New session opens without traditional flag-amendment talk

Analysis

By Phillip Taylor
Special to
The Freedom Forum Online

02.05.01

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In recent years, talk of flag protection has become almost an opening-session tradition for the nation's lawmakers.

Along with promises of balanced budgets, campaign-finance reforms and effective lawmaking, each new Congress has offered the pledge that it would be the Congress to pass a constitutional amendment protecting the U.S. flag from desecration.

The 107th Congress convened last month and ... nothing. Even as the session winds through February, lawmakers have barely uttered a word about such an amendment.

Even the Citizens Flag Alliance, the American Legion offshoot that has led the amendment push, has been uncharacteristically quiet.

"My sense is that the flag amendment's completely off the public radar screen," said Robert Goldstein, a political science professor at Oakland University and author of Flag Burning and Free Speech: The Case of Texas v. Johnson. "There's been no discussion about it for a long time. Whatever the CFA is doing behind the scenes, we don't know. It seems to me that the silence speaks volumes."

But CFA's Executive Director Marty Justus says the amendment push is hardly over. He says it's just delayed because of the transition of President Bush and some new lawmakers. But Justus admits that this session is different from previous ones.

"This time we're going to win," he said.

A flag amendment has surfaced five times over the past six legislative sessions. But each time, opponents have beaten the measure back, often with the narrowest of votes. While the House consistently approves the amendment, the Senate hasn't been as amenable to adding flag protection to the U.S. Constitution.

Just last spring, the Senate rejected the amendment by a vote of 63-37, four shy of the required two-thirds majority. And a survey of the newest senators shows that the amendment would likely fail again, possibly by even more votes than in years past.

But amendment supporters continue, they say, because of the special place the flag holds in the hearts of Americans. They say Congress must amend the Constitution to block courts from striking down laws forbidding desecration of the national symbol. They note two key cases — Texas v. Johnson in 1989 and U.S. v. Eichman in 1990 — where the U.S. Supreme Court determined that the First Amendment protected flag-burning.

But amendment opponents say such an amendment offends core First Amendment principles such as the right of assembly and the right to free speech.

"Basically, the flag amendment represents the first retreat from the Bill of Rights since it was added to the Constitution in 1791," First Amendment scholar Robert Peck said in a telephone interview.

To pass, a flag amendment must first secure two-thirds approval in both the House and Senate. The measure, if passed, would then go to the states, where three-fourths, or 38, of the state legislatures must ratify the amendment.

In past sessions, the proposed amendment has read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Past debate has brought heartfelt and passionate speeches from both sides. Lawmakers have heard from a variety of scholars and even celebrities including former Los Angeles Dodgers coach Tommy Lasorda, actor John Schneider and former Miss America Shawntel Smith.

For the 106th session, the CFA and other supporters secured a promise from Majority Leader Trent Lott that he would jockey a quick vote on the measure. And they got one.

But the CFA, which has spent some $20 million over the past six years, doesn't have such assurances this time around.

A month into the current session, the only sign of a flag-protection measure is one from House Rep. Jo Ann Emerson, R-Mo., who has introduced the measure twice before partly in homage to her deceased husband, a former congressman. As in previous years, it will likely be ignored.

But Peck says that the main amendment resolution, which has yet to be introduced, might face similar inattention. He says observers of the flag-protection debate merely have to surf over to the CFA's Web site to get a sense of the amendment's status.

"Clearly if they thought they had a realistic chance this time, they would be pushing folks to come to their Web site," Peck said. "This is quite a contrast to two years ago. I think it's a signal that they realize that it's over."

But Justus says his group is "gearing up now."

"But you'll see us doing some of the same things we did in previous years, such as getting our grassroots support together," he said.

Justus says the CFA may be further behind than in past years with its effort to rally support for the amendment, but he says that hardly means they aren't active. He attributes much of the delay to the transition of new senators and especially President Bush.

For now, the CFA doesn't have a target date to introduce a flag-amendment resolution in either the House or the Senate. But Justus says he hopes that it will be introduced this year.

Despite that, Justus says support remains strong. He says the amendment appears to maintain a comfortable lead in the House, where it has passed several times with votes to spare. He says the group will be lobbying Senate members soon.

"The majority [have] pledged their support," Justus said. "Now it's up to us to nail them down."

But amendment opponents say support continues to dwindle.

"Over the past 11 years, the switches have all been in the direction of opposition," Peck said. "I think once they (lawmakers) realize the implications of the amendment and its real focus, they realize how inappropriate it is to add to the Constitution in this way."

Peck notes that Sen. Mitch McConnell, a former amendment supporter, has become a very outspoken opponent of the measure. More recently Sen. Robert Byrd, an influential Democrat from West Virginia, decided to vote against the measure saying the Constitution matters more than the flag.

The numbers seem to support Peck's contention.

In the months following the Texas v. Johnson decision, 51 senators voted for a flag-protection amendment. The following session, 58 voted in favor. In 1995, 63 senators, three short of passage because one member abstained, approved the amendment. Supporters failed to get unanimous consent for a vote in 1998, but observers speculate the measure was within two or three votes of passage.

But last year, the measure lost support with a 63-37 vote. Some say opposition may be even greater this time around.

Twelve new senators joined Congress this session replacing seven who had voted for the amendment last year and five who had voted against it. Justus says the CFA expects support from several new senators, including Sens. George Allen, R-Va., Jean Carnahan, D-Mo. and Zell Miller, D-Ga.

But Sens. Hillary Clinton, D-N.Y., Jon Corzine, D-N.J. and Thomas Carper, D-Del., all plan to vote against the amendment, meaning that at least 35 current senators oppose the measure.

Spokespeople for the remaining new senators declined to offer a position until after a flag amendment was introduced.

Given a likely solid vote against the amendment, those opposing the measure say they aren't as flustered about it as in previous sessions.

"It's bad enough (for amendment supporters) that it's not going to pass this time by three or four votes," said Kevin Goldberg, an attorney for the American Society of Newspaper Editors, which opposes the amendment. "But if they lose ground by two or three more votes, that would be particularly damaging."

Terri Schroeder, a legislative analyst for the American Civil Liberties Union, says the vote tally doesn't appear to have changed that much. She says there's a good chance the amendment won't become a big issue in the current session, particularly since the county's new Secretary of State expressed concern about the amendment last year.

"Given the fact that Gen. Colin Powell really expressed his opposition last time, that would be helpful in deterring any focus on this in the coming session," Schroeder said in a telephone interview. "But then again, we typically have our flag votes. I just don't think that there has been any great gain or loss on either side."