[Congressional Record Volume 141, Number 193 (Wednesday, December 6, 1995)]
[Senate]
[Pages S18038-S18049]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      FLAG DESECRATION CONSTITUTIONAL AMENDMENT--MOTION TO PROCEED

  Mr. DOLE. Mr. President, I move to proceed to the consideration of 
Senate Joint Resolution 31.
  The PRESIDING OFFICER. Is there debate on the motion?
  Mr. DOLE. Mr. President, I know there will be debate on the motion. I 
do not know how long the Senator from New Mexico wishes to debate. But 
I hope that we can go to the bill itself in the next couple of hours. 
This means we will have to be here longer this evening. We would like 
to complete action. We are going back to partial-birth abortion bill at 
5 o'clock and will try to finish that tonight.
  Hopefully, if there is some time or any requests for time on the 
amendments, we can continue that debate tonight and finish this bill by 
noon tomorrow.
  I yield the floor.
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Mr. President, I did object to proceeding with the 
debate on the flag amendment because I believe that we have neglected 
some other very important constitutional duties. Specifically, we have 
neglected to provide our advice and consent of ratification of START II 
and also on confirming the nomination of ambassadors to nations, which 
include over a third of the world's population. That has now been 
delayed many months.
  I have been told this morning that a deal which would allow for the 
Foreign Relations Committee to meet tomorrow and report the treaty and 
these nominations, which will allow the Senate to approve them next 
week and deal with the State Department authorization bill, as well, 
may be at hand. I would be delighted if that proves to be true, and I 
would gladly yield the floor and allow the Senate to proceed with 
debate on the flag amendment as soon as we can get some kind of 
unanimous-consent agreement to that effect.
  But, for the moment, I think that I have no choice but to talk for a 
period here about the constitutional obligations we have to provide 
advice and consent on treaties and with regard to the appointment of 
ambassadors.
  Mr. President, before we amend the Constitution, I hope we will not 
amend the first amendment, as proposed in the flag amendment, for the 
first time in the history of this Republic. I believe we should not go 
on to consider that before we get about the business of carrying out 
our current responsibilities under the Constitution.
  Article II, section 2 of the Constitution deals with the powers of 
the President. The second paragraph says:

       He shall have Power, by and with the Advice and Consent of 
     the Senate, to make Treaties, provided two-thirds of the 
     Senators present concur; and he shall nominate, and by and 
     with the Advice and Consent of the Senate, shall appoint 
     Ambassadors, other public Ministers and Consuls, Judges of 
     the Supreme Court, and all other Officers of the United 
     States . . .

  Mr. President, I have a couple of charts which I would like to refer 
to here just to make the points that need to be made. This first chart 
deals with the chronology of events related to the START II treaty. 
This treaty was signed by President Bush on January 3, 1993. It was 
submitted to the Senate by President Bush on January 15, 1993. That was 
almost 3 years ago.
  Until last December when the issues were resolved that allowed the 
START I treaty to enter into course, perhaps it was appropriate not to 
proceed with the ratification of START II. Once that treaty was 
overcome, then everyone expected that the START II treaty would be 
dealt with by this body early this year--early in 1995.
  The last hearing of the Foreign Affairs Committee on the treaty took 
place on March 29 of this year.
  Senator Lugar, at a conference the next day on March 30 said,

       I chaired the final Foreign Relations subcommittee hearing 
     in the Senate yesterday on the START II treaty. The committee 
     will seek to mark up the treaty after the April recess. We 
     will look to potential floor action during the middle of the 
     month of May. It is a good treaty, but it is one thing to 
     have reached agreements and understandings, another to have 
     fully implemented.

  Mr. President, next week we will be in mid-December, fully 7 months 
behind the schedule that was outlined by the senior Senator from 
Indiana, whom I greatly respect for his leadership on our policy toward 
Russia. I wish we had held to the original timetable. Obviously, we 
have not.
  I fear the delay has only complicated the prospects for treaty 
ratification in the Russia Duma. We have provided an obvious excuse for 
inaction for 7 months now. We should not make that excuse, extend that 
excuse, for 8, 9, or 10 months.
  As Senator Lugar went on to point out in his March 30 speech,

       To reach the START II limits by the year 2000 or 2003 will 
     require enormous effort and cost, particularly on the Russian 
     side. This will be difficult in the best of times but it is 
     particularly challenging given the political and economic 
     revolution engulfing Russia today.

  The genius of the Nunn-Lugar cooperative reduction effort has been to 
face the facts squarely and try to help where we can in the Russian's 
effort to dismantle their nuclear stockpile. Months of inaction on our 
part cannot have improved the prospects for ratification in the Duma.
  In the elections in Russia in less than 2 weeks we are likely to see 
a more conservative Duma emerge, where one Start II ratification will 
be more difficult as a challenge for President Yeltsin.
  Mr. President, I believe our delay in carrying out our constitutional 
duties on START II has consequences and they are potentially very bad 
consequences for our security and for our relations with Russia.
  Similarly, I believe the delay in carrying out our constitutional 
duties on ambassadorial nominations has consequences.
  I have a second chart here I want to go through. This is a list of 
the ambassadorial nominations that have been delayed. This is from the 
time that they were submitted to the Foreign Affairs Committee. We have 
the names of the ambassadors whose papers are entirely in order and who 
could be confirmed rapidly if the Foreign Affairs Committee were to 
hold a business meeting. There are 18 names on the list. We can go into 
them in some detail later on in the morning or later in the day.
  Together, we have also listed, of course, the countries that they 
would be ambassadors to and the date that the nomination was sent here 
to the Senate.
  Most of these people, 14 of them to be precise, are Foreign Service 
officers. Four of them, Jim Sasser, Sandra Kristoff, James Joseph, and 
John Gevirtz are noncareer political appointments. Many of these 
nominations have been ready to move since July.

