and he did a beautiful job of that. Across the top of this 
chart is the present justice system. I want to emphasize for Americans 
who are listening that no computer company or high-tech company can be 
held responsible under existing law unless they have acted negligently 
or irresponsibly.
  Under this jury system that we have in this country today, we have a 
very simple process. We go through the process of making a claim and 
seeing if they respond to the claim. If they don't, a lawsuit is filed, 
the case is eventually heard, and there is a result. Or, on the other 
hand, as happens in almost 99 percent of the cases, if the company 
recognizes that the problem was their responsibility, they pay for it. 
They settle the case, because they know they have a responsibility to 
pay for what they caused. So we have a quick, fair settlement or we 
have a fair trial. We have a system that is in place and has existed 
for 200 years and systems that work State by State.

  I have to add to this, I don't know why we as a Senate and as a 
Congress think we are so much smarter than our State legislatures that 
have passed laws over many years and have court systems that deal with 
these problems. They are fully capable of addressing this problem. I 
personally believe if this were an issue, it could easily be addressed 
at the State level.
  The reality is, the existing system that we have will work. It is 
simple. It is streamlined. And it will get a fair result for everyone 
concerned.
  On the other hand, if we enact this morass that I have in my hand 
right now, what we will have is the biggest mess anybody has ever seen 
in the court system. First of all, all the cases are going to go to 
Federal court instead of State court. The National Judicial Conference 
has said the Federal judicial system is already overburdened before 
they ever get these cases. They don't have enough resources; they don't 
have enough judges. What we are about to do is dump an enormous pile of 
new cases in the Federal judicial system which they don't want and 
which they don't have the resources to handle.
  We start this complicated process, and without going through all the 
details--Senator Leahy has outlined it beautifully--it is one roadblock 
after another to the innocent party, the grocery store owner, the guy 
who was put out of business because his computer system wouldn't work 
and he had nothing to do with it. Every time he moves, he runs into 
another roadblock. He doesn't have the resources to fight this battle. 
It is a long and tortuous process that ultimately makes no sense.
  We have a system that works. There is no reason to do this.
  Let me give an example of problems we create in a bill like this. 
There is a provision in this bill that says in any lawsuit a defendant 
can raise Y2K as a

[[Page S4340]]

defense. If you have one business suing another business for a 
contract--no matter what the claim is about; it could be about 
anything--and the defendant says, wait a minute, this is a Y2K computer 
problem, all of a sudden you have triggered enormous, procedural, 
bureaucratic hurdles that have to be jumped through. The case goes into 
Federal court. We have this big mess. A tool has been created to 
complicate a simple lawsuit that could be over and resolved in very 
simple fashion.
  I don't suggest for a minute that the people who crafted this bill 
don't have the very best intentions. I believe they do. I myself--and I 
only speak for myself--have no problem with the idea that we ought to 
try to provide incentives for people who are engaged in disputes to 
resolve those disputes. Alternative dispute resolution, I think, is 
fine. A cooling off, some period when these folks can talk to each 
other and try to work it out is fine. I think, if there is a problem, 
we want to promote discussion between the innocent person who bought 
the computer system and the people who make it. I think we want to do 
all of those things. Those are laudable goals. The problem is what we 
have here is an extremist version of a bill that takes away rights of 
the innocent party and creates enormous hurdles to that innocent party 
ultimately recovering.

