Daniel Moynihan

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, the Comprehensive Regulatory Reform Act of 1995 is a response to the belief that our executive branch agencies have become unreasonable in their regulation of the behavior of businesses and individuals. This is a powerful idea whose influence has, until recently, been underestimated. No longer. This is the third time this year that the Senate has considered legislation to restrain such Government action. On January 27, 1995, the Senate passed S. 1, the Unfunded Mandates Reform Act, which requires Congress to acknowledge, by recorded vote, the costs imposed by Federal laws on State and local governments, as well as on the private sector. President Clinton signed the unfunded mandates on March 22, 1995. Just 2 months later, the Senate passed S. 219, the Regulatory Transition Act, which established a 45-day review period for congressional review of regulations. Conferees are now attempting to reconcile that bill with the House-passed legislation, which places a temporary moratorium on Federal rulemaking. The same concerns have prompted the Senate to take up the Comprehensive Regulatory Reform Act of 1995 now before us. A central element of this bill is the requirement that agencies justify their actions through risk assessment and cost-benefit analysis. This is not a new idea, although it is given unprecedented emphasis in this bill. I first introduced legislation to require risk assessment of environmental regulations in 1991, and I have introduced similar legislation in each succeeding Congress. All of these bills have been based on the simple proposition that decisionmaking by Federal agencies ought to be informed by the best available science. Of course, science cannot be the sole basis of agency decisions, for there are limits to scientific knowledge, and what we do know is imprecise. Yet science must be taken into account. We must have the humility to acknowledge what we don't know, but also the good sense to make use of what we do. That was the approach taken by the legislation I introduced in previous years, and it was the approach of the Johnston-Baucus-Moynihan amendment that passed the Senate as part of the Safe Drinking Water Act reauthorization bill in May 1994. That amendment would have required EPA to conduct risk assessments and cost-benefit analyses for all major regulations. EPA would have been required to certify that the benefits of a rule justify the costs and that no regulatory alternative would be more cost-effective in achieving an equivalent reduction of risk. Unlike the measure before us, last year's legislation would not have superseded existing law, and EPA's analyses would not have been subject to judicial review. Our amendment was modest enough, but predictably it had opponents, including some members of the Clinton administration and certain representatives of the environmental community. They seemed to view the issue only in absolute terms, being of the view that requiring cost- benefit analysis and risk assessment would bring about the dismantling of environmental regulation by requiring EPA to consider risks and costs over environmental health and safety. Over the last 4 years, it has been our repeated experience--mine--to hear such complaints from environmental groups. Indeed, it is well known that opposition to risk assessment was significant enough last year to help kill the EPA Cabinet bill and the Safe Drinking Water Act reauthorization. Note well. Had the Environmental Protection Agency in 1994 accepted risk assessment and cost-benefit analysis as part of its mandate, it would be a cabinet department today. Let me give one example of the sort of analysis some have chosen to apply to risk assessment proposals. On May 21, 1991, Joseph Thornton, a policy analyst with Greenpeace, testified before a hearing of the Environment Subcommittee of the House Committee on Science, Space, and Technology on the ``Risk Assessment: Strengths and Limitations of Utilization for Policy Decisions.'' This is what he said: Greenpeace and communities who have experienced risk assessment first hand are united that risk assessment endangers the environment, public health, and the democratic process as it is now practiced. The major real world use of risk assessment has been to approve pollution. . . . Even when [it has] been used for the purpose of setting priorities, quantitative risk assessment is a flawed, uncertain, and subjective process that is subject to political pressures from those who have the most resources, and the most influence. (Emphasis supplied.) This was not untypical of attitudes we encountered. The terms of the debate even began to take on a curious doctrinal cast: It became fashionable at one point to refer to risk assessment as one element of an Unholy Trinity. According to Mr. John D. Echeverria, a National Audubon Society attorney quoted in the New York Times on February 7, 1994, the Unholy Trinity is comprised of proposals on risk assessment, unfunded mandates, and Government takings of private property. And so I suppose I should not be surprised that, despite the fact that my League of Conservation Voters record has frequently risen above 90 percent, and despite having once been Chairman of the Senate Committee on Environment and Public Works, I have never, in 19 years on the committee, received a letter of commendation from the environmental community, a community not the least averse to plastering congressional walls with plaques. As an advocate of risk assessment, I am viewed with suspicion. Not surprisingly--it is an old story--the legislation now before the Senate is far more prescriptive than anything advocated in the past by this Senator. The controversy that accompanied any discussion of risk assessment and cost-benefit analysis as recently as a year ago has all but disappeared. Today, even opponents of the Dole-Johnston bill are quick to state they favor the use of sound cost-benefit analysis and risk assessment in environmental decisionmaking. A year has passed, an election has intervened, and now we are faced with the Comprehensive Regulatory Reform Act of 1995. One wonders whether the opponents of the early efforts by the Senators from Louisiana, Montana, and New York may be a bit wistful about the opportunity they passed up last year. Clearly, the terms of the debate have changed. The Senate has changed. We never seem to learn that the failure to recognize the need for sensible, incremental change invites radical change. Although the Dole-Johnston compromise significantly improved the earlier drafts of this legislation, it does in my view overreact. I share many of the concerns of my colleagues and hope further amendments will be accepted to improve the bill. At this point, I would like to set forth the principles that have guided my votes on this important legislation. [[Page S 10224]] As I have said, I do support the appropriate use of cost-benefit analyses and risk assessments in major rulemaking. However, I recognize that risk assessment and cost-benefit analysis are imperfect tools. Even in the best analyses, significant uncertainties exist. More important, any legislation that would impose a cost-benefit test must recognize that other factors including values, equity concerns, and policy judgments are equally important or even dispositive factors in the decisionmaking process. These points were well illustrated during our debate on the acid rain provisions of the Clean Air Amendments of 1990. Cost-benefit considerations were important elements of the debate. However, in the end Congress made policy judgments based in large measure on the unquantified and unquantifiable value we place on our natural environment. We decided, for instance, that some regions of the country, such as upstate New York, should not be forced to bear a disproportionate impact of acid rain pollution. We now know that the actual costs of the acid rain program are less than one-third of most estimates at the time, and that we still do not understand the ultimate impact of acid deposition on the environment. That experience illustrated the limitations of cost-benefit analysis as a rigid decisionmaking tool, and it ought to be a lesson to us. Returning to the Dole-Johnston bill, we reached a consensus last week on two major issues. First, we recognized the tremendous resource burden that risk assessment and cost benefit analyses impose on agencies, and we changed the definition of major rule to $100 million rather than $50 million. This is a move in the right direction. However, the adoption of another amendment, which extends the definition to include rules that have a major effect on small business, may recreate the problem we were trying to correct. Second, we clarified our intention that the legislation should not impose a supermandate. That is, it should not override existing law. This does not mean we are entirely satisfied with existing laws, but it recognizes that we will not suddenly attain to vastly more intelligent and effective regulations by this single piece of legislation. I disagree with those who view regulatory reform legislation as a simple answer to the problems accompanying our current health, safety, and environmental statutes. Problems do exist--with Superfund, with the current interpretation of the Delaney clause, and elsewhere. To achieve true comprehensive regulatory reform, we should move forward with current efforts to reauthorize and improve important statutes such as Superfund, the Clean Water Act, and the Safe Drinking Water Act. I also have continuing concerns with the judicial review and lookback provisions of the Dole-Johnston bill. Regulatory reform should not provide expansive opportunities for technical and procedural challenges, as much as K Street might wish. We should not turn the courts into arbiters of the adequacy of highly technical cost-benefit analyses and risk assessments. For example, section 634 of the Dole- Johnston bill would allow interested parties to petition agencies to review existing risk assessments and would subject agency decisions on petitions to court challenge. Do we really expect courts to decide whether the agency or industry interpretation of the data should prevail? Do we really think we can legislate, and litigate, good science? Let us clearly and unambiguously limit judicial review only to final agency rulemaking actions. Further, while I agree that the periodic review of existing rules is an important element of regulatory reform, the lookback process should be constrained to focus on the most significant opportunities for improvement. We need a process that is controlled by the agencies, using clearly defined criteria, with adequate opportunity for public comment--not one controlled by special interests or the courts. I am pleased that the comparative risk principles which I have proposed on earlier occasions have been incorporated in both the Dole- Johnston bill and the Glenn-Chafee alternative. However, as I have said before, the use of comparative risk to help set agency priorities must recognize the limitations of current methods and provide for continuous development of the discipline. I therefore strongly support the recommendation in the bill that a nationally recognized scientific body be asked to evaluate the state of the science and identify opportunities for improvement of this important science policy tool. Finally, it ought to be said that many of the problems with our current system cannot be solved by the application of cost-benefit analysis, risk assessment, or any other device. Recently, we received a major study conducted by the National Academy of Public Administration, ``Setting Priorities, Getting Results.'' The report makes a number of recommendations for improving environmental decisionmaking. As we debate the appropriate role of risk assessment and cost-benefit analysis, we should heed this admonition: Risk analysis is not a cure-all. The members of Congress and other decision-makers who have displayed a strong desire for more objective and precise quantitative estimates of environmental risks and of the costs and benefits of environmental protection will be disappointed. The unfortunate reality, that EPA and Congress must confront, is that neither risk assessment nor economic analysis can answer most of their crucial questions about environmental problems. The tools can only approximate answers with varying degrees of certainty, and the answers often cannot be reduced objectively to a few numbers. The objective findings of science are essential components of EPA's decisions, but wholly insufficient as a base for environmental policy- making. The report goes on to state, ``Despite these problems, summaries of costs or benefits are useful if they encourage analysts or decision- makers to think rigorously about what impacts and values should be included.'' This is the core of what we need to accomplish in regulatory reform legislation: greater scientific rigor in agency thinking and decisionmaking. Let us acknowledge that with this legislation the task of creating a more effective national effort to improve the Nation's health, safety, and environmental quality has just begun.