  Mr. President, the lives of these people and their families have been 
disrupted by our inaction. Our ability to carry on our diplomatic 
efforts with these nations and in these parts of the world have been 
disrupted, as well.
  The signal that we send to the rest of the world when we fail to have 
ambassadors in key capitals is not a good signal. Look at the list of 
nations that we have here, Mr. President: China, Indonesia, Pakistan, 
Thailand, Cambodia, Malaysia, Sri Lanka, our Ambassador to the Asia 
Pacific Economic Cooperation Organization--APEC, which met recently, 
and we were not represented by an ambassador at that meeting. The Vice 
President attended in lieu of our President because of the difficulties 
here in getting agreement on a budget.
  What sort of signal are we sending to Asia when we will not carry out 
our constitutional duties here in the Senate in a timely fashion? These 
nations include over a third of the world's population and some of the 
world's fastest growing economies. We have important and very critical 
interests in these nations, yet we cannot get around to confirming our 
ambassadors to them.
  Many of the other nations listed are in Africa: South Africa, 
Cameroon, Rwanda, et cetera. Again, what sort of a signal are we 
sending? In the case of South Africa, again, the Vice President is 
there on a trip this week.
  I am sure that our neglect of our responsibilities in the Senate is 
much 

[[Page S 18039]]
bigger news in those nations than it is here, but what we are doing or 
failing to do in my view is wrong and my point this morning is that we 
need to get agreement in the Senate to take action on these nominations 
and to take action on START II before we proceed with other less 
pressing business.
  Mr. President, the proposal that the majority leader would like to 
move to today is the amendment to the Constitution dealing with flag 
burning. Whether a particular Senator opposes that amendment or favors 
it, I think all of us would have to agree that it is not urgent for the 
Senate to act on that proposal.
  We have survived as a nation now for about 206 years without that 
amendment being adopted. I am a fairly regular reader of the newspaper. 
I read the newspaper this morning. I could find nothing in there 
indicating that people are burning flags around this country or around 
the world, in fact. Of course, the proposal is primarily aimed at those 
burning flags in this country.
  The point is very simply, Mr. President, whether you favor or oppose 
the amendment, it is not urgent that we deal with it. We do not need to 
put aside other pressing important business in order to deal with the 
flag amendment today and tomorrow. I think it is much more important 
that we do the business of the Senate, and the business of the Senate 
very simply as set out in the Constitution which we are now talking 
about amending, the business of the Senate is to approve nominations--
or disapprove.
  I am not saying here I expect every Senator to come to the floor and 
vote for each of these Presidential nominees to be ambassador. It is 
possible that some of our colleagues would like to vote against them. 
That is fine. I am not insisting on a particular outcome.
  I am saying that the Senate should have the chance to vote on these 
ambassadorial nominations and on the START II treaty before we conclude 
our business this year.
  I understand that Senator Hatch is on the floor and he would like to 
speak for a period on the flag amendment. I certainly am willing to 
yield to him to do that since we will still be in a period debating 
whether or not to proceed to consideration of the bill.
  I yield the floor.
  Mr. HATCH. Mr. President, I thank my colleague. It was very gracious 
of him to do that, because I am concerned whether we are going to get 
to this amendment.
  Let me, just for a moment, suggest the absence a quorum with the 
understanding I will be recognized as soon as we come out of the quorum 
call.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I thank my colleague for being willing to 
yield me this time, because we were supposed to start on the flag 
amendment at 10 this morning. I do deeply regret that we are now on a 
filibuster against a constitutional amendment to prevent the 
desecration of the American flag. I think the American people should 
know that this is a filibuster.
  We have had a filibuster on virtually every bill this year. At the 
height of Republican irritation at Democratic control of the Senate in 
the past, I cannot remember any year on which there have been 
filibusters on virtually everything of substance in any given year. 
Selected filibusters, yes--and I am the first to say that should be 
done. I am the first to uphold the filibuster rule. But not on 
everything.
  To prevent us from even considering, or at least trying to prevent us 
from considering an amendment to protect the flag, which most 
Americans, at least 80 percent, favor, it seems to me is something I 
hope my colleagues on the other side will think through and change 
their ways, because this is not right. But I do appreciate my colleague 
allowing me this time to make a few comments about how important this 
amendment is.
  It comes down to this. Will the Senate of the United States confuse 
liberty with license? Or will the Senate of the United States allow the 
people of the United States to have the right to protect their beloved 
national symbol, the American flag?
  The Supreme Court, in 1989, in the first of two mistaken 5 to 4 
decisions, stripped the American people of that right. This is a right 
the American people had for over 200 years. This is a right they had 
exercised in 48 States and in Congress. Seventy-three percent of my 
fellow Utahns favor a constitutional amendment to protect the flag.

  Forty-nine State legislatures, including the Utah Legislature, have 
called upon Congress to pass a flag protection amendment. Here are 49 
petitions--here are the voices of people reflected in their State 
legislatures; 49 petitions for this amendment. Three-hundred and twelve 
members of the other body have already voted for this constitutional 
amendment. This includes nearly half of the members of the other side 
of the aisle, including their leader, Dick Gephardt--a wonderful 
display of bipartisanship over there, one of the few we have had in 
this whole last 2 years. So, it does come down to the Senate, no doubt 
about it.
  Many of the Nation's law professors and editorial boards oppose this 
amendment. An intemperate American Bar Association and the American 
Civil Liberties Union oppose the amendment. Regrettably, President 
Clinton opposes this amendment, and I am sure that costs us a few 
votes. They may be critical votes on this particular amendment. If this 
goes down, it will be primarily, perhaps, because the President is 
opposed to it. But the American people favor this amendment.
  We live in a time when standards have eroded. Our sensibilities are 
increasingly bombarded by coarse and graphic speech and by angry and 
vulgar discourse. We and our children and grandchildren can routinely 
watch television shows that contain material we never saw or heard on 
movie screens not so many years ago, let alone on TV. I noticed our 
colleagues, Senators Lieberman and Nunn, have expressed concerns about 
the erosion of standards in some aspects of daytime television. I need 
not dwell on what we and our children can watch at the movies these 
days. I need not dwell on the lyrics our children are listening to 
throughout our country, or that they can listen to.
  Drugs, crime, and pornography debase our society to an extent that no 
one would have predicted just two generations ago. The breakdown in the 
family, the divisions among our citizens, threaten our progress as one 
people bound together by common purposes and values.
  Civility and mutual respect--preconditions for the robust expression 
of diverse views in society--are in decline.
  Absolutes are ridiculed. Values are deemed relative. Nothing is 
sacred. There are no limits. Anything goes.
  Individual rights are cherished and constantly expanded, but 
responsibilities are shirked and scorned.
  We seek to instill in our children a pride in our country--a pride 
that we hope will serve as a basis for good citizenship and for 
devotion to improving our country and adhering to its best interests as 
they can honestly see those interests; a pride in country that takes 
them beyond the question, ``What's in it for me?'' We seek to instill a 
pride in country that may one day be called upon as a basis for painful 
sacrifice in the country's interests, maybe even the ultimate 
sacrifice, as it was in the case of my brother, in the Second World 
War.
  We hope our children will feel connected to the diverse people who 
are their fellow citizens--the people they will grow up to work with, 
cross paths with in daily life, and live among.
  We ask our school children to pledge allegiance to the flag. But, the 
Supreme Court now dictates that we must tell them that the same flag is 
unworthy of legal protection when it is treated in the most vile, 
disrespectful, or contemptuous manner.
  At the same time that we seek to foster pride in each rising 
generation, our country grows more and more diverse. Many of our people 
revel in their particular cultures and diverse national origins, and 
properly so. Others are alienated from their fellow citizens and from 
government altogether.
  We have no monarchy, no state religion, no elite class--hereditary or 
otherwise--representing the Nation and its unity. We have the flag. 

