Flag amendment may lack votes to pass Senate

Thursday, June 23, 2005

WASHINGTON — A day after a proposed constitutional amendment to outlaw flag-burning cleared the House, an informal survey by the Associated Press suggested the measure lacks enough Senate votes to pass.

The 286-130 outcome in the House was never in doubt, and amendment supporters expressed optimism that a Republican gain of four seats in last November's election could produce the two-thirds approval needed in the Senate, as well, after four failed attempts since 1989.

But an AP survey yesterday found 35 senators on record as opposing the amendment — one more than the number needed to defeat it, barring a change in position.

Late yesterday, Sen. Hillary Rodham Clinton, D-N.Y., revealed that she would vote against the measure.

“I support federal legislation that would outlaw flag desecration, much like laws that currently prohibit the burning of crosses, but I don't believe a constitutional amendment is the answer,” said Clinton. Her aides said there was no contradiction in being against the flag-burning amendment and for a flag-burning law.

Sen. Ken Salazar, D-Colo., remained undecided, a spokesman said.

The last time the Senate voted on the amendment, the tally was 63 in favor and 37 against, four votes short of the two-thirds majority needed.

Now, with more than two dozen new members, a four-seat Republican gain in the last election and a public still stung by the terrorist attacks in 2001, activists on both sides say the Senate could be within a vote or two of passage.

But the amendment's prospects faded late yesterday when Democratic Sens. Maria Cantwell of Washington and Mark Pryor of Arkansas also said they would oppose it.

The House debate ran along familiar lines over whether the amendment strengthened the Constitution or ran afoul of its free-speech protections.

Supporters said there was more public support than ever because of emotions following the 2001 terrorist attacks in New York and Washington. They said detractors were out of touch with public sentiment.

Yet a recent poll by the First Amendment Center found that 63% of Americans surveyed opposed changing the Constitution for the sake of flag protection.

Critics accused amendment supporters of exploiting the attacks to trample the right to free speech.

Rep. Christopher Shays, R-Conn., one of only 12 Republicans to vote against the amendment, said he would do whatever he could to stop someone who was desecrating the flag. But, he said, “I think this constitutional amendment is an overreaction to a nonexistent problem.”

Possible presidential contenders who have supported the amendment in the past include Evan Bayh, D-Ind., Majority Leader Bill Frist, R-Tenn., Chuck Hagel, R-Neb., and John McCain, R-Ariz.

Sen. Joseph Biden, D-Del., a likely presidential candidate, has said he would oppose the amendment.

The proposed one-line amendment to the Constitution reads, “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” For the language to be added to the Constitution, it must be approved by two-thirds of those present in each chamber, then ratified within seven years by at least 38 state legislatures.

The amendment is designed to overturn Supreme Court rulings that flag burning is a protected free-speech right. The cases were Texas v. Johnson (1989) and United States v. Eichman (1990).

The Senate could consider the measure as soon as next month.

The amendments are S.J. Res 12 and H.J. Res 10.

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