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise today to pay tribute to a most significant organization, the Association for the Advancement of the Blind and the Retarded [AABR]. Based in Jamaica, NY, the AABR is a private organization committed to enhancing the quality of life for our developmentally disabled citizens. For four decades they have been a leader in helping disabled individuals live a more fulfilling, dignified, and independent life. The AABR's professional and paraprofessional staff members are trained in the latest advances and methods of instruction for aiding adults and young adults with multiple handicaps. Through the operation of intermediate care facilities and community residences, the AABR offers communal settings for young disabled adults to live, work and recreate together under the supervision of an expert staff. As well, the AABR operates day treatment centers, family services, recreation programs, a vacation retreat, and education programs throughout New York City. Their successes are truly inspirational. AABR's significant accomplishments over the years have won the praise and support of the private sector. And on July 31 of this year the Metropolitan Club Managers Association [MCMA] of New York continues their support by hosting its 22d annual charity golf and tennis tournament and dinner dance to benefit AABR's handicapped youth. The encouragement and support provided by MCMA is indeed noteworthy and sets a glowing example for others to follow. I ask my colleagues to join me in extending great good wishes for an enjoyable event and much continued success to AABR, MCMA, and all those involved in this most worthwhile cause.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise today to pay tribute to a great man, Rabbi Judea Miller. He passed away July 9, 1995, and the loss of his presence is already felt by all those who knew him. A much respected fixture in the city of Rochester, NY, Rabbi Miller led an exciting life in which he continually challenged the status quo and injustice in society. Born in New York City in the early 1930's, Rabbi Miller first served as a rabbi in the U.S. Army at Fort Riley, KS. After completion of his service, he moved to Temple Emanu-El in Witchita, KS and then to a temple in Malden, MA before settling at Temple B'rith Kodesh in 1973. Yet throughout his geographic moves, the rabbi held dear the notions of equality and acceptance. In 1962, he traveled south to Mississippi to assist in the voter registration drives. There, he and a local minister dined at a Woolworth's lunch counter, marking that restaurant's first integrated meal. He continued this fight for justice taking stands against slumlords and poor education and capital punishment. He was a defender of faith in the largest sense and he reached out to other religions. Said the Reverend Dwight Cook of Mt. Olivet Baptist Church, ``Rabbi Miller was about bringing people of different races and different religions together.'' He will be remembered dearly by his friends, his congregation, and the city of Rochester. He will be remembered, the Rochester Chronicle and Democrat said, as, ``a voice of dignity, reason and compassion, speaking always on behalf of justice and peace.'' Those who knew him already miss him dearly. Rabbi Miller is survived by his wife, Anita; his son, Rabbi Jonathan Miller; his daughter, Rebecca Gottesman; his mother, Yetta Waxman; and five grandchildren. Mr. President, I ask unanimous consent that the following article from the Rochester Democrat and Chronicle be placed in the Record.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise today to pay tribute to David H. Sawyer, a pioneer in the field of political consulting, a brilliant analyst, and a dear friend. David died on July 2, 1995, in New York City. His presence will be sorely missed by all those who knew him. ``A pioneer in the ways to cope with the weaker party machines of the 1970s,'' according to the New York Times. In an interview he once defined his work this way, ``I don't manipulate voters, because I can't--they're too sophisticated. I'm much more interested in the nature of communication itself. How do you create a dialogue with the electorate? How do you control the dynamic of the campaign? Set the agenda for discussion? Answer an opponent's charges? Those are my issues. You have to get way inside a campaign before you can resolve them, too.'' His firm, D.H. Sawyer and Associates, later renamed the Sawyer-Miller Group, took some of the mystery out of how to succeed in today's complicated electoral process. David brought a dynamic and insightful approach to political campaigns. He was able to understand and connect with voters, and to deliver his candidate's message in a simple but absorbing manner. I came to know David during my 1982 re-election campaign, and he has been a loyal and trusted advisor on every campaign since. David helped to open up the governments of Eastern Europe and Latin America by introducing mass communication into their electoral processes. In an interview with the Los Angeles Times he described this concept as ``electronic democracy,'' and went on to say: ``Because of mass communications and the legacy of the '60s, people now speak out, people can and will be heard. Eastern Europe in 1989 and 1990 happened because information had gotten through. What people think about their institutions is crucial to the institutions' ability to govern.'' David leaves his wife, Nell; a son, Luke; two stepsons, Andrew and Gavin; his mother Mrs. Edward Brewer; his brother Edward; and a sister Penny. He will be greatly missed by those who love him. I ask unaminous consent that the full text of the article from the New York Times be printed in the Record.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, last weekend I was honored to have participated in the ceremonies in San Francisco commemorating the 50th anniversary of the signing of the U.N. Charter. The event was an important reaffirmation of the commitment of member nations to abide by the rule of law. The ceremonies were enriched by the participation of those who had participated in the conference 50 years ago. We in the Senate are honored to have the beloved former chairman of the Senate Foreign Relations Committee, Claiborne Pell, counted among those who were ``Present at the Creation'' of the Charter. Senator Pell served throughout World War II in the Coast Guard. He continued to serve his country, as he has all his life, when he was called to be a member of the International Secretariat of the San Francisco Conference, as it worked to draft the Charter. Senator Pell served as the Assistant Secretary of Committee III, the Enforcement Arrangements Committee, and worked specifically on what became articles 43, 44, and 45 of the Charter. In an article in the New York Times by Barbara Crossette, Senator Pell recalls the trip to San Francisco: It started out just right, he recalled in a recent conversation in his Senate office. Instead of flying us to San Francisco, they chartered a train across the United States. You could see the eyes of all those people who had been in wartorn Europe boggle as we passed the wheat fields, the factories, he said. You could feel the richness, the clean air of the United States. It was a wonderful image. We shared a spirit, a belief, that we would never make the same mistakes; everything would now be done differently. Senator Pell's commitment to the Charter was properly noted by the President, when during his address in San Francisco on Monday, he stated ``Some of those who worked at the historic conference are still here today, including our own Senator Claiborne Pell, who to this very day, every day, carries a copy of the U.N. Charter in his pocket.'' On Sunday, the Washington Post carried an article by William Branigin on the drafting of the Charter. I ask that it be printed in the Record. The article follows: [From the Washington Post, June 25, 1995] U.N.: 50 Years Fending Off WWIII--Charter Forged in Heat of Battle Proves Durable, as Do Its Critics (By William Branigin) United Nations.--It was the eve of her first speech before the 1945 organizing conference of the United Nations, and Minerva Bernardino was eager to seize the opportunity to push for women's rights. Then, while serving drinks to fellow delegates in her San Francisco hotel suite, she fell and broke her ankle. For the determined diplomat from the Dominican Republic, however, nothing was more important than delivering her speech. So after being rushed to the hospital in an ambulance, she refused a cast, had doctors tape up her ankle instead and enlisted colleagues the next day to help her hobble to the podium. Bernardino, 88, is one of four surviving signatories of the U.N. Charter, which was hammered out during the two-month conference by representatives from 50 nations and signed in San Francisco on June 26, 1945. With a handful of other women delegates, she claims credit for the charter's reference to ``equal rights of men and women.'' Just as she witnessed the birth of the United Nations that day in the presence of President Harry S. Truman, Bernardino plans to be in the audience Monday when President Clinton caps the 50th birthday ceremonies with a speech at San Francisco's War Memorial Opera House, scene of the historic conference. Truman, whose first decision after taking office in April 1945 was to go ahead with the conference, had flown to San Francisco to carry the charter back to Washington for ratification by the Senate. Gathering for the anniversary are envoys from more than 100 countries, senior U.N. officials led by Secretary General Boutros Boutros-Ghali, Britain's Princess Margaret and several Nobel peace prize laureates, including Polish President Lech Walesa and South Africa's Archbishop Desmond Tutu. In creating the United nations 50 years ago, the more than 1,700 delegates and their assistants were driven by the horror of a war that had cost an estimated 45 million lives. Among the founders were prominent diplomats: Vyacheslav Molotov and Andrei Gromyko of the Soviet Union, Edward R. Stettinius of the United States and Anthony Eden of Britain. The sole surviving U.S. signatory is Harold Stassen, the former Republican governor of Minnesota and presidential aspirant, now 88. The leading conference organizer was its secretary general, Alger Hiss, then a rising star in the State Department. He later spent four years in prison for perjury in a controversial spy case that launched the