[[Page S 18040]]

  The American flag is the one symbol that unites a very diverse people 
in a way nothing else can, in peace or war. Despite our differences of 
party, politics, philosophy, religion, ethnic background, economic 
status, social status, or geographic region, the American flag forms a 
unique, common bond among us. Failure to protect the flag inevitably 
loosens this bond, no matter how much some may claim to the contrary. 
In my opinion, the defenders of this newly discovered, so-called right 
to desecrate the American flag do confuse liberty with license.
  The issue really does boil down to this: isn't it ridiculous that the 
American people are unable to protect their flag, if they wish to do 
so? This one, unique symbol of our country? It might come as a shock to 
many, but the law does not have to be totally devoid of common sense. 
Of course, the amendment and implementing statutes must be carefully 
crafted and the lawyers consulted on this. But the underlying issue is 
not nearly as complicated as the legal mumbo--jumbo of the lawyers and 
elitists make it out to be.
  Perhaps Paul Greenberg, editorial page editor of the Arkansas 
Democrat Gazette, summarized it best in a July 6, 1995 column:

       ``But didn't our intelligentsia explain to us yokels again 
     and again that burning the flag of the United States isn't an 
     action, but speech, and therefore a constitutionally 
     protected right? That's what the Supreme Court decided, too, 
     if only in one of its confused and confusing 5-to-4 splits. 
     But the people don't seem to have caught on. They still 
     insist that burning the flag is burning the flag, not making 
     a speech. Stubborn lot, the people. Powerful thing, public 
     opinion . . .
       ``It isn't the idea of desecrating the flag that the 
     American people propose to ban. Any street-corner orator who 
     takes a notion to should be able to stand on a soapbox and 
     badmouth the American flag all day long--and apple pie and 
     motherhood, too, if that's the way the speaker feels. It's a 
     free country.
       ``It's actually burning Old Glory, it's defacing the Stars 
     and Stripes, it's the physical desecration of the flag of the 
     United States that oughta be against the law. And the people 
     of the United States just can't seem to be talked out of that 
     notion--or orated out of it, or lectured out of it, or 
     condescended and patronized out of it.
       ``Maybe it's because the people can't shut their eyes to 
     homely truths as easily as our Advanced Thinkers. How many 
     legs does a dog have, Mr. Lincoln once asked, if you call its 
     tail a leg? And he answered: still four. Calling a tail a leg 
     doesn't make it one. Not even a symbolic leg. The people have 
     this stubborn notion that calling something a constitutional 
     right doesn't make it one, despite the best our theorists and 
     pettifoggers can do.
       ``The people keep being told that their flag is just a 
     symbol.
       ``Just a symbol.
       ``We live by symbols, said a Justice of the U.S. Supreme 
     Court (Felix Frankfurter) . . . And if a nation lives by its 
     symbols, it also dies with them.
       ``To turn aside when the American flag is defaced, with all 
     that the flag means--yes, all that it symbolizes--is to ask 
     too much of Americans. There are symbols and there are 
     Symbols. There are some so rooted in history and custom, and 
     in the heroic imagination of a nation, that they transcend 
     the merely symbolic; they become presences. . . .

  I think that is a pretty profound editorial.
  The amendment before us does not itself protect the flag. It empowers 
Congress and the States to do so. The amendment reads: ``The Congress 
and the States shall have power to prohibit the physical desecration of 
the flag of the United States.''
  That is a very simple statement, as constitutional amendments should 
be stated.
  Now I wish we did not have to amend the Constitution to achieve our 
purpose. It should not be necessary. I believe that the Constitution 
permits Congress and the States to enact flag protection laws. But as 
our colleague Senator Feinstein and others have well noted, the Supreme 
Court has given us no choice. Twice it has struck down statutes 
protecting the flag--in Texas versus Johnson in 1989, a Texas statute; 
and in U.S. versus Eichman in 1990, a Federal statute that we enacted 
in response to Johnson. This amendment would overturn both decisions.
  I remember when we debated that on the floor. I said the court would 
strike that statute down which, of course, it has.
  Now let me be clear what this debate is not about. This is not about 
who loves the flag more. President Clinton and other present opponents 
of legal protection of the flag, and opponents of this particular 
amendment, love the flag no less than supporters of the amendment. 
Patriots can disagree about this amendment.
  This is also not about who believes in the first amendment more. 
Supporters of this amendment, no less than its opponents, believe in 
protecting the right of free speech. In my view, there is no clash 
between protecting the American flag and preserving freedom of speech. 
And, during all the years that flag protection statutes were on the 
books, freedom of speech in this country actually expanded under the 
law.
  The amendment does not prescribe what shall be orthodox in politics, 
nationalism, or any matter of opinion. This amendment does not compel 
anyone, by word or act, to salute, honor, or respect the flag.
  So what, then, is this debate really about? This debate concerns our 
judgment about what values are truly at stake. It is about our sense of 
national community. It is about whether it is important enough to 
ensure that the one unique symbol of all of us, under which many have 
fought and died, may be protected if the people feel strongly enough to 
do so.
  This debate, then, is about letting the American people, so many of 
whom do respect, revere, and honor our flag, decide whether this 
indisputably unique symbol of our country is worthy of legal protection 
from those who would physically desecrate it. Right now, the Supreme 
Court mistakenly has mistakenly stripped the people of their 200-year-
old democratic right to make this decision.
  The flag is the quickest and most intense way for those with an 
urgent cause to seek identification with their fellow citizens and 
American ideals and principles. Indeed, it is not uncommon for causes 
seeking popular support to rely on the flag as a silent but extremely 
powerful part of their appeal to fellow Americans. In a wonderful book, 
``Star Spangled Banner, Our Nation and its Flag,'' by Margaret Sedeen, 
published by the National Geographic Society, one can see vivid 
reminders of this. On page 181, women suffragettes are shown in an open 
air car with placards proclaiming their cause and waving several 
American flags. Two pages later is another picture, and I will read its 
caption:

       Holding the flag high as a banner for his cause, a marcher 
     makes his way along the road from Selma to Montgomery, AL, in 
     the spring of 1965, protesting continued efforts to deny most 
     southern blacks their rights to register and vote. Within 
     months of the march, Congress approved the Voting Rights Act 
     of 1965.

  Now, parenthetically, I should note that in between these two pages 
is a picture which will make the blood boil of every Member of this 
body. I will read that inscription:

       On April 5, 1976, a white high school student, 1 of 200 
     antibusing demonstrators in Boston that day, used the flag as 
     a lance to lunge at a black attorney who walked onto the 
     scene.