  I might add, I think this is unintentional. But the proposal makes 
the recovery of economic losses virtually impossible. Here is the 
reason. When I say economic losses, for example in my grocery store 
story, the recovery of the cost of the computer would not be considered 
an economic loss. But the fact that these folks have been put out of 
business and their grocery store is not in business anymore and they 
have lost the profits they would have made in their grocery store for X 
number of years, all because of an irresponsible computer maker that 
would be an economic loss. Well, in order to recover those economic 
losses that they had nothing to do with--they are totally innocent--in 
order to recover for those injuries, they have to have a written 
contract, or a contract that says they can recover under the terms of 
this bill.
  Think about that. Use a little common sense here. How many Americans, 
small business men, who go out and buy a computer system have been 
thinking about: Well, I better make sure I have a written contract that 
says if my computer system fails I can recover my losses, my economic 
losses--my lost sales, my lost profits as a result? The reality is, to 
the extent there is any contract other than a handshake or walking in 
the store and buying the computer system, the contracts are drafted by 
the manufacturers, because they are the ones with the lawyers, a big 
team of lawyers. They draft these contracts. If anything, they are only 
signed by the purchasers. So the likelihood that these contracts are 
going to have any provision in them for the recovery of economic losses 
is almost nonexistent.
  The bottom line is this. I think the intention of my colleagues, 
Senator McCain, Senator Wyden, Senator Dodd--I have absolutely no doubt 
their intentions are only the best. They want to do exactly what they 
say they want to do, which is to create incentives for these high-tech 
companies to correct these problems and not to create, from their 
perspective, a morass of litigation.
  The problem is this bill does not do that. I spent many years in the 
trenches, in courtrooms, fighting these battles. I can respectfully say 
that I have read the entire bill. It has numerous problems, including 
some of the ones I have described today. But I do believe we could 
fashion a bill, I say to Senator McCain, who has just arrived--fashion 
a bill that would accomplish some of the things they want to 
accomplish, which is instead of going straight to litigation, have 
folks talking to one another, working out the problem, curing the 
problems with the computers. That is in everybody's best interests. I 
want that. I think all of us here in the Senate want that.
  But it is my belief, having studied this bill and having studied it 
carefully--and I will concede I have not seen the most recent 
discussions because I don't think they have been put in writing yet--
but the version we have before us now is completely unacceptable and 
creates many more problems than it cures. Instead of reducing 
litigation, I think in fact it creates a vehicle for not only trial 
litigation but appellate litigation that will go on for many years to 
come.
  Mr. HOLLINGS. Will the distinguished Senator yield?
  Mr. EDWARDS. Yes.
  Mr. HOLLINGS. Mr. President, the Senator has come to the Senate not 
just as a practitioner, but as a brilliant one, as you can tell from 
his comments here on the floor of the Senate this afternoon.
  Is it not a fact that what this really does is create disincentives 
to produce a good Y2K-compliant product--isn't that correct? If 
companies know they do not have to worry about making their products 
competitive and reliable, they have no incentive to make a good 
product. In fact, removing any threat of litigation will remove any 
need for technology companies and businesses to ensure that their 
products and systems are ready to handle the Y2K problem. I have been 
asked by none other than Jerry Yang, the head of the Internet company 
Yahoo, to oppose this bill, because Mr. Yang said he will use the fact 
that companies do not have Y2K-compliant computers when he competes 
with them.
  So, isn't it the fact that when you get this kind of obstacle course 
of legalities companies will say: We do not have to worry about the 
quality of the product or whether or not it is Y2K compliant, because 
by the time they can finally get to me, and everything else like that, 
on a cost/benefit basis it is better for me to get rid of all these old 
noncompliant models. I don't mind paying a few lawyers to protect me on 
these hurdles here. Isn't that the case?
  Mr. EDWARDS. I believe that is the case for that small number of 
companies this is all about.
  Mr. HOLLINGS. Right.
  Mr. EDWARDS. I do believe, and I know my colleague will agree with 
me, that the vast majority of these companies are totally responsible. 
They want to cure these problems. And in fact, they will cure them, and 
as a result will never be involved in any of this process.
  Mr. HOLLINGS. That is what ``Business Week'' just put out a month ago 
in its March 1 issue. The marketplace was taking care of what problems 
could ensue come January 1 of the year 2000. All of the blue chip 
corporations--grocery, manufacturers, automotive dealers--everybody is 
really concerned if they don't perform and have Y2K compliance, they 
are going to lose the business. The blue-chippers have come around and 
told their suppliers and distributors and everything else: Unless you 
become Y2K compliant, we are going to find a new sales force and 
distributors and otherwise to handle our product.
  Really, that is the conclusion to which the ``Business Week'' article 
came. In fact, the Y2K problem is going to clean out the laggards and 
bring out nothing but good, quality producers. It is not going to be a 
problem come January 1, because the market is behaving effectively. We 
get extremes like this legislation because the Chamber of Commerce gets 
down there and starts talking about a trillion dollars' worth of 
lawsuits, and we see entities coming in not knowing really what is at 
issue.
  The fact is, then having said that, they are way off base in the 
whole thing with respect to the market itself. And as the Senator 
indicates, the responsible producers in America, they are the best of 
the best because they are competing internationally with the Japanese 
and everything else. So we have the best producers and they will 
comply. They want to comply because that is good business. They don't 
want to get bogged down with lawyers and everything else like that.
  But a few companies want to have the political crowd in Washington 
throw up an obstacle course for consumers and small businesses, so that 
those companies do not have to worry about making good, reliable, Y2K-
compliant products.
  Mr. EDWARDS. I agree with that, and I would add, based on my 
conversations with the high-tech companies that do business in North 
Carolina, I am totally convinced they will act responsibly, they will 
do what they are supposed to do, and I do not think those are the 
companies that this bill

[[Page S4341]]

addresses or that we are concerned about, in any event.
  Mr. HOLLINGS. Isn't that the case? That is why you find the extremes 
of tort law provision in here, and joint and several? The drive really 
is not to take care of the Y2K problem but to take care of what they 
call the lawyer problem in business. It has brought about the most 
responsible production in the entire world. We have quality production. 
We have safe articles on the market. On product liability and 
everything else, they have been coming after us for 20 years. Now they 
have all joined together, of all people not to hurt, just injured 
individuals with bad back cases like you and I have handled, but on the 
contrary, little small businesses, individual doctors who have to have 
a computer and have to keep up with their surgery and everything else 
of that kind.

  I cite that because that is the testimony we had before the Commerce 
Committee. An individual doctor, in 1996, bought a computer. They 
bragged how it was going to last for 10 years and be Y2K compliant. And 
instead of being Y2K compliant, it was not. He asked for it to be 
repaired. He went twice to do it. They told him, you might have bought 
it for $16,000, but it is going to cost you $25,000. He didn't have the 
$25,000 to make it compliant. He finally brought a lawsuit, and the 
computer industry on the Internet picked it up and before long he had 
$17,000 against this particular supplier. They came around immediately 
and said: We will do it for free for everybody and pay the lawyers' 
fees.
  That is what we are trying to avoid. But I do congratulate the 
Senator on his very cogent analysis and commonsensical approach and 
experienced judgment that he has rendered here this afternoon on this 
particular issue.
  Mr. EDWARDS. Mr. President, I yield the floor.
  Mr. HOLLINGS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I paid attention to the exchange. The 
Senator from North Carolina was not here. The Senator from South 
Carolina was here when we fought for 10 years on a little item called 
aircraft product liability. I know the Senator from South Carolina 
fought viciously against that. The whole world was going to collapse if 
we gave an 18-year period of repose to aircraft manufacturers for 
products they built and manufactured.
  Now there are 9,000, at least, new employees, and we are building the 
best piston driven aircraft in the world, thanks to that legislation.
  Ask any of the owners of those aircraft companies and those people 
who are working there. It is because we finally passed that bill over 
the objections of the American Trial Lawyers Association which fought 
it for 10 years.
  Mr. HOLLINGS. Will the distinguished Senator yield?
  Mr. McCAIN. I will not.

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