In Close Vote, Senate Defeats Amendment Banning Flag Burning
By MARCY GORDON
Associated Press Writer
WASHINGTON (AP) - By only three votes, the Senate on Tuesday killed a constitutional amendment giving Congress authority to outlaw flag burning and other forms of desecration against Old Glory.
The defeat was jarring to supporters, who had expressed confidence in Senate approval. The House last June approved, 312-120, a broader amendment that gives both Congress and the states the power to determine what is unlawful desecration of the American flag.
The 63-36 Senate vote Tuesday was three votes shy of the two-thirds majority needed for an amendment to the Constitution.
"It unraveled this morning before our eyes," said Susan Ridge, spokeswoman for the Citizens Flag Alliance, a coalition of about 100 groups lobbying for the amendment. "This is a disappointment."
Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said President Clinton's opposition to what proponents hoped would be the 28th Amendment to the Constitution was the decisive factor in its defeat.
A few hours before the vote, the White House said Clinton would be open to a federal law banning desecration of the flag, but that he opposes a constitutional amendment that would alter the Bill of Rights. "The guys in the powdered wigs had it about right in 1792," press secretary Mike McCurry said.
Said Hatch: "This amendment is not going to go away." But he also said he did not think it could pass the Senate as the chamber is now constituted - 53 Republicans, 46 Democrats, one vacancy - and said it likely will have to await action by the new Congress that would be sworn in after next year's elections.
Ridge said the Citizens Flag Alliance, which includes the American Legion, would concentrate its efforts on the 1996 election campaigns by talking up the amendment to candidates and releasing public opinion surveys showing support.
"See you in November," the alliance said in a terse, four-word message.
Forty-nine states - all but Vermont - have passed resolutions urging Congress to support the amendment.
Some opponents who had charged that the amendment would trample free speech rights under the First Amendment continued to express concern, despite its defeat.
"Although today's vote is a vindication for free speech, the fact that it was so close is deeply troubling," said Ira Glasser, executive director of the American Civil Liberties Union. "Have our political leaders forgotten that the First Amendment was designed precisely to protect unpopular speech?"
Before the final vote, the Senate rejected, 71-28, a substitute version proposed by Sen. Mitch McConnell of Kentucky, the leading Republican critic of a constitutional amendment. The substitute would have barred desecration by legislative means rather than changing the Constitution.
The Senate also defeated, 93-5, language proposed by Sen. Joseph Biden, D-Del., that would remove the word "desecration," which he said was too subjective, and empower Congress to bar the burning, mutilation or trampling of the flag, regardless of intent.
The Senate version, sponsored by Hatch, deleted the reference to the states in the House bill in a bid to overcome objections that states might enact conflicting laws.
Hatch's version read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
Congress has proposed more than 10,000 amendments since the Constitution went into effect in 1789. Only 27 have been ratified.
Hatch argued that the flag amendment is needed to overturn two Supreme Court rulings, in 1989 and 1990, that flag-burning was a protected First Amendment right. "Isn't it ridiculous that the American people are denied the right to protect their unique national symbol in the law?," he asked.
But opponents said flag-burning was extremely rare - they cited figures showing only three incidents in 1994 and zero in 1993 - and that the flag amendment was a direct affront to First Amendment rights to free speech.
"Although the flag may stand alone it should not and it cannot stand above our most cherished freedom of speech," said Biden.
The amendment is S.J. Res. 31.
Warren S. Apel