  This is a picture of the man. Mr. President, this is as vile a 
physical abuse of the flag as any flag burning you have ever seen. It 
is also a reminder to us that any amendment we adopt must be worded so 
as to permit legislative bodies to address the variety of 
disrespectful, physical mistreatments of the flag that can occur.
  It is not possible to express fully all of the reasons the flag 
deserves such protection. As then Justice Rehnquist wrote in 1974: 
``The significance of the flag, and the deep emotional feelings it 
arouses in a large part of our citizenry, cannot be fully expressed in 
the two dimensions of a lawyer's brief or of a judicial opinion.'' 
[Smith v. Goguen, 415 U.S. 566 at 602 (1974)(Rehnquist, J., 
dissenting).] The notion that our law denies the American people the 
ability to protect their flag from physical desecration defies common 
sense.
  This amendment empowers Congress and the States to protect only the 
American flag--and only from acts of physical desecration.


                 This Cause Originates with the People

  The current movement for this amendment originates with the American 
people. It is right and proper that their elected representatives 
respond affirmatively.
  I respect those who have a different view. But I also think that 
supporters of this amendment, who are Democrats and Republicans alike, 
deserve the same presumption of good faith in our motives. 

[[Page S 18041]]

  So let me note at the outset that this has always been a bipartisan 
effort. On June 28, as mentioned earlier, nearly half of the Democrats 
in the House, including their leader, Richard Gephardt, voted for the 
amendment.
  In the Senate, the lead cosponsor is Senator Heflin. The Democratic 
whip, Senator Ford, is a cosponsor, as are Senators Feinstein, Baucus, 
Rockefeller, Johnston, Breaux, Hollings, Exon, Reid, and Nunn.
  I am troubled, therefore, that some opponents of the amendment would 
accuse its congressional sponsors of trying to score political points 
by pursuing ratification of this amendment.
  So why are we here today? A grassroots coalition, the Citizens Flag 
Alliance, led by the American Legion, has been working for some time in 
support of a constitutional amendment regarding flag desecration. The 
Citizens Flag Alliance consists of over 100 organizations, ranging from 
the Knights of Columbus; Grand Lodge, Fraternal Order of Police; and 
the National Grange to the Congressional Medal of Honor Society of the 
USA and the African-American Women's Clergy Association. These 
organizations represent millions of Americans. Over 200,000 individuals 
also belong to the Citizens Flag Alliance. The American Legion, and 
then the Citizens Flag Alliance as well, worked to obtain support for 
the amendment. Citizens organizations exist in every State. The 
Veterans of Foreign Wars also supports this amendment.
  The Citizens Flag Alliance approached Senator Heflin and me last 
year, well before the November elections, and asked us to lead 
a bipartisan effort in the Senate. They told us they had reasonable 
hopes that President Clinton would support this amendment. Senator 
Heflin and I did not initiate this current effort. We would not be here 
now if the Citizens Flag Alliance had not initiated it. A similar 
bipartisan approach was made in the House of Representatives.

  So why are we here today? We are here for the reasons expressed by 
Rose Lee, a Gold Star Wife and past president of the Gold Star Wives of 
America. Her husband died on active duty 23 years ago and she brought 
the flag that draped her husband's coffin to the June 6 hearing on this 
amendment. She testified, ``It's not fair and it's not right that flags 
like this flag, handed to me by an Honor Guard 23 years ago, can be 
legally burned by someone in this country * * * [It is] a dishonor to 
our husbands and an insult to their widows to allow this flag to be 
legally burned.'' Did she and the other Gold Star Wives who accompanied 
her to the hearing show up to play politics?
  We are here for the reasons expressed by Joseph Pinon, assistant city 
manager of Miami Beach, FL, who fled Castro's Cuba, fought as a marine 
in Vietnam, and whose Marine unit refused to leave the flag behind at 
hill 695 when that unit had to withdraw under enemy pressure. Did he 
testify in order to play politics?
  We are here for reasons which reside in the hearts and minds of the 
American people, reasons which are not easy to put into words. The flag 
itself represents no political party or ideology.
  Make no mistake: the American people resurrected this amendment. They 
will keep it alive until it is ratified.
  There is more wisdom, judgment, understanding, and common sense among 
the American people on this matter than on our Nation's law faculties, 
editorial boards, and in the Clinton administration. Let me cite some 
of that common sense. In the 1989 Judiciary Committee hearings, R. Jack 
Powell, executive director of the Paralyzed Veterans of America, said 
it as well as anyone:

       ``The members of Paralyzed Veterans of America, all of whom 
     have incurred catastrophic spinal cord injury or dysfunction, 
     have shared the ultimate experience of citizenship under the 
     flag: serving in defense of our Nation. The flag, for us, 
     embodies that service and that sacrifice as a symbol of all 
     the freedoms we cherish, including the First Amendment right 
     of free speech and expression. Curiously, the Supreme Court 
     in rendering its decision [in Texas versus Johnson] could not 
     clearly ascertain how to determine whether the flag was a 
     ``symbol'' that was ``sufficiently special to warrant . . . 
     unique status.'' In our opinion and from our experience, 
     there is no question as to the unique status and singular 
     position the flag holds as the symbol of freedom, our 
     Constitution and our Nation. As such it must be defended and 
     provided special protection under the law.

                           *   *   *   *   *

       I am concerned that there is some impression, at least in 
     the media and by some others that are around, that the idea 
     of supporting the flag is some idea just of right-wing 
     conservatives, and I have heard some Senators say, those 
     veteran organizations, and that kind of thing.
       In fact, the flag is the symbol of a constitution that 
     allows Mr. Johnson to express his opinion. So, to destroy 
     that symbol is again a step to destroy the idea that there is 
     one nation on earth that allows their people to express their 
     opinions, whether they happen to be socialist opinions or 
     neo-Nazi opinions, or democratic opinions or republican 
     opinions.

  Now listen carefully to these further words from Mr. Powell:

       Certainly, the idea of society is the banding together of 
     individuals for the mutual protection of each individual. 
     That includes, also, an idea that we have somehow lost in 
     this country, and that is the reciprocal, willing giving up 
     of unlimited individual freedom so that society can be 
     cohesive and can work. It would seem that those who want most 
     to talk about freedom ought to recognize the right of a 
     society to say that there is a symbol, one symbol, which in 
     standing for this great freedom for everyone of different 
     opinions, different persuasions, different religions, and 
     different backgrounds, society puts beyond the pale to 
     trample with. [Testimony of R. Jack Powell, Sept. 13, 1989, 
     at 432-437].