political ascent of Richard M. Nixon. Now 90, in poor health and nearly blind, Hiss has been invited to the commemoration but is unable to attend. ``We had a sense of creation and exhilaration,'' said Sen. Claiborne Pell (D-R.I.), who was then a young Coast Guard officer attached to the conference's secretariat. World War II was drawing to a close, and the assembled delegates were determined to put into practice their lofty ideals of a peaceful new world order. As the United Nations celebrates its golden anniversary, however, the world body seems to be under criticism as never before. The credibility it gained after the end of the Cold War and its role in the Persian Gulf conflict seem to have been largely squandered by debacles in Somalia, Angola and Bosnia, by its tardy response to carnage in Rwanda and by its inability so far to undertake serious internal reforms. From relatively lean beginnings with 1,500 staffers, the United Nations has burgeoned into a far-flung bureaucracy with more than 50,000 employees, plus thousands of consultants. In many areas, critics say, it has become a talk shop and paper mill plagued by waste, mismanagement, patronage and inertia. Although most Americans strongly support the United Nations, a ``hard core of opposition'' to the body appears to be growing, according to a new poll by the Times Mirror Center for the People and the Press. It showed that 67 percent of Americans hold a favorable attitude toward the United Nations, compared to 53 percent for Congress and 43 percent accorded the court system. However, the poll showed, 28 percent expressed a ``mostly'' or ``very'' unfavorable opinion of the United Nations, the highest of four such polls since 1990. In fact, after the demise of the ``red menace'' with the end of the Cold War, the organization seems to have become something of a lightning rod for extreme right-wing groups, which see it as part of a plot to form a global government. For the United Nations, the 50th birthday bash is an opportunity to trumpet a list of achievements. To celebrate the occasion, the organization is spending $15 million, which it says comes entirely from voluntary contributions. Over the years, U.N. officials point out, the world body and its agencies have performed dangerous peacekeeping missions, promoted decolonization, assisted refugees and disaster victims, helped eradicate smallpox, brought aid and services to impoverished countries and won five Nobel peace prizes. At the same time, the anniversary is focusing attention on the organization's shortcomings and on efforts to chart a new course for its future. Among the proposals in a recent study funded by the Ford Foundation, for example, are expanding the Security Council, curtailing veto powers, establishing a permanent U.N. armed force and creating an international taxation system to help finance the organization. As the United Nations has expanded, some of its agencies have lost their focus and become bogged down in tasks that duplicate efforts elsewhere in the system or serve little purpose but to employ bureaucrats, critics charge. Meanwhile, financing problems have grown acute, especially with the explosion in recent years of expenses for peacekeeping, a function that was not specifically spelled out in the original charter. The U.N. peacekeeping budget this year bulged to $3.5 billion, far exceeding the regular U.N. budget of $2.6 billion. Moreover, several countries, including the United States, owe U.N. dues totaling hundreds of millions of dollars. Unpaid peacekeeping dues for Bosnia alone come to $900 million. The Bosnian quagmire has underscored the limits of U.N. peacekeeping. Critics, notably in the U.S. Congress, have tended to blame U.N. bureaucrats for the mess, while U.N. officials say the operation exemplifies a penchant by member states for setting heavy new mandates without providing the resources to carry them out. ``Member countries should take advantage of the 50th anniversary to really look hard at the U.N. and to revise and strengthen it,'' said Catherine Gwin of the Washington-based Overseas Development Council. ``Increased demands are being made on an organization that has been neglected, misused and excessively politicized by its member governments for years, and it is showing the strain.'' As the United Nations has expanded, forming entities that deal with topics from outer space to seabeds, the original purpose often has been overlooked. That is, as the U.N. Charter's preamble states, ``to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.'' While scores of conflicts costing millions of lives have broken out since that signing 50 years ago, some of the organization's promoters say it deserves a share of credit for averting its founders' worst nightmare: World War III. Clearly, the atomic bombing of Hiroshima and Nagasaki and the subsequent nuclear standoff between the United States and the Soviet Union may have been the main deterrents, but the world body also played a role, U.N. supporters say. ``If we didn't have the United Nations, we would have had another world war,'' said Bernardino in an interview in her New York apartment, where she keeps an office filled with U.N. mementos. On her desk is a large silverframed, personally dedicated photograph of her role model, Eleanor Roosevelt, and in her drawer is an original signed copy of the U.N. Charter. At the time of the signing, U.S. public opinion held that there would be a third world war by the early 1970s, Stassen said. ``We believed we were going to stop future Hitlers from future acts of aggression,'' said Brian Urquhart, a Briton who joined the United Nations shortly after the conference and rose to become an undersecretary general. ``There was an enormous sense of confidence and optimism in the charter . . . led by the Untied States. This was predominantly a U.S. achievement.'' Indeed, the United Nations was principally the brainchild of President Franklin D. Roosevelt, who gave the organization its name and reached agreement on its formation with British Prime Minister Winston Churchill and Soviet leader Joseph Stalin. At the San Francisco conference, however, major problems developed over decolonization and the Soviets' insistence on a broad veto power over virtually all Security Council business, even the setting of agenda items and the discussion of disputes. Initially, the Soviets had also wanted 16 votes in the General Assembly, adding one for each of their 15 republics. They eventually settled for three after it was pointed out that by that logic, the United States ought to have 49 votes. According to Stassen, who served as Minnesota's youngest governor before joining the Navy during the war and who went on to seek the Republican nomination for president four times, his wife Esther played a key role in resolving the veto impasse. Some of the Soviet delegates' wives had told her that Stalin had set the veto position and none of their husbands dared ask the dictator to modify it, Stassen said. But if the Americans could present their arguments directly to Stalin, he might change his mind, the wives advised. Stassen said he reported this to President Truman, who had taken office upon Roosevelt's death. Truman dispatched Harry Hopkins, Roosevelt's closest adviser, to Moscow, and Stalin was persuaded to limit the veto to the Security Council's final resolutions. The lone American woman delegate, Virginia Gildersleeve, the dean of Barnard College, played a key role in drafting the U.N. Charter's preamble. Stassen recalls her exasperation after the drafting committee's first meeting, where language along the lines of ``the high contracting parties have assembled and entered this treaty'' was proposed. ``That's no way to start a charter for the future of the world,'' fumed Gildersleeve. ``It's got to say, `We the peoples of the United Nations . . .''' Her proposal was ridiculed by diplomats, who insisted that the charter could not be formed by ``peoples,'' but only by the representatives of governments. Eventually, however, she prevailed and eloquence overcame diplomatese. For Stassen, the defining moment came five days before the signing when Secretary of State Stettinius, the conference chairman, announced that there was nothing else on his agenda. He then asked all heads of delegations who were ready to sign the charter to stand. ``Chairs began to scrape . . . and suddenly the delegations realized that every one of the 50 chairmen was standing, and they broke out into applause for the first time in those sessions,'' Stassen recalled. Still, the seeds of the Cold War evidently had been planted. Pell, now 76 and the ranking Democrat on the Senate Foreign Relations Committee, recalls walking to a restaurant with a Soviet admiral when a big black car suddenly pulled over and picked up the Russian. ``He wasn't supposed to go to lunch with capitalists,'' Pell said. The senator also vividly remembers traveling to San Francisco by train from the East Coast with other young officers from Europe. As the train rolled past the seemingly endless grain fields and the unscathed cities and towns of America's heartland, the Europeans were stunned by the contrast with their own war-ravaged countries. ``Their eyes got wider and wider,'' Pell said, and they arrived in San Francisco with a sense of awe for the power and resources of the United States. Bernardino's most vivid memory was of the day the war in Europe ended while the conference was underway in may 1945. A Honduran delegate, who had just heard the news of the street, burst into her committee meeting and shouted, ``The war is over!'' and the room erupted in celebration, she said. For Betty Teslenko, then a 22-year-old stenographer at the conference, the imposing cast of characters was most impressive. One who deserved special credit as a mediator of many disputes was the Australian foreign minister, Herbert Evatt, whose broad accent prompted some good-natured ribbing, she recalled. One joke that made the rounds: What's the difference between a buffalo and a bison? Answer: a bison is what Evatt uses to wash his hands in the morning. According to Teslenko, Hiss was so efficient in organizing the conference that he became the choice of many delegates to be the United Nations' first secretary general. However, an unwritten rule that the organization's head should not come from one of the five permanent, veto-wielding members of the Security Council--the United States, Soviet Union, Britain, France and China--made that impossible. For Piedad Suro, then a young reporter from Ecuador, the conference was memorable chiefly for the difficulties of finding out what was going on in the closed sessions--and for a whirlwind courtship by the man who became her husband, Guillermo Suro, the State Department's chief of language services. Their son, Roberto Suro, is now a Washington Post editor. ``That was where we dated and he proposed,'' Suro said of the San Francisco conference. ``We became engaged the last week and were married in New York two months later.'' She denies, however, that her fiance ever gave her a scoop. As Truman arrived in San Francisco to witness the signing 50 years ago, an estimated 250,000 cheering people turned out to greet his mile-long motorcade, giving him what The Washington Post at the time described as ``the most tumultuous demonstration since he entered the White House.'' ``You have created a great instrument for peace,'' Truman said at the signing ceremony to a standing ovation, ``Oh, what a great day this can be in history.'' Today a common view among both U.N. supporters and critics seems to be that if the world body were to disappear, it would have to be quickly reinvented. ``While it hasn't been altogether a 100 percent success,'' said Sen. Pell, ``we're certainly far better off for having the United Nations exist than we would be without it.''

