Flag Amendment Narrowly Fails in Senate Vote
By CARL HULSE
Published: June 28, 2006
The New York Times

WASHINGTON, June 27 - A proposed Constitutional amendment to allow Congress
to prohibit desecration of the flag fell a single vote short of approval by
the Senate on Tuesday, an excruciatingly close vote that left unresolved a
long-running debate over whether the flag is a unique national symbol
deserving of special legal standing.
The 66-to-34 vote on the amendment was one vote short of the 67 required to
send the amendment to the states for potential ratification as the 28th
Amendment. It was the closest proponents of the initiative have come in four
Senate votes since the Supreme Court first ruled in 1989 that flag burning
was a protected form of free speech.
The opponents - 30 Democrats, 3 Republicans and an independent - asserted
that the amendment would amount to tampering with the Bill of Rights in an
effort to eliminate relatively rare incidents of burning the flag. They said
it violated the very freedoms guaranteed by the symbolism of the flag.
"This objectionable expression is obscene, it is painful, it is
unpatriotic," said Senator Daniel Inouye, a Hawaii Democrat who won the
Medal of Honor for his service in World War II. "But I believe Americans
gave their lives in many wars to make certain all Americans have a right to
express themselves, even those who harbor hateful thoughts."
Proponents of the amendment, which was backed by 52 Republicans and 14
Democrats, disputed the assertion that burning the flag was a form of
speech. They said the amendment was simply an effort to reassert
Congressional authority after a misguided court ruling. They said it was
particularly appropriate to act now when American troops are at risk.
"Old Glory lost today," said Senator Bill Frist, the majority leader, who
scheduled the debate and vote in the week before Congress broke for its
Fourth of July recess.
The full text of the proposed amendment is, "The Congress shall have power
to prohibit the physical desecration of the flag of the United States."
The vote is likely to be an issue in the Congressional elections in
November, and Senator Orrin G. Hatch, the Utah Republican who was the chief
sponsor of the amendment, predicted the minority who opposed it would be
held accountable by the voters.
"I think this is getting to where they are not going to be able to escape
the wrath of the voters," Mr. Hatch said.
Eleven senators facing re-election this year opposed the amendment and
several are facing potentially difficult races, including Lincoln Chafee of
Rhode Island, a Republican, and the Democrats Daniel K. Akaka of Hawaii,
Robert C. Byrd of West Virginia, Maria Cantwell of Washington and Joseph I.
Lieberman of Connecticut.
The leader of the Citizens Flag Alliance, which had been running newspaper
advertisements on the issue in selected states, said it would continue to
press the issue and make sure voters know where their senators stand on the
amendment.
"I think this is the right thing to do, and I am going to keep at it until
we run out of money or they tell me to stop," said Daniel S. Wheeler, an
American Legion official who leads the advocacy group.
Prior to the vote on the amendment itself, the Senate voted 64 to 36 against
a proposed bill that would have criminalized flag desecration. Senator
Richard J. Durbin of Illinois, the second ranking Senate Democrat, said his
plan had been written to avoid Supreme Court objections, but backers of the
constitutional approach dismissed that idea.
President Bush, whose father was president when the flag fight initially
erupted in the aftermath of two high court rulings, said he was disappointed
in the outcome. "I commend the senators from both parties who voted to allow
the amendment ratification process to protect our flag to go forward, and
continue to believe that the American people deserve the opportunity to
express their views on this important issue."
The House has routinely approved the flag amendment on bipartisan votes and
did so last year. Had the Senate passed the amendment, it would have been
likely to win ratification from the required 38 states since, supporters
say, all states have endorsed the amendment in some form.
While the amendment gained three votes since it was last considered in 2000,
its future prospects are uncertain. Senator Mitch McConnell, Republican of
Kentucky, is in line to become the Republican leader in the next Congress,
and he opposes the initiative on free speech grounds. In addition, most
analysts expect Republicans to lose Senate seats in the November election.
"This would have been the easiest time to get it through," said Senator
Charles E. Schumer, Democrat of New York, who opposed it.
The vote, which came after the Senate earlier this month defeated a proposed
constitutional amendment to ban same-sex marriage, will not be the last
ideologically charged vote in the run-up to the midterm elections. The House
Republican leadership announced Tuesday that it plans votes this summer on
social issues, including a same-sex marriage amendment, abortion rights,
Internet gambling, property rights and the Pledge of Allegiance.
"The American Values Agenda will defend America's founding principles,"
Speaker J. Dennis Hastert said. "Through this agenda, we will work to
protect the faith of our people, the sanctity of life and freedoms outlined
by our founding fathers."
And the House on Tuesday approved on a voice vote a proposal that would
prohibit condominium associations and other homeowner groups from preventing
residents from displaying the flag.
The American Civil Liberties Union, which has been deeply involved in
opposing the amendment for years, credited the senators who took a
potentially politically tough vote to block it.
"The Senate came close to torching our Constitution, but luckily it came
through unscathed," said Caroline Fredrickson, director of the
organization's Washington legislative office. "We applaud those brave
senators who stood up for the First Amendment and rejected this damaging and
needless amendment."
Besides senators up for re-election, the issue also divided lawmakers
considered possible presidential candidates in 2008. Those voting yes
included Mr. Frist, George Allen of Virginia, John McCain of Arizona, Sam
Brownback of Kansas and Chuck Hagel of Nebraska, all Republicans, and Evan
Bayh of Indiana, a Democrat. Voting no on the Democratic side were
Christopher J. Dodd of Connecticut, Hillary Rodham Clinton of New York,
Joseph R. Biden Jr. of Delaware, Russell D. Feingold of Wisconsin and John
Kerry of Massachusetts.