  There is more wisdom and judgment in these few paragraphs than my 
colleagues will find in page after page of the Clinton administration's 
testimony, the arcane testimony of law professors opposed to the 
amendment, or the thoughtless and intemperate outbursts of the American 
Bar Association.
  The July 24, 1995, Washington Post published a letter from Max G. 
Bernhardt, of Silver Spring, MD. He said:

       I'm certainly a liberal, although I've always made up my 
     own mind on things and have never felt an obligation to 
     accept anyone else's definition of what was and what was not 
     the proper liberal position on any given issue. I can't for 
     the life of me figure out why the proposed amendment to the 
     Constitution outlawing desecration of the United States flag 
     should evoke the furious opposition that it has.
       There seem to be three principal arguments against it: 
     First, it isn't needed because this isn't what people are 
     doing anymore; second, it will have a chilling effect on the 
     exercise of free expression; third, it will start us down the 
     proverbial slippery slope to various other infringements on, 
     and restrictions of, free speech and expression.
       If we don't need it, then it won't matter one way or 
     another if it's enacted, and no one has to worry about it 
     being there as a part of the Constitution. I see no reason 
     why desecration of our flag needs to be tolerated in the 
     name of free speech. I cannot see how outlawing such acts 
     adversely affects free expression--other than flag 
     desecration itself--in any manner, shape, or form. Given 
     the nature of the process required to enact an amendment 
     to the Constitution, I see no reason to fear that 
     enactment of this amendment will lead to the enactment of 
     other constitutional amendments that might be adverse to 
     free expression or other rights.
       Far from destruction of the Bill of Rights, as depicted by 
     Herblock in the July 2 Post, the only thing this amendment 
     does is to outlaw desecration of the flag, which only by the 
     most expansive interpretation of the First Amendment could 
     have been established as legally permissible in the first 
     place. It in no way affects anything else and should be 
     enacted forthwith.

  This individual displayed more common sense and understanding on this 
matter than one will find in editorials, cartoons, and pundits' 
offerings in the Washington Post, and other illustrious journalistic 
pieces and publications.


                         Response to Criticisms

  Let me give a response to some of the criticisms. The committee 
report fully addresses the legal and other arguments against the 
amendment. And I urge my colleagues to review it. I am prepared to 
address some of them later in the debate if I had to. Let me just make 
a few comments now.
  In my view, this amendment, granting Congress and the States power to 
prohibit physical desecration of the flag, does not amend the first 
amendment. I believe the flag protection amendment overturns two 
Supreme Court decisions which have misconstrued the first amendment.
  The first amendment's guarantee of freedom of speech has never been 
deemed absolute. Libel is not protected under the first amendment. 
Obscenity is not protected under the first amendment. Fighting words 
which provoke violence or breaches of the peace are not protected under 
the first amendment. A person cannot blare out his or her political 
views at 2 o'clock in the morning in a residential neighborhood and 
claim first amendment protection. 

[[Page S 18042]]

  The view that the first amendment does not disable Congress and the 
States from prohibiting physical desecration of the flag has been 
shared across a wide spectrum.
  Chief Justice Earl Warren wrote, ``I believe that the states and the 
Federal government do have the power to protect the flag from acts of 
desecration and disgrace . . .'' [Street v. New York, 394 U.S. 576, 605 
(dissenting)]. Justice Hugo Black--generally regarded as a first 
amendment absolutist--stated, ``It passes my belief that anything in 
the Federal Constitution bars a state from making the deliberate 
burning of the American flag an offense.'' [Id. at 610 (dissenting)]. 
Justice Abe Fortas wrote, ``[T]he States and the Federal government 
have the power to protect the flag from acts of desecration committed 
in public . . .'' [Id. at 615 (dissenting)]. According to Assistant 
Attorney General Dellinger, President Clinton agrees with Justice 
Black, but still opposes any amendment.
  It is not the first amendment which protects physical desecration of 
the American flag. The Supreme Court misinterpreted the text of the 
first amendment, ignored 200 years of history, and superimposed its own 
evolving theories of the first amendment in 1989 in Texas versus 
Johnson. That just 20 years earlier civil libertarians such as Earl 
Warren and Abe Fortas, and a first amendment absolutist such as Hugo 
Black, took it as elementary that flag desecration laws are 
constitutional is a measure of how far the Supreme Court has moved in 
this area.

  We have had flag desecration statutes for many decades--yet the 
avenues available for dissent have gotten larger, not smaller, over 
time. And I would agree with that. Indeed, I would point out that 
during the time these laws were first enacted in the 19th century, 
freedom of speech in general has been enlarged: the first amendment has 
been made applicable to the states via the 14th Amendment's due process 
clause [Fiske v. Kansas, 274 U.S. 380 (1927)]; commercial speech has 
been given protection [Virginia State Board of Pharmacy v. Virginia 
Citizens Consumer Council, 425 U.S. 748 (1976)]; the public forum 
doctrine appeared in 1939 [Hague v. CIO, 370 U.S. 496 (1939)]; indeed, 
private shopping centers must make their property available for 
dissemination of literature [Pruneyard Shopping Center v. Robins, 447 
U.S. 74 (1980)]; the overbreadth doctrine developed in 1940 [Thornhill 
v. Alabama, 310 U.S. 88 (1940)]; and the void for vagueness doctrine 
developed in 1972 [Papachristou v. Jacksonville, 405 U.S. 156 (1972)].
  Yet, to listen to some of the critics of this amendment, one would 
believe ratification of the flag protection amendment would herald a 
new Dark Age.


                         Need for the Amendment

  Let me also address the underlying need for the amendment. The 
Clinton administration testified that, in light of what it refers to as 
``only a few isolated instances [of flag burning], the flag is amply 
protected by its unique stature as an embodiment of national unity and 
ideals.'' With all due respect, I find that comment clearly wrong.
  First, aside from the number of flag desecrations, our very refusal 
to take action to protect the American flag clearly devalues it. Our 
acquiescence in the Supreme Court's decisions reduces the flag's 
symbolic value. As a practical matter, the effect, however unintended, 
of our acquiescence equates the flag with a rag, at least as a matter 
of law, no matter what we feel in our hearts. Anyone in this country 
can buy a rag and the American flag and burn them both to dramatize a 
viewpoint. The law currently treats the two acts as the same. How one 
can say that this legal state of affairs does not devalue the flag is 
beyond me.
  This concern is shared by others. Justice John Paul Stevens said in 
his Johnson dissent:

       . . . in my considered judgment, sanctioning the public 
     desecration of the flag will tarnish its value . . . That 
     tarnish is not justified by the trivial burden on free 
     expression occasioned by requiring that an available 
     alternative mode of expression, including uttering words 
     critical of the flag . . . be employed. [491 U.S. at 437].