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I rise to report to the Senate the sad news of the death, in London, of the beloved American conductor Efrem Kurtz. He passed away at the great age of 95 after a career unequaled in the history of music in the 20th century, which he all but spawned. He was, of course, born in St. Petersburg in 1900, later moving to Berlin where he conducted the Berlin Philharmonic, thence to Stuttgart where he directed the philharmonic there from 1924 to 1933. As a Jew, he left what was by then Nazi Germany. He became a guest conductor of the New York Philharmonic, the NBC Symphony, the San Francisco and Chicago Symphonies, and for the longest while the Kansas City Symphony. He was a guest conductor of many orchestras in Europe, Japan, Australia, Canada, Israel, the Soviet Union, and much of the rest of the world. But the ``International Who's Who,'' 1994-95, identifies him as American conductor, the term I used earlier. He was awarded a gold disc by Columbia Records after the sale of three million of his recordings with the New York Philharmonic alone. He was loved and admired the world over, but most especially here in the United States. We shall miss him even as we have the treasure of his memory. Our great sympathy goes to his beloved wife, Mary. In order that the Record might show the range of his achievements, I ask that there be included at this point the entry of Efrem Kurtz from ``Current Biography,'' 1946, at which time he had just begun conducting the Kansas City Philharmonic. Finally, I would ask that a flag be flown over the Capitol in his honor and presented to his widow. The biography follows: [From Current Biography, 1946] Kurtz, Efrem Nov. 7, 1900--Conductor. Address: b. c/o Kansas City Philharmonic Orchestra, Kansas City, MO. One of the younger men who have been gradually demonstrating their competence in the orchestral field is Efrem Kurtz, permanent conductor of the Kansas City, Philharmonic Orchestra. After an impressive debut in Berlin in 1920 as a last-minute substitute, he became known as a conductor of symphony, and as musical director of the Ballet Russe de Monte Carlo, in Europe, South America, Australia, and the United States. One of four children, all musical, Efrem Kurtz was born in St. Petersburg Russia, on November 7, 1900. He is the son of Aron and Sima Kurtz. His father, a storekeeper, loved music but did not play an instrument. His mother, however, played the piano, and his grandfather had conducted a military band for Czar Nicholas I. Through his grandmother he is distantly related to Mendelssohn. Young Kurtz received most of this musical education at the conservatory in St. [[Page S 9470]] Petersburg, where he studied with Tcherepmine, Glazunov, and Vitol. In 1918 he was graduated from the Peter the Great High School there, and from 1918 to 1920 he was a student at the University of Riga. When the Kurtz family was later forced to flee Russia because of the Revolution, the young musician resumed his studies at the Stern Conservatory in Berlin, with special classes in conducting under Carl Schroder, and was graduated in 1922. His first big opportunity has come in 1920 when at the last moment he was asked to substitute for Arthur Nikisch as conductor of a recital by Isadora Duncan. A highly successful debut brought the novice an immediate guest contract for three performances with the Berlin Philharmonic. During the next several years Kurtz followed a heavy schedule which took him to forty-eight German cities and later to Italy and Poland. Then, in 1924 he was appointed chief conductor of the Stuttgart Philharmonic and musical director of the radio station servicing all southern Germany. In these posts Kurtz remained for nine years, until the rise of the Nazis to power. His activities, however, were not confined to Stuttgart. In 1927, for instance, Anna Pavlova, the dancer, heard his conducting and engaged him to conduct her ballet company at Covent Garden. The ten-day season was followed by a South American tour with the Pavlova Ballet, during which period Kurtz also conducted symphony concerts in Buenos Aries and Rio de Janeiro. The South American engagement led to an invitation to wield the baton in Australia, and the Australians were so enthusiastic that they extended to him three separate offers to remain. Kurtz, however, preferred to return to Europe. While permanent conductor at Stuttgart he also filled engagements in Holland, Belgium, and other European countries, and in 1931 and 1932 he conducted a series of Handel concerts at the Salzburg Festival. In 1933 Kurtz, a Jew, left Germany for France. There, in Paris, Colonel Wassily de Basil asked him whether he would aid in an emergency by conducting the Ballet Russe de Monte Carlo without rehearsal, and on the strength of his performance appointed Kurtz musical director of the Ballet Russe. This position the young conductor was also to occupy for nine years, touring extensively throughout Europe, South America, and the United States, and at intervals appearing as guest conductor in Melbourne and Sydney, Australia, with the New York Philharmonic-Symphony Orchestra at Lewisohn Stadium for several seasons, and with the Los Angeles Philharmonic, the NBC Symphony, the Cleveland Orchestra, the Detroit Symphony, the Philadelphia Orchestra, and others. His ballet work encompassed both the classical repertoire and new choreographies some composed to the music of the great symphonies. Although, unlike some balletomanes, he believes that the latter should be included in the repertoire, or ballets utilizing symphonic scores the Ballet Russe's former musical director was on one occasion reported to have remarked. ``Oh, I never see them. I keep my eyes closed. But it is not so cruel to use the music that way, because it is experimental. [Although] it is true that when I am conducting something like Brahms's Fourth I do not want to see a Mickey Mouse come out and cavort.'' Kurtz has, however, written seriously of ballet. ``The ballet as an art form,'' he said in 1941, ``offers to the conductor problems which are inherent in the combination of two heterogeneous elements: bodily movement and tone. The ballet requires absolute synchronization of music and physical movement, and in this synthesis lie the problems peculiar to the ballet. . . .I am a conductor and a musician first, but ever since the days when I was associated with Anna Pavlova I have been impressed by the manifold possibilities involved in the relationship of music and the dance. If the conductor is sensitive to the problems involved, he might very well come to the point where he doubts his ability to preserve the highest standards of musicianship while, at the same time, maintaining interpretation, synchronizing the accompaniment to the movements of the dancers, and fully expanding the choreographer's ideas. . . .When one conducts classical ballet, he must follow the dancer in finest detail. He must be thoroughly conversant with the steps of the dancers; more, he must have developed an intuitive feeling for equilibrium. . . .All the problems involved in classical ballet are pertinent to the modern with an additional important element. As contrasted to the classical ballet which is merely the projection of a mood, the modern is conceived for the execution of a story. . . .Composer and choreographer have produced the modern ballet in closest collaboration. Tempo becomes a matter of a work's content, of a dance's very essence. The dancer becomes the instrument of the choreographer who, in turn, is a much the servant of the composer's ideas as the composer is willing to integrate his composition with the potentialities of pantomiming. . . . Music originally written as ballet music is without doubt better than music arranged for ballet. The possibilities for young composers in the field of ballet music are tremendous.'' Kurtz has been called ``the finest of ballet conductors,'' but although he enjoyed his work with the Ballet Russe, he readily admitted his preference for symphonic conducting. In the autumn of 1943, therefore, he accepted an invitation to become conductor of the Kansas City Philharmonic Orchestra, to succeed Karl Krueger who had left for Detroit. The next season Kurtz was re-engaged for another two years. His first thought on taking over in Kansas City, he has said, was how to bring his music to the masses, how to make them come to understand and like it; and despite opposition he began to offer ``pops'' concerts featuring good music at very low prices, annual free concerts, ``name'' soloists, and special concerts for school children in an endeavor to attract audiences. ``The most important thing is to get them in,'' he said, ``and then sell myself and the orchestra.'' The response proved that he was right, for by the end of his second season the orchestra was out of the red for the first time in many years and seemed well on its way to becoming self-sufficient. He moves Kansas City audiences, it is said, because ``he knows how to inject his dramatic flare into programming, at the same time maintaining the highest musical standards.'' Both in Kansas City and during his guest appearances it is his habit to include modern compositions and the works of the Russian masters on his programs, and he has won commendation for his conducting of these works as well as of the standard repertoire. (Igor Stravinsky \40\ Kurtz has known for many years; he has seen ``many of the composer's works come into being and has been their consistent advocate.'') He is likewise eager to foster new instrumental and vocal talent, in this regard being a sponsor of Carol Brice, contralto, and William Kapell, pianist, both of whom have been especially well received by the critics; and for 1947 he planned engagements for eight young American solosists during the Kansas City winter ``Pops'' season. In 1944 Kurtz's Kansas City Philharmonic was selected as the first orchestra to be presented on NBC's new radio program Orchestras of the Nation, with reappearances scheduled for the following seasons. In addition to his regular tasks Kurtz has led a specially assembled orchestra for several Warner Brothers' shorts of the Ballet Russe and has conducted the London Philharmonic Orchestra in the scores for two motion pictures starring Elisabeth Bergner. A ``tall, gaunt Russian,'' Kurtz was married in 1933 to Katherine Jaffe, whom he describes ad an authority on cooking, ceramics, and painting. Kurtz himself makes a hobby of art, specializing in water colors and caricature. So well known has his interest in art work by children become that, it is pointed out, mothers now send him the paintings of their talented offspring for criticism. In addition, he collects letters from famous contemporaries, possessing many from Einstein \41\, Hindemith \41\, Prokofiev \41\ and others; and he has built up an unusual collection of stamped letters which have some interesting historical significance. Of one of his constant companions, his French poodle Dandy, the conductor says, ``You can talk to him and he understands, but he doesn't answer. That is so good sometimes.''

