Flag-burning statute proposal fails

Tuesday, March 28, 2000

WASHINGTON — The Senate today rejected an effort to protect the American flag by federal statute rather than by changing the Constitution and moved to bring a constitutional amendment outlawing flag-burning to a vote tomorrow.

To reach a final vote on the flag amendment, the Senate will need to approve a motion to invoke cloture, a parliamentary procedure that limits debate and speeds a final vote. The Senate leadership said today the cloture motion would come to a vote tomorrow morning. If 60 senators agree, the Senate will turn its full attention to the flag amendment under a set of strict rules designed to speed final action.

To pass the Senate, the constitutional amendment barring flag-burning will need a two-thirds majority, or 67 votes if all 100 senators are present and voting. Supporters are believed to be two or three votes short of that total. Still, the vote is expected to be the closest ever in the Senate, which last voted on a flag-burning amendment in 1995, defeating the proposal 63-36.

Opponents of a constitutional amendment, meanwhile, were reluctant to agree to a final vote without forcing the Senate to invoke cloture because of what they called the momentous nature of the proposal. Any move to amend the Constitution and restrict the individual liberties outlined in the First Amendment deserves “a full and even an exhaustive debate,” said Sen. Russell Feingold, D-Wis., a member of the Senate Judiciary Committee.

Earlier in the day, the Senate turned aside an effort by Sen. Mitch McConnell, R-Ky., to protect the flag under a federal law rather than taking the more extreme step of changing the Constitution. The McConnell proposal, which needed only a majority vote to pass, was defeated, 64-36.

The Senate also defeated another proposed amendment by Sen. Ernest F. Hollings, D-S.C., to change the First Amendment to allow spending limits to be imposed on federal election campaigns. The Hollings amendment was tabled, or killed, on a 67-33 vote. (See related story.)

Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee, urged the Senate to turn aside the McConnell effort to make flag-burning illegal by federal statute. Hatch said that proposal was doomed to be found unconstitutional by the Supreme Court just as other efforts to prohibit flag-burning by statute have been.

“The argument that a statute will suffice is an illusion. It's a phony,” Hatch said. “We've been down this road before and it will … automatically be held unconstitutional by the Supreme Court. It's just a game, and it's time for people to stand up for the flag.”

He said only through a constitutional amendment can the flag be guaranteed the protection it deserves.

“Make no mistake,” the Judiciary chairman continued, “the United States Senate is the forum of last resort to make sure the flag is protected.”

The House passed the flag-burning amendment by a wide margin last year, just as it has done in 1995 and 1997. If the Senate approves the amendment by a two-thirds majority, it would then go to the states for ratification. Three-fourths of the state legislatures would need to vote “yes” for the amendment to become part of the Constitution, a result considered likely since 49 legislatures have approved resolutions calling for an amendment to outlaw flag-burning.

The McConnell amendment would have imposed stiff fines and jail sentences for individuals convicted of desecrating a flag under these circumstances:

  • A person who destroyed or damaged a flag with a clear intent to incite violence or a breach of peace would be subject to a $100,000 fine, a one-year prison term or both.

  • A person who stole an American flag belonging to the United States and destroyed that flag would be subject to a $250,000 fine, a two-year jail term or both.

  • And a person who stole a flag and intentionally destroyed or damaged it on federal property would also be subject to a $250,000 fine, a two-year jail term or both.

McConnell said Hatch was wrong in maintaining that his statutory approach to flag-burning would be rejected by the Supreme Court. He said legal experts for the Congressional Research Service and a number of other legal scholars had reviewed the language and determined it would pass constitutional muster.

“I think it is a better way to get at this problem,” McConnell said.

Hatch, the chief sponsor of the flag amendment, said his proposal to change the Constitution was not intended to limit First Amendment freedoms, but merely to overturn what he called two erroneous decisions by the Supreme Court that have held flag-burning to be a protected form of political speech.

“It's conduct, not speech,” Hatch said of flag-burning. “As a society we can and do place limits on both speech and conduct.”

The Senate votes were taken in an emotion-charged atmosphere heightened by the presence of a number of American Legion members in the halls of the Capitol and the Senate office buildings. The American Legion, the lead veteran's group in the push to protect the flag by constitutional amendment, was meeting in Washington this week for its annual convention, and the Senate vote was set to coincide with that gathering. Before the vote, a number of American Legion members joined the chief Senate sponsors of the bill for a pro-flag rally outside the Capitol.

Opponents stressed that although no one favors desecration of the flag, it would be wrong to take an action that would mark the first restriction of freedoms in the Bill of Rights in the nation's more than 200-year history.

“That amendment, for the first time in history, would take a chisel to the First Amendment,” said Feingold.

“We're talking here about First Amendment rights, rights of expression, rights of speech, which are envied around the work,” said Sen. Richard Durbin, D-Ill. “Nations around the world look not to our flag — they have their own flag — but to our values.”

Sen. Patrick Leahy, D-Vt., the ranking Democrat on the Judiciary Committee, criticized Senate Republicans for bringing up an issue that was merely symbolic when so many real problems need to be addressed.

“There's a lot to be done,” Leahy said. “There's very little that's being done.”