  Pro. Richard Parker of Harvard Law School testified:

       ``If it is permissible not just to heap verbal contempt on 
     the flag, but to burn it, rip it and smear it with 
     excrement--if such behavior is not only permitted in 
     practice, but protected in law by the Supreme Court--then the 
     flag is already decaying as the symbol of our aspiration to 
     the unity underlying our freedom. The flag we fly in 
     response is no longer the same thing. We are told . . . 
     that someone can desecrate ``a'' flag but not ``the'' 
     flag. To that, I simply say: Untrue. This is precisely the 
     way that general symbols like general values are trashed, 
     particular step by particular step. This is the way, 
     imperceptibly, that commitments and ideals are lost.''

  I think Professor Parker's comments are pretty apropos here.
  Indeed, disrespectful physical treatment of the flag need not involve 
protest. Just a short time ago, I saw a newsclip about a motorist at a 
gas station using an American flag to wipe the car's dipstick. A 
veteran called it to the police's attention but, of course, the 
individual cannot be prosecuted today. He can keep using it as he has, 
or perhaps he will next use it to wash his car.
  Moreover, as a simple matter of law and reality, the flag is not 
protected from those who would burn, deface, trample, defile, or 
otherwise physically desecrate it.
  Further, whether the 45-plus flags which were publicly reported 
desecrated between 1990 and 1994, and those which have occurred this 
year, represent too small a problem does not turn on the sheer number 
of these desecrations alone. When a flag desecration is reported in 
local print, radio, and television media, potentially millions, and if 
reported in the national media, tens upon tens of millions of people, 
see or read or learn of these desecrations. How do my colleagues think, 
Rose Lee, for example, feels when she sees a flag desecration in 
California reported in the media? The impact is far greater than the 
number of flag desecrations.
  One might also ask, even if espionage occurs rarely, should we have 
no statutes outlawing it? Arrests for treason are rare--but the crime 
is set out right there in the Constitution and in our statutes.


                           No Slippery Slope

  Mr. President, there is absolutely no slippery slope here. The 
amendment is limited to authorizing States and the Federal Government 
to prohibit physical desecration of only the American flag. It does not 
suppress viewpoints, nor does it regulate any means of expression aside 
from physical desecration of the flag. It serves as no precedent for 
any other legislation or constitutional amendment on any other subject 
or mode of conduct, precisely because the flag is unique.
  Some critics of the amendment ask, is our flag so fragile as to 
require legal protection? I have tried to explain why our national 
symbol should be legally protected. The better question is this: is our 
ability to express views so fragile in this country as to be unable to 
withstand the withdrawal of the flag from physical desecration? Of 
course not.
  Ideas have many avenues of expression, including the use of marches, 
rallies, picketing, leaflets, placards, bullhorns, and so very much 
more.
  Even one of the opponents of the amendment testifying at the 
subcommittee hearing, Bruce Fein, the conservative analyst, described 
the amendment as ``a submicroscopic encroachment on free expression . . 
.'' in response to written questions. A submicroscopic approach.

  Pro. Cass M. Sunstein of the University of Chicago Law School, a 
vigorous opponent of the amendment, conceded:

       There are reasons to think that as the basic symbol of 
     nationhood the flag is sui generis and legitimately stands 
     alone. Moreover, constitutional protection of the flag would 
     prohibit only one, relatively unusual form of protest. 
     Multiple other forms would remain available.

  The administration's witness agreed with these remarks, in response 
to my written questions. Indeed, I think Professor Sunstein understated 
his first point--there is no doubt the flag stands alone as a national 
symbol.
  Even if, contrary to my view, one agreed that the Johnson and Eichman 
cases were correctly decided under prior precedents, one could still 
support this amendment--if one believes protection of the flag from 
physical desecration is an important enough value.


                   Content-Neutral Amendment is Wrong

  A few critics of the pending amendment believe that a constitutional 
amendment either must make illegal 

[[Page S 18043]]
all physical impairments of the integrity of the flag, such as by 
burning or mutilating, or that no physical desecration of the flag 
should be illegal. This is the approach of my friend from Delaware, who 
will offer such an amendment. This all-or-nothing approach to our 
fundamental governing document flies in the face of nearly a century of 
legislative protection of the flag. It is also wholly impractical.
  In order to be truly content neutral, such an amendment must have no 
exceptions, even for the respectful disposal of a worn or soiled flag. 
Once such an exception is allowed, the veneer of content neutrality is 
stripped away. The Supreme Court in Johnson acknowledged this. A 
content-neutral amendment would forbid an American combat veteran from 
taking an American flag flown in battle and having printed on it the 
name of his unit and location of specific battles, in honor of his 
unit, the service his fellow soldiers, and the memory of the lost.
  Then Assistant Attorney General for Legal Counsel William P. Barr 
testified before the Senate Judiciary Committee August 1, 1989 and 
brought a certain American flag with him. He said:

       Now let me give you an example of . . . the kind of result 
     that we get under the [content-neutral approach]. This is the 
     actual flag carried in San Juan Hill. It was carried by the 
     lead unit, the 13th Regiment U.S. Infantry, and they proudly 
     emblazon their name right across the flag . . . 1,078 
     Americans died following this flag up San Juan Hill . . . 
     Under [a content-neutral approach], you can't have regiments 
     put their name on the flag, that's defacement . . . 
     [Testimony, Assistant Attorney General William P. Barr, 
     August 1, 1989, at 68].

  We do wish to empower Congress and the States to prohibit the 
contemptuous or disrespectful physical treatment of the flag. We do not 
wish to compel Congress and the States to penalize respectful treatment 
of the flag. Such a so-called content-neutral amendment would place a 
straitjacket on the American people and deny them the right to protect 
the flag in the manner they have traditionally protected it.
  A constitutional amendment which, in our fundamental law, would treat 
the placing of the name of a military unit on a flag as the equivalent 
of placing the words ``Down with the fascist Federal Government'' or 
racist remarks on the flag is not what the popular movement for 
protecting the flag is all about. I respectfully submit that such an 
approach ignores distinctions well understood by tens of millions of 
Americans.
  Moreover, never in the 204 years of the first amendment has the free 
speech clause been construed as totally content neutral. For example, 
speech criticizing official conduct of a public official may be legally 
penalized if it is known to be false, or made in utter, reckless 
disregard for the truth, and damages the official's reputation. And 
this is actual speech, not action or conduct as in the case of 
desecrating the flag. Moreover, one can express views at city hall, but 
if one does so obscenely, one can be arrested. This is not content 
neutrality. Indeed, I think it is fair to liken flag desecration to 
obscenity.

  Of course, any law enacted pursuant to the pending amendment cannot 
bar physical desecration of the flag by one political party and permit 
it by the other, or ban its physical desecration by those in opposition 
to a government policy, but not by those who support the policy. As 
with other parts of the Constitution, the amendment will be interpreted 
in harmony with other provisions of the Constitution. Thus, a State 
cannot favor a flag desecrator who burns the flag protesting the 
Government's failure to topple Saddam Hussein over the flag desecrator 
complaining about American participation in the gulf war in the first 
place. The first amendment's prohibition on viewpoint discrimination 
will apply to statutes enacted under the pending amendment.