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, S. 240, the Securities Litigation Reform Act, is intended to deter frivolous securities litigation while protecting the rights of investors to bring legitimate lawsuits. The sponsors of this legislation, arguing that opportunistic attorneys often file these lawsuits after precipitous reductions in stock prices, attempted to strike a delicate balance between these two competing interests. Unfortunately, the bill fails to strike that balance. The bill would make it too difficult--if not impossible--for small investors to recover losses resulting from securities fraud. S. 240 would establish cumbersome case-filing procedures designed to discourage litigation; shield from liability those who knowingly aid or abet fraudulent schemes; and limit too strictly the liability of those who make misleading or false forward-looking projections of company performance. While these provisions will deter frivolous lawsuits, they will also discourage meritorious ones. If the amendments offered by Senators Sarbanes, Bryan, and Boxer had been accepted by the Senate, I perhaps could have supported this bill. As it stands, however, this legislation goes too far in protecting corporations and stockbrokers at the expense of small investors. I cannot support it.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, yesterday's newspapers reported that former Chief Justice Warren E. Burger died on Sunday here in Washington. He was 87 years old. Twenty-six years ago, President Nixon nominated Warren Burger to be Chief Justice with the hope of reversing the activism of the Warren Court. Yet history was not entirely cooperative: Chief Justice Burger presided over a 17-year period in which many of the era's most profound controversies had to be decided by the High Court. A number of those issues, including school busing to achieve desegregation: Swann versus Charlotte-Mecklenburg Board of Education, 1971; the separation of church and state as applicable to government aid to parochial schools, Lemon versus Kurtzman, 1971; and Executive privilege, United States versus Nixon, 1974, were decided in opinions written by Chief Justice Burger himself. The Chief was somehow able to take all of this and more in stride. He relished his additional statutory duties as chancellor of the Board of Regents of the Smithsonian Institution, and as chairman of the board of trustees of the National Gallery of Art. Although my service as a regent of the Smithsonian Institution began just after Chief Justice Burger's tenure as chancellor ended in 1986, I did have the exhilarating honor, in September of 1985, to be presented the Joseph Henry Award by then-Chancellor Burger on one memorable evening at the Hirshhorn Museum and Sculpture Garden. Following his retirement from the Court in 1986, Chief Justice Burger devoted himself on a full-time basis to his work as Chairman of the Commission on the Bicentennial of the U.S. Constitution, to which President Reagan had appointed him the previous year. Characteristically, the Chief threw himself into that effort with the great energy and enthusiasm he applied to all of his pursuits. I recall corresponding with him about the Commission's progress and his many ideas for increasing public appreciation for the Constitution in its bicentennial year. Among its good works, the Commission produced the excellent pocket-sized Constitutions that are available in Senate offices. I have taken to carrying a copy with me, and I know the distinguished Senator from West Virginia has as well. In his Foreword to the pocket Constitution, Chief Justice Burger wrote that our constitutional system: [D]oes not always provide tidy results; it depends on a clash of views in debate and on bargain and compromise. For 200 years this Constitution's ordered liberty has unleashed the energies and talents of people to create a good life. Warren Burger created just such a good life through his own indomitable energies and talents. He came from humble roots in St. Paul, MN, attended college and law school at night, and ultimately rose to become Chief Justice of the United States. Chief Justice Burger was a distinguished jurist and a patriot in the finest sense of the word. He was also a wonderful husband and father and, although it is not much in fashion to say so today, he was a gentleman. He was my friend for more than a quarter century, and he will be greatly missed. Mr. President, I ask that the obituary by Linda Greenhouse from the New York Times of June 26th be printed in the Record. The obituary follows: [From the New York Times, June 26, 1995] Warren E. Burger Is Dead at 87; Was Chief Justice for 17 Years (By Linda Greenhouse) Washington, June 25--Warren E. Burger, who retired in 1986 after 17 years as the 15th Chief Justice of the United States, died here today at age 87. The cause was congestive heart failure, a spokeswoman for the Supreme Court said. An energetic court administrator, Chief Justice Burger was in some respects a transitional figure despite his long tenure. He presided over a Court that, while it grew steadily more conservative with subsequent appointments, nonetheless remained strongly influenced by the legacy of his liberal predecessor, Chief Justice Earl Warren. The constitutional right to abortion and the validity of busing as a remedy for school segregation were both established during Chief Justice Burger's tenure, and with his support. The country knew Chief Justice Burger as a symbol before it knew much about him as a man or a judge. He was President Richard M. Nixon's first Supreme Court nominee, and Mr. Nixon had campaigned on a pledge to find ``strict constructionists'' and ``practitioners of judicial restraint'' who would turn back the activist tide that the Court had built under Chief Justice Warren, its leader since 1953. The nomination on May 21, 1969, immediately made Mr. Burger, a white-haired, 61-year-old Federal appeals court judge, lightening rod for those who welcomed as well as [[Page S 9190]] those who feared the end of an era of judicial activism. It was a central contradiction of Mr. Burger's tenure as Chief Justice that long after he became one of the most visible and, in many ways, innovative Chief Justices in history he remained, for many people, the symbol of retrenchment that Mr. Nixon had presented to the public on nominating him. In fact, the Supreme Court in the Burger years was in its way as activist as the Court that preceded it, creating new constitutional doctrine in areas like the right to privacy, due process and sexual equality that the Warren Court had only hinted at. ``All in all,'' one Supreme Court scholar, A. E. Dick Howard, wrote in the Wilson Quarterly in 1981, ``the Court is today more of a center for the resolution of social issues than it has ever been before.'' While there were some substantial changes of emphasis, the Burger Court--a label liberals tended to apply like an epithet--overruled no major decisions from the Warren era. It was a further incongruity that despite Chief Justice Burger's high visibility and the evident relish with which he used his office to expound his views on everything from legal education to prison management, scholars and Supreme Court commentators continued to question the degree to which he actually led the institution over which he so energetically presided. His important opinions for the Court included the decision that validated busing as a tool for school desegregation, the one that struck down the ``legislative veto'' used by Congress for 50 years to block executive branch actions, and the one that spurred President Nixon's resignation in 1974 by forcing him to turn over White House tape recordings for use in the Watergate investigations. Yet Chief Justice Burger was just as often in dissent on major decisions. In that, he differed from Chief Justice Warren, who voted with the majority in nearly all important cases. Those seeking to identify the sources of intellectual leadership on the Court usually pointed to William H. Rehnquist, another Nixon appointee to whom Chief Justice Burger assigned many important opinions, and to William J. Brennan Jr., the Court's most senior and, with Thurgood Marshall, most liberal member. As the senior Associate Justice, Justice Brennan had the right to assign the opinion in any case in which he was in the majority and the Chief Justice was in dissent, and he often exercised that prerogative by assigning major opinions to himself, particularly in the area of individual rights. As the years passed, Chief Justice Burger seemed to assign himself the opinions in relatively straightforward and uncontroversial cases, avoiding those in which the Court was deeply split and in which it would have required considerable effort to marshal or hold a fragile majority. As a result, his personal imprint on the Court's jurisprudence was not always readily identifiable. an innovator in administration But his imprint was distinct in the area to which he gave his most sustained attention, judicial administration. Mr. Burger liked to say that he took his title seriously. He was Chief Justice of the United States, not just of the Supreme Court, and he took as his mandate the stewardship of the entire judicial system, state as well as Federal. An array of institutions were created under his aegis, including the National Center for State Courts, the Institute for Court Management and the National Institute of Corrections. The common purpose of those organizations was to improve the education and training of participants in nearly all phases of the judicial process, whether judges, court clerks or prison guards. The Chief Justice turned the small Federal Judicial Center, for which he served by statute as chairman of the board, into a major center for research and publishing about the courts. He believed that judges could be helped to be more efficient if professional management techniques were imported to the courts, from clerks' offices to judges' chambers. The Institute for Court Management set up a six-month program for training court managers and administrators. The Supreme Court itself became one of the first fully computerized courts in the country; in 1981, the Justices all received computer terminals on which to compose their opinions. The Chief Justice campaigned tirelessly for better pay for judges, better education for lawyers and help for the Court's evergrowing caseload. From his earliest years in office, he warned that the Federal courts and the Supreme Court in particular were becoming dangerously overworked. In 1983, he asked Congress to create an appellate panel that could relieve some of the Supreme Court's caseload by resolving conflicting opinions among the Federal appeals courts. Many Admirers, But Detractors as Well Judges and others interested in these long-ignored administrative issues responded with gratitude. One of the Chief Justice's warmest admirers on the Federal bench was Frank M. Johnson Jr., a Federal appeals court judge from Alabama who won praise from civil rights advocates for his orders on prison issues and other rulings. ``Warren Burger has redefined the nature of his office,'' Judge Johnson wrote in the early 1980's. ``He has concentrated his energy not simply on exploring the subtleties of constitutional doctrine but on reforming the mechanics of American justice. More than any of his 14 predecessors, he has invested the prestige of the Chief Justiceship in efforts to make the American judicial system function more efficiently. He has used his position not as an excuse to withdraw from public affairs but as an opportunity to furnish public leadership.'' But the priority that Chief Justice Burger assigned to administration also had its detractors, who complained that he trivialized his office by emphasizing the mechanics of justice at the expense of its substance. Occasionally, too, his enthusiastic lobbying was seen as overbearing by those at whom it was directed. In 1978, for example, he became deeply involved in the effort in Congress to overhaul the bankruptcy system. One Democratic Senator, Dennis DeConcini of Arizona, whose subcommittee had jurisdiction over the bill, complained publicly that a ``very, very irate and rude'' Chief Justice had telephoned him to object to a legislative development and ``not only lobbied but pressured and attempted