House subcommittee waves through flag amendment

Friday, May 25, 2001

On a party-line vote yesterday, a House subcommittee approved a flag-protection amendment, hardly a surprising move to anyone following the perennial effort to forbid the desecration of the U.S. flag.

But the party switch of a Vermont senator the same day has those same folks wondering, but not yet speculating, how the amendment will fare in the Senate.

Sen. James Jeffords' announcement that he would abandon the Republican Party and assume an independent role promises to shake up the Senate structure so that the Democratic Party regains control of that chamber for the first time in seven years. The change could particularly affect legislation in the critical Senate Judiciary Committee, where S.J. Res. 7 — the Senate version of the flag amendment — has been assigned.

But neither opponents nor proponents of flag protection would hazard their opinions about exactly what Jeffords' switch might mean for the amendment or whether it could even reach the Senate floor during the current session.

“I wouldn't dare guess,” said Marty Justis, executive director of the Citizens Flag Alliance, the leading supporter of the amendment. “But it wouldn't affect our effort to get the amendment through the Senate and the House. We'll continue to do as we have in the past, but just do more of it.”

Yesterday's vote of the House Subcommittee on the Constitution on H.J. Res. 36 marked the 107th Congress' first action on the flag amendment since it was quietly introduced on March 13. The amendment reads: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Because the measure is a constitutional amendment, it must be approved in both chambers by a two-thirds majority vote and ratified by three-fourths of the state legislatures. Although the House consistently approves the amendment, the Senate has killed the measure every time. The entire House is expected to vote again in the coming weeks.

Last year, the House approved the amendment by a 305-124 vote. The Senate then voted it down, 63-37, four shy of the required two-thirds majority. To date, 49 state legislatures have passed nonbinding resolutions urging Congress to send the amendment their way for ratification.

Supporters say they will succeed this time, even after support faltered noticeably last session. Sen. Robert Byrd, an influential Democrat from West Virginia, voted against the amendment after years of supporting it.

Although the Citizens Flag Alliance claims to have secured at least one new vote in the Senate this time around, Jeffords' party switch could result in a restructured Judiciary Committee that might reject the amendment.

Of the 18 current committee members, nine voted for the amendment last year while eight voted against it. Maria Cantwell, D-Wash., the newest senator, hasn't said how she would vote, but the Citizens Flag Alliance said it expects her support. Jeffords has voted against the flag amendment.

Regardless, if the Republicans lose a member on the committee in the upheaval and the Democrats place another amendment opponent on the panel, the amendment could fail even to reach the floor in the Senate because of a 9-9 vote.

Meanwhile, support in the House remains strong enough to pass the measure.

Rep. Steve Chabot, R-Ohio and chairman of the Subcommittee of the Constitution, said the amendment offers a legitimate restriction on speech, comparing it to laws against slander, perjury and obscenity. Physical acts against the flag, he claimed, stand outside the forum of legitimate speech.

But opponents say forbidding such acts would restrict worthwhile political expression.

Barney Frank, D-Mass., described the vote on the amendment as an “annual Republican rite of spring.”

The panel considered and rejected two amendments to H.J. Res. 36. The first amendment would have replaced the word “desecration” with “burning.” The second would have tagged the phrase “consistent with the First Amendment of the U.S. Constitution” to the wording of the constitutional amendment.

The subcommittee's final 5-3 vote on the measure was expected, said Kevin Goldberg, an attorney for the American Society of Newspaper Editors.

“There's no real panic about the measure at all,” he said. “We're still focusing our efforts for when it reaches the House floor.”

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