                    Ridiculous, Overblown Arguments

  One more thing about this debate, Mr. President. I have rarely heard 
more overblown, ridiculous arguments made against a measure as I have 
heard regarding this amendment, which simply restores a power to the 
people they had held for 200 years, and exercised for about 100 years.
  There are colleagues of mine on the Judiciary Committee who actually 
make the absurd suggestion that this amendment blurs the distinction 
between a free country and a tyranny. Tell that to the Gold Star Wives. 
Tell that to the Veterans of Foreign Wars. Forget about the fact that 
during the nearly 100 years that 48 States and Congress were adopting 
flag desecration statutes, we seemed, somehow, to avoid the descent 
into tyranny. Ironically, freedom of speech actually expanded in this 
country as I said. These colleagues actually make the ridiculous, 
nonsensical, thinly veiled suggestions that legal protection of the 
American flag is somehow similar to the Chinese Communist 
dictatorship's execution of dissidents in 1989, and that legal 
protection of the flag somehow makes us more like a Communist 
dictatorship. If you do not believe me, Mr. President, read their views 
in the committee report on page 74 and at footnote 11. Listening to 
some of these critics, one would think enactment of the pending 
amendment would curtail the ability of dissenters to be heard. One 
shudders to think about their lackadaisical attitude toward repression 
in America during all the years before the Supreme Court, in 1989, 
saved America from its decline and fall into totalitarianism. After 
all, notwithstanding the solemn fears they express, I am unaware that 
those colleagues in the Senate lifted one finger to plug this gaping 
hole in our freedom by trying to repeal the federal flag protection 
statute before 1989.
  Some of my colleagues actually raise the utterly groundless, 
inherently unbelievable claim that the pending amendment could 
authorize a statute prohibiting the flying of the flag over a brothel. 
You do not believe me, Mr. President? You'll find that little gem on 
page 77 of the committee report. The things some of our colleagues 
worry about.
  It is a good thing my colleagues expressing these views were not 
Members of the first Congress. Mr. President, given their concern about 
flags over brothels, I can only imagine the angst my colleagues would 
have expressed about the scope of the proposed fourth amendment's 
protections against unreasonable searches and seizures. I wonder how 
the phrase due process of law in the fifth amendment would have fared. 
The point is this, as we explain in the committee report: there is no 
cause to fear the terms of this amendment.
  I urge my colleagues not to apply a higher standard to an amendment 
protecting the flag than the Framers themselves applied to the Bill of 
Rights. The words of this amendment are at least as precise, if not 
more so, than many terms in the Bill of Rights. And keep in mind what 
my colleague Senator Heflin has repeatedly said: This amendment does 
not prohibit any conduct. There will be implementing legislation. And 
such legislation will have to be sufficiently specific to withstand due 
process scrutiny. This amendment just says that the States and the 
Congress can determine that people cannot desecrate our flag.
  Let me just end this by saying that some have wondered why we are 
putting forth this enormous effort to enact this amendment to protect 
the flag, a so-called mere symbol. The answer is simple. The nearly 
mystical connection between the American people and Old Glory really is 
that strong. That bond between our constituents and the flag is the 
bond on which our entire effort rests, the bond from which it draws its 
strength. That bond will keep this movement alive until a flag 
protection amendment is ratified, no mistake about it. We are fighting 
for the very values that the vast majority of the American people fear 
we are losing in this country.
  This is an important amendment, as I think all constitutional 
amendments must and should be. It is an amendment that has been simple 
on its face. This is an amendment that we believe at least 66 Senators 
ought to vote for. In fact, I believe all 99 of us currently sitting in 
this body ought to vote for it.
  Having said that, I am somewhat surprised that, needing only 34 votes 
to defeat this amendment, there would be those on the other side who 
would filibuster even the bringing up of this amendment on the floor. 
In fact, I would be surprised if they would filibuster the amendment 
itself once we defeat them on the motion to proceed. I cannot imagine 
why anybody, needing only 34 votes to defeat this, would 

[[Page S 18044]]
filibuster where you need 41 votes in order to stop the debate.
  I really hope, with all my heart, that my friends on the other side 
will realize how important this is to the people of this country and 
will withdraw their filibuster and their efforts to stop the motion to 
proceed and will not filibuster the amendment itself, and will allow it 
to go to a constitutional vote, where all they have to get are 34 votes 
to defeat it. We have to get 66 votes on a constitutional amendment, 
and that is as it should be. Constitutional amendments should be very 
difficult to enact.
  Our basic document is not a piece of legislation that can be amended 
at will. It requires a very long, arduous, difficult process. I am 
hopeful that we will have 66 votes on this amendment, or more; but if 
we do not, everybody here is going to be put on notice right here and 
now that this will be brought back until we do.
  Mr. President, I thank my colleague for allowing me to make this 
lengthy but important statement on this issue.
  I yield the floor back to him.
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER (Mr. Kyl). The Senator from New Mexico is 
recognized.
  Mr. BINGAMAN. Mr. President, I understand that the Senator from 
Alabama, who is a cosponsor of the flag burning amendment, is somewhere 
nearby and wants to give a statement at some point here. Obviously, I 
will be glad to defer to him when he wants to make that statement.
  Let me just state again what I said at the beginning of this 
discussion. That is, my objection to proceeding with the amendment is 
not because I think the Senate should not be able to vote on this 
issue. I do not support the amendment; I did not support it when it 
came up before. But I do not object to us going ahead and getting a 
vote. But I do believe that before we move to amend the Constitution, 
as is proposed here, we need to tend to the business of carrying out 
our duties as they are set out in the Constitution. Those duties are 
pretty clear, and we in the Senate have some very specific duties to 
carry out. Article II, section 2 of the Constitution says:

       He shall have Power, by and with the Advice and Consent of 
     the Senate, to make Treaties, provided two-thirds of the 
     Senators present concur . . .

  So we have a responsibility to pass on treaties.

       . . . and he shall nominate, and by and with the Advice and 
     Consent of the Senate, shall appoint Ambassadors, other 
     public Ministers and Consuls, Judges of the Supreme Court, 
     and all other Officers of the United States . . .