to be intimidating.'' The Chief Justice could also be rather intimidating from the bench, particularly when a relatively inexperienced lawyer was arguing a position with which Mr. Burger disagreed. While Chief Justice Warren's favorite question from the bench was, ``Yes, but was it fair?'' Chief Justice Burger often asked: ``Yes, but why is this case in the courts? Isn't this a matter for the Legislature to address?'' working to limit the judiciary's scope Chief Justice Burger believed in a limited role for the courts and reserved some of his sharpest criticism for those who looked to them to resolve social and political problems that, in his view, were not the province of judges. ``If we get the notion that courts can cure all injustices, we're barking up the wrong tree,'' he liked to say. A speech he gave while he was still a judge on the Court of Appeals for the District of Columbia provided a useful summary of the view he held throughout his career: ``That courts encounter some problems for which they can supply no solution is not invariably an occasion for regret or concern. This is an essential limitation in a system of divided power.'' Some of the more important decisions while he was Chief Justice were those that limited litigants' access to Federal court by using the doctrines of standing, mootness and deference to state courts. He seemed to regard suits for small monetary stakes as a waste of judges' time, and many of his speeches complained about the disproportionate cost to the system of trying the lawsuits brought by prisoners or consumers over modest losses of money or property. His questioning of one lawyer, who argued in 1982 on behalf of 168,000 consumers, each with a claim for $7.98 against the Gillette Company, was the talk of the Court for weeks, ``What is the economic justification for this kind of lawsuit in the Federal courts under any circumstances?'' the Chief Justice demanded. ``We are in state court, judge, in this case,'' the lawyer, Robert S. Atkins, replied. ``In state or Federal court?'' the Chief Justice persisted. ``The problem,'' Mr. Atkins said, ``is that if you cheat people a little bit but do it a lot, you can go free----'' The Chief Justice interrupted to interrogate him about the proportion of the recovery that would go for legal fees. inviting attention, some of the time Chief Justice Burger's effort to police the moral character of lawyers who sought to become eligible to argue before the Court rankled some of the other Justices and in 1982 provided a rare public glimpse of internal disagreements over the Chief Justice's administrative approach. He singled out several applicants by name and accused them of seeking membership in the Supreme Court bar to ``launder'' tarnished credentials. But he failed to persuade a majority of the Court to block the admissions and provoked one Justice, John Paul Stevens, to write that the Court should grant applicants with questionable credentials a ``fair hearing'' before publicly labeling them as unworthy. There were contradictory strains in Chief Justice Burger's attitude toward the public, including the press. At times he seemed to welcome and even invite public attention. He took pride in having made the Supreme Court a more attractive place for tourists to visit, transforming the cold marble ground floor into an area for historical exhibits. Yet he alone of all the Justice refused, when announcing one of his opinion from the bench, to provide tourists and lawyers in the audience with a brief oral description of the case and the decision. The other Justices either read aloud from a memorandum explaining the case or gave a more casual oral account. When the Chief Justice's turn came, he would simply announce that in a case with a particular name, the judgement of the lower court was affirmed, or reversed. When asked why he refused to join the others in explaining his opinions, he once said, ``It's a waste of time.'' He was adamant about preserving the secrecy of the Court's internal operations, [[Page S 9191]] even to the extent of refusing to make public the names of his four law clerks. A law firm recruiter or other member of the public who called the Court's public information office seeking a list of the current law clerks would receive the names of all the clerks except the Chief Justice's. He mailed copies of his speeches to hundreds of journalists around the country and would telephone particular columnists to make sure his message was clear. defining the limits of speech and press Occasionally, usually in connection with his annual ``State of the Judiciary'' address to the American Bar Association, a tradition that he inaugurated, he would invite journalists for informal ``deep background'' briefings, sessions that were often relaxed and informative. But he seemed to hold much of the press corps in low repute. Asked by a lawyer at a Smithsonian Institution symposium what he thought of the reporters who covered the Court, he replied, as he often did: ``I admire those who do a good job, and I have sympathy for the rest, who are in the majority.'' His special scorn was reserved for television, which he regarded as an intrusive annoyance. He once knocked a television camera out of the hand of a network cameraman who followed him into an elevator. He vowed that he would never allow oral arguments at the Supreme Court to be televised. Yet he wrote the opinion for the Court in the 1981 case Chandler v. Florida, holding that a state could permit a criminal trial to be televised, even over the defendant's objection, without depriving the defendant of the constitutional right to a fair trial. Chief Justice Burger wrote several of the Court's most important opinions interpreting the free speech and free press guarantees of the First Amendment. His opinion in a 1976 case, Nebraska Press v. Stuart, effectively prohibited judges from ordering the press not to publish information in its possession about the crime, a confession or the like. The opinion said that judges could take less drastic steps to protect criminal defendants from negative pretrial publicity, like sequestering the jury or changing the site of the trial. A 1973 opinion by the Chief Justice ended roughly 15 years of turmoil over the legal definition of obscenity by changing the focus to local communities, rather than the entire country. That opinion, in Miller v. California, said obscene materials were ``works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way and which, taken as a whole, do not have serious literary, artistic, political or scientific value.'' The Chief Justice added that it was up to local juries applying ``contemporary community standards'' to decide whether a particular work fit that definition. ``It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City,'' he wrote. ``People in different states vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.'' religion, rights and veto power Chief Justice Burger was also one of the Court's most prolific writers on another aspect of the First Amendment, the clause prohibiting an establishment of an official national religion. In a 1971 opinion, Lemon v. Kurtzman, he set forth the test for deciding whether a given law or government program that conferred some benefit on religion nonetheless passed muster under the First Amendment. ``First,'' he wrote, ``the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.'' This ``three-part test,'' as it came to be known through later refinements and elaborations, defined the Court's approach to the establishment clause in a variety of contexts. The 1983 decision that struck down the legislative veto, Immigration Service v. Chadna, altered the balance of power between the executive and legislative branches. It invalidated a procedure, which Congress had incorporated into some 200 laws, permitting one or both Houses to block executive branch action. The procedure, Chief Justice Burger wrote, was not within Congress' constitutional authority because it did not follow the rules the Constitution set out for ``legislation'': passage by both Houses and presentment to the President for his signature. The Chadna opinion in many ways summarized the Chief Justice's view of American Government. He wrote, ``With all the obvious flaws of delay, untidiness and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.'' Chief Justice Burger wrote relatively few of the Court's criminal law decisions, and some of the more important decisions on the rights of criminal suspects found him in bitter dissent. For example, in the 1977 case Brewer v. Williams the Court ruled, in a 5-to-4 opinion by Justice Potter Stewart, that the police had violated a murder suspect's constitutional right to counsel. The police officers, knowing that the suspect was deeply religious, delivered what came to be called the Christian burial speech, musing aloud on the wish of the victim's parents to give their daughter a Christian burial. The suspect, who had previously said he would talk only after seeing a lawyer, then led the officers to the victim's body. The majority's decision overturning the murder conviction was ``bizarre,'' the Chief Justice wrote in a dissent that was a stinging attack on the so-called exclusionary rule barring the use at trial of illegally seized evidence. ``The result reached by the Court in this case ought to be intolerable in any society which purports to call itself an organized society,'' he said. ``Failure to have counsel in a pretrial setting should not lead to the `knee-jerk' suppression of relevant and reliable evidence.'' a conservative on crime issues Although Chief Justice Burger's views on criminal law did not always garner a majority on the Supreme Court, those views had probably been more responsible for his being nominated to the High Court than any other factor. He dissented from the Court's 1972 decision that invalidated all death penalty laws then in force. After the Court permitted executions to resume four years later, the Chief Justice grew increasingly impatient with the legal obstacles that lawyers and judges continued to place in the way of executions. When the Court refused to block the execution of a murderer whose appeals had lasted 10 years, Chief Justice Burger wrote a concurring opinion excoriating lawyers for condemned inmates. He said the lawyers sought to turn the administration of justice into a ``sporting contest.'' In 13 years on the United States Court of Appeals for the District of Columbia Circuit, he was known as a conservative, law-and-order judge. He enhanced that reputation with speeches and articles. A speech in 1967 at Ripon College in Wisconsin came to Richard Nixon's attention after it was reprinted in U.S. News & World Report. The White House distributed copies of the speech at the time of Judge Burger's nomination, and the Supreme Court press office handed it out for years when asked for information about his views. In the speech, he compared the American system of justice with the systems of Norway, Sweden, Denmark and the Netherlands. ``I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity,'' he said. Yet, he continued, those countries ``do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify.'' ``They go swiftly, efficiently and directly to the question of whether the accused is guilty,'' he added. ``No nation on earth,'' he said, ``goes to such lengths or takes such pains to provide safeguards as we do, once an accused person is called before the bar of justice and until his case is completed.'' a modest start in minnesota Chief Justice Burger's speechmaking style changed little in subsequent years. He often returned to the theme and imagery of the Ripon speech and often used the Scandinavian countries, which he visited frequently, as benchmarks against which to compare the American system. Warren Earl Burger was born Sept. 17, 1907, in St. Paul. His parents, of Swiss-German descent, were Charles Joseph Burger and the former Katharine Schnittger. His paternal grandfather, Joseph Burger, emigrated from Switzerland and joined the Union Army at the start of the Civil War, when he was 14. He was severely wounded in combat and received both a battlefield commission and the Medal of Honor. Warren Burger was one of seven children. The family lived on a 20-acre truck farm on the outskirts of St. Paul. In addition to farming, his father sold weighing scales; the family's financial circumstances were modest. At John A. Johnson High School, from which Warren Burger graduated in 1925, he edited the school newspaper, was president of the student council and earned letters in hockey, football, track and swimming. He earned extra money by selling articles on high school sports and other news to the St. Paul newspapers. The rest of his formal education took place in night school while he worked days selling insurance for the Mutual Life Insurance Company of New York. He attended the night school division of the University of Minnesota for two years, then began night law classes at the St. Paul College of Law, now known as the William Mitchell College of Law. He received his degree with high honors in 1931. He joined the faculty of the law school and taught for 12 years while practicing law with the firm of Boyesen, Otis & Faricy. He remained with the firm, one of the oldest in the state, for 22 years; after he became a partner, the firm was known as Faricy, Burger, Moore & Costello. He handled probate, trial and appellate cases, arguing more than a dozen before the United States Supreme Court and many more in the Minnesota Supreme Court. He married Elvera Stromberg in 1933. They had a son, Wade Allen, and a daughter, Margaret Elizabeth. [[Page S 9192]] As a young lawyer, Mr. Burger became active in community affairs. He was president of the Junior Chamber of Commerce and the first president of the St. Paul Council on Human Relations. That group, which he helped to organize, sponsored training programs for the police to improve relations with minority groups. For many years, he was a member of the Governor's Interracial Commission. He also became involved in state politics, working on Harold E. Stassen's successful campaign for governor. He went to the 1948 Republican National Convention to help Governor Stassen's unsuccessful bid for the Presidential nomination. making the move to washington In 1952, he was at the Republican convention again, still a Stassen supporter. But he helped Dwight D. Eisenhower's forces win a crucial credentials fight against Senator Robert A. Taft of Ohio. On the final day, with General Eisenhower lacking nine votes for the nomination, Mr. Burger helped swing the Minnesota delegation and gave Eisenhower the votes that put him over the top. Cheers broke out on the convention floor as an organ played the University of Minnesota fight song. His reward was a job in Washington, as Assistant Attorney General in charge of the Civil Division of the Justice Department. He supervised all the Federal Government's civil and international litigation. He told a young Justice Department lawyer years later that he would have been content to continue running the Civil Division for the rest of his career. One of his assignments was somewhat unusual for the Civil Division chief. He agreed to argue a case in the Supreme Court, usually the task of the Solicitor General's Office. The case involved a Yale University professor of medicine, John F. Peters, who had been discharged on loyalty grounds from his job as a part-time Federal health consultant. The Solicitor General, Somin E. Soboloff, disagreed with the Government's position that the action by the Civil Service Commission's Loyalty Review Board was valid and refused to sign the brief or argue the case. Mr. Burger argued on behalf of the board and lost. Among the lawyers who filed briefs on the professor's behalf were two who would precede Mr. Burger on the Supreme Court, Abe Fortas and Arthur J. Goldberg. After two years, Mr. Burger resigned from the Justice Department and was preparing to return to private practice in St. Paul when Judge Harold Stephens of the United States Court of Appeals for the District of Columbia Circuit died. President Eisenhower nominated him for the vacancy, and he joined the court in 1956. His elevation to the Supreme Court 13 years later was made possible by President Lyndon B. Johnson's failure to persuade the Senate to accept Abe Fortas as Chief Justice. a beneficiary of '68 election On June 13, 1968, Earl Warren had announced his intention to resign after 15 years as Chief Justice. President Johnson nominated Mr. Fortas, then an Associate Justice, as Chief Justice. But the nomination became a victim of the 1968 Presidential election campaign and was withdrawn on Oct. 2, the fourth day of a Senate filibuster that followed acrimonious confirmation hearings. Chief Justice Warren agreed to delay his retirement, and it was clear that whoever won the Presidential election would choose the next Chief Justice. Justice Fortas remained on the Court until May 1969, when he resigned after the disclosure that he had accepted a $20,000 fee from a foundation controlled by Louis E. Wolfson, a friend and former client who was under Federal investigation for violating securities laws. On May 21, a week after the Fortas resignation, President Nixon nominated Warren Burger to be Chief Justice. The nomination went smoothly in the Senate, and he was sworn in as Chief Justice on June 23, 1969. The Chief Justice and his wife lived in a renovated pre- Civil War farmhouse on several acres in McLean, Va. According to the annual financial disclosure statements required of all Federal judges, he had assets of more than $1 million. His largest investment was the common stock of the Minnesota Mining and Manufacturing Company. He was a gardener and a serious wine enthusiast who took pride in his wine cellar and occasionally sponsored wine- tasting dinners at the Supreme Court. By statute, the Chief Justice is Chancellor of the Smithsonian Institution and chairman of the board of trustees of the National Gallery of Art, duties that, as an art and history buff, he enjoyed. He visited antiques stores to look for good pieces for the Court and took an active role in the Supreme Court Historical Society. He and his wife led an active social life in Washington and spent part of nearly every summer in Europe, usually in connection with a conference or other official appearance. Chief Justice Burger cut an imposing figure, and it was often said that he looked like Hollywood's image of a Chief Justice. He was nearly 6 feet tall, stocky but not heavy, with regular features, a square jaw and silvery hair. Proper appearance was important to him. He once sent a note to the Solicitor General's Office complaining that a Deputy Solicitor General had worn a vest the wrong shade of gray with the formal morning attire required of Government lawyers who argue before the Court. In 1976, he appeared at a Bicentennial commemoration in a billowing robe with scarlet trim, a reproduction of the robe worn by the first Chief Justice, John Jay. He later put the robe on display in the Court's exhibit area. A book by Chief Justice Burger, ``It Is So Ordered'' (William Morrow), was published earlier this year. It is an account of 14 cases that, in his judgment, helped shaped the Constitution. Mr. Burger's wife died in May 1994. He is survived by his son, of Arlington, Va.; his daughter, of Washington, and two grandchildren. Funeral arrangements were incomplete today.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, last night the Senate passed the National Highway System legislation, and in so doing determined the future of our Nation's intermodal infrastructure. New York has an important role in an efficient national intermodal system. A month ago I rose before the Senate to remark how pleased I was that the conference report for the Department of Defense supplemental appropriations bill included an appropriation of $21.5 million for capital improvements associated with safety-related emergency repairs to Pennsylvania Station in New York City. The station is the busiest intermodal station in the Nation, with almost 40 percent of Amtrak's passengers nationwide passing through every day. It is the linchpin for intermodal travel in the United States. Unfortunately, it is also the most decrepit of the Northeast corridor stations, others of which, such as Washington DC's own Union Station, have been renovated with Federal grants. Today, Pennsylvania Station handles almost 500,000 riders daily in a subterranean complex that demands improvement. According to the New York City Fire Commissioner, there have been nine major fires at the station since 1987. Luckily, these fires have occurred at off-hours. As it stands, the station could not cope with an emergency when it is crowded with the 42,000 souls who pass through every workday between 8 and 9 a.m. In addition, structural steel in the station has shown its age and needs immediate repair. And these are just the most pressing needs. There is also a need to add capacity as ridership grows. The station, designed in 1963, will not be able to accommodate the growing volume of people. It is projected that by the year 2005, New Jersey Transit ridership will increase 44 percent, Amtrak, 26 percent, and the Long Island Railroad, 9 percent. If we do not act now, pedestrian gridlock will shut us down in 10 years. Happily, there is a redevelopment plan to change things for the better, a $315 million project to renovate the existing station in the only way possible: across the street into a portion of the neighboring historic James A. Farley Post Office. The plan will nearly double the access to the station's platforms, which lie far below street level beneath both buildings. Moreover, there is a financing plan in place that will accomplish this with $100 million from the Federal Government--$31.5 million has already been appropriated--$100 million from the State and city, and $115 million from a combination of historic tax credits, bonds supported by revenue from the project's retail component, and building shell improvements by the Postal Service, owner of the James A. Farley Building. Governor Pataki of New York and Mayor Giuliani of New York City strongly support the project and have made available funding in their budgets in accordance with a memorandum of agreement signed in August 1994. Now, $26\1/2\ million can be used immediately for pressing safety repairs at the existing station, in the first step of the overall redevelopment effort. These are the first Federal funds into the project that will actually go toward construction, and they will count towards the Federal share of the $315 million project to transform the station into a complex capable of safely handling the crowds that have made Pennsylvania Station the Nation's busiest intermodal facility. The authorization approved in this bill for the remaining Federal share of the project will assure the viability of Pennsylvania Station into the 21st century.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, on Saturday last, in Arezzo, Italy, Claire Sterling died, age 76. So passed, as her great friend Meg Greenfield put it, ``one of the great journalists of all time.'' She was born in Queens, took her degree from Brooklyn College, and went from there to the Columbia graduate school of journalism. In time she joined the staff of the Reporter where she was a colleague of Ms. Greenfield for some 17 years, albeit from her post in Rome. In her youth, as a student involved with student politics at Brooklyn College, and later as a union organizer, she came in contact with the Stalinist left which gave her a perspective, almost a second sense concerning ideological politics that ever thereafter informed her accounts of world politics at the highest, and yes, lowest, even criminal and clandestine levels. What liberals did not wish to know-- many liberals, that is--and conservatives could not grasp, she instantly understood, and sublimely construed. There is a Hebrew saying, ha mevin yavin: those who understand, understand. Claire Sterling understood and not just at metaphysical heights. Who else would have persuaded the rebels opposing French rule in Algeria to let her know which trains she could take back to the coast which were not scheduled to be blown up. Meg Greenfield allows as how ``it is hard to think of her as dead, for she was so alive.'' And so we will remember her, even as we offer our condolences to her beloved husband Tom, and her son Luke, daughter Abigail, and her sister Ethel. Mr. President, I ask unanimous consent that the full text of the articles from the New York Times and the Washington Post be printed in the Record.

Mr. MOYNIHAN

Mr. MOYNIHAN. Yes, the 30th, the end of this fiscal year, to authorize this system. And this legislation does that. It does it in a timely manner, as anticipated. We have funds available. And we have very real needs. We are not building new highways. We are maintaining and improving their capacity. The intermodal system was very explicit on the idea that you do not want to add to the mileage of the system, you want to make it more efficient. We made very clear our view that a free good-- and these are freeways--will be overconsumed. We made it clear that we were not in the least alarmed by the idea of pricing this good, as we do in points of congestion like tunnels and bridges. We began the legislation--the conference report and the legislation itself--with a declaration of policy for the Intermodal Surface Transportation Efficiency Act. It said: The National Intermodal Transportation System must be operated and maintained with insistent attention to the concepts of innovation, competition, energy efficiency, productivity, growth, and accountability. Practices that resulted in the lengthy and overly-costly construction of the Interstate and Defense Highway System must be confronted and ceased. We went so far, Mr. President, as to require that this table of principles be printed up and provided to every member of the Department of Transportation--and they were. In this system, in the present bill, we find continued reference to those principles. We find ourselves completing the 4-year work that we were asked to do. Note, ``intermodal.'' It is one of the ironies of President, then captain, Eisenhower's journey across the country that to assume the railroads had been destroyed and you find you could not get from here to there in any effective way without them led to an interstate highway system which pretty soon had destroyed the railroads. And not necessarily a good idea. We, of course, made it clear that by intermodal we mean not just vehicle transportation. We talk about rail. We talk about air links. We talk about sea links. In this particular legislation there is a specific provision, ``Sec. 126, Intermodal Facility In New York. [The] engineering, design, and construction activities to permit the James A. Farley Post Office in New York, New York, to be used as an intermodal transportation facility and commercial center.''

Mr. MOYNIHAN

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

Mr. MOYNIHAN

Mr. MOYNIHAN. The second-most populated nation in the world, and in the 20 years since, they have never yet detonated a second--not because they are members of the Test Ban Treaty, but because they feel there is an international constraint in place and it would be in some way inappropriate. Not that they could not or that they would not like to. They have not done it. Would the Senator consider whether or not our now presumed testing, and French testing in the Pacific, would not put pressure on regimes such as that of India, or regimes which are clearly capable of nuclear devices, such as Pakistan? Is that what we want started?

Mr. MOYNIHAN. Sir, the distinguished senior Senator from Arkansas will recall that in 1974, the Republic of India detonated a nuclear device.

Mr. MOYNIHAN. Mr. President, before the Senator yields the floor, would he yield to me for a question?

Mr. MOYNIHAN

Mr. MOYNIHAN. Bosnia is a member of the United Nations. It has been invaded by another country and in support of an internal dispute. The Yugoslavian Army, out of Belgrade, is clearly involved. We now learn that it was computers in Belgrade that brought down Captain O'Grady's F-16. Under the United Nations Charter it is elemental that Bosnia has the right of self-defense. And for the United Nations to impose an arms embargo on a member state which has been invaded is to put the charter in jeopardy. Would the Senator not agree?

Mr. MOYNIHAN. Will the Senator yield for a question?

Mr. MOYNIHAN. And then the United Nations might be able to help.

Mr. MOYNIHAN. It was, in a certain sense, a voluntary conversion.

Mr. MOYNIHAN. Will the Senator yield for a question? Sharing his great regard for Tom Friedman's comments in this respect, I think the Bosnians were of a religious group within the Catholic Church which was being excommunicated, and they chose to affiliate with Islam in that setting.

Mr. MOYNIHAN

Mr. MOYNIHAN. Mr. President, I move to reconsider the vote.

Mr. MOYNIHAN. Mr. President, I urge adoption of the amendment.

Mr. MOYNIHAN. Mr. President, this is a clarifying amendment. It establishes that high-priority corridor 18 is in fact included in the National Highway System. This had been a presumptive fact, but circumstances have arisen which make it prudent and in the interest of the State of Arkansas that this be so stated in statute. I believe this amendment will be agreed to.

Mr. MOYNIHAN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. MOYNIHAN. Mr. President, I send an amendment to the desk on behalf of Mr. Bumpers and ask for its immediate consideration.