  So my position is, Mr. President, we ought to go about doing that 
which the Constitution requires of us before we proceed to amend the 
Constitution. Or we should at least get agreement as to a date when we 
are going to do that which the Constitution requires of us; that is, 
passing on the President's nomination for these ambassadorial posts.
  I have this list here. It is a long list, which I referred to 
earlier. I think it is one that clearly deserves our attention. As I 
pointed out in my earlier statement, it represents the people in the 
countries that these ambassadors will serve in, which represent about a 
third of the world's population. Why should we in the Senate be able 
to, day after day, week after week, look the other way and say it is 
not our responsibility, it is not our problem? It is our responsibility 
under the Constitution, Mr. President; it is our problem, and we need 
to get about the business of dealing with it.
  Mr. President, I think it is interesting that this is coming up in 
this context. We are constantly hearing about the respect that we all 
have for the Constitution. I do not doubt that respect. I think, 
clearly, anyone who devotes his life to public service is demonstrating 
a real commitment to this country.
  We all swear to an oath of office when we are sworn in here in the 
Senate, and it is an interesting oath, which I would like to read for 
people, just to refresh people's memory. The question which the 
Presiding Officer asks each of us is:

       Do you solemnly swear that you will support and defend the 
     Constitution of the United States against all enemies, 
     foreign and domestic, that you will bear true faith and 
     allegiance to the same, that you take this obligation freely 
     without any mental reservation or purpose of evasion . . .

  Here is the important part, I think, for purposes of this discussion, 
Mr. President.

       . . . and that you will well and faithfully discharge the 
     duties of the office which you are about to enter, so help 
     you God.

  Mr. President, well and faithfully discharging the duties of the 
office of a U.S. Senator today includes voting on the Ambassadors that 
the President has nominated to serve in these countries. Well and 
faithfully discharging the duties of the office of a U.S. Senator today 
means voting on the START II treaty, which has been here languishing in 
the Senate now for many months. So that is the point that I am trying 
to make.
  Since the Senator from Alabama is not here wishing to speak, let me 
go ahead and make a few other points about, first of all, the START II 
treaty. START II is the second Strategic Arms Reduction Treaty. It was 
signed by President Bush on January 3, 1993, shortly before he left 
office. It is a landmark agreement. It will reduce nuclear arsenals in 
both the United States and the former Soviet Union by close to two-
thirds.
  This is not a minor item, Mr. President. This is not some detail that 
we have not gotten around to dealing with. This will reduce the nuclear 
arsenals in both the United States and the former Soviet Union by close 
to two-thirds.
  START II is a vital successor to the first START Treaty, which was 
negotiated by President Ronald Reagan. Not only does START II reduce 
nuclear stockpiles in both Russia and the United States to between 
3,000 to 3,500 warheads each, it also eliminates multiple independent 
reentry vehicles, MIRV's. Policymakers and military officials in both 
parties agree that START II is vital to U.S. strategic interests.
  Mr. President, I know we are in a very major discussion and debate, 
nationally, about whether the United States should be involved in the 
NATO activity in Bosnia. I think that is important. I think it is a 
very important military initiative, diplomatic initiative that this 
administration is involved in. But I would say that at least as 
important is following through and ratifying START II and then seeing 
that it is properly implemented.
  When the history of this century is written, Mr. President, our 
ability to move from the cold war down to a period where there is less 
threat and to a situation where less nuclear threat is going to be a 
determining factor in whether or not we have carried out our 
stewardship properly, I think it is the height of folly for us to lose 
sight of that important need and constantly be focusing on other 
matters here that are not time sensitive.
  As I said earlier in the discussion, whether you believe that we 
ought to have a flag burning amendment or whether you disagree about 
the flag burning amendment, everyone has to concede that this is not an 
urgent matter.
  We have been a nation now for 206 years. We have never had a flag 
burning amendment to the Constitution. There is not an epidemic of flag 
burning going on in this country, Mr. President.
  I have scoured the newspapers to try to find examples of people out 
there burning flags. In our history there have been some examples. 
Clearly, it is not something that is urgent and that needs dealing with 
this week here in the U.S. Senate.
  These other matters in my opinion do have some urgency about them. I 
will get into that in more detail later in the discussion.
  Let me give some quotations about the START II treaty from various 
leaders in this country, former leaders, present leaders. President 
George Bush made the statement, ``The START II treaty is clearly in the 
interests of the United States and represents a watershed in our 
efforts to stabilize the nuclear balance further reduce strategic 
offensive arms.''
  Senator Jesse Helms, chairman of the Senate Foreign Affairs Committee 
said, on February 3 of this year, ``I am persuaded that the 3,000 to 
3,500 nuclear weapons allowed Russia and the United States in this 
START treaty does meet reasonable standards of safety.''
  The Heritage Foundation has a briefing book they provide to new 
Members 

[[Page S 18045]]
of Congress. That briefing book for this 104th Congress had in it a 
statement that said, ``The START II treaty should serve U.S. interests 
and should be approved for ratification.'' That is the Heritage 
Foundation, one of the more conservative think tanks here in our 
Nation's Capital.
  Former Chairman of the Joint Chiefs of Staff, Colin Powell, said, 
``With a U.S. force structure of about 3,500 nuclear weapons we have 
the capability to deter any actor in the other capital no matter what 
he has at his disposal.'' That was in July 1992.
  The present Chairman of the Joint Chiefs of Staff who is testifying 
at this very moment in the Armed Services Committee, as the Presiding 
Officer well knows, said on May 25 of this year, ``I strongly urge 
prompt Senate advice and consent on the ratification of START II.''
  Senator Richard Lugar on October of 1992 said, ``If new unfriendly 
regimes come to power, we want those regimes to be legally obligated to 
observe START limits.''
  Senator John McCain, who serves with us here and with great 
distinction on the Armed Services Committee, said on January 2, 1993, 
``With the conclusion of START II, the threat of nuclear war has been 
greatly reduced and our relationship with the former Soviet Union 
reestablished on a more secure basis.''
  Now, obviously, Senator McCain was assuming we would ratify that 
treaty. If we fail to do so I think he may want to rethink that 
statement.
  The former Secretary of State, Lawrence Eagleburger, made the 
following statement on June 17 of 1993:

       No relationship is more important to the long-term security 
     of the United States than our strategic relationship with 
     Russia. Despite the new spirit of cooperation between us, 
     Russia remains the only nation on Earth with the capability 
     to devastate the United States. Any arms control agreement, 
     even one as sweeping at START II, represents only one element 
     of that relationship. While arms control is only one element 
     of our relationship it remains an important one. START II, 
     along with the initial START treaty remains overwhelmingly in 
     our interest as we move into the post-cold war era. It offers 
     enhanced stability, fosters transparency and openness and 
     sounds the death knell for the first-strike strategies of a 
     bygone era.

  That is a quotation by former Secretary of State Lawrence 
Eagleburger.
  Finally, let me give a quotation by Lynton Brooks who was the chief 
negotiator of START II. He said on May 18, 1993--and I point out that 
was shortly after the first hearing on START II by the Senate Foreign 
Affairs Committee on this chronology. This is 1993 I am talking about, 
2\1/2\ years ago, Mr. President. Lynton Brooks, our chief negotiator of 
START II said:

       START II completes the work begun by START I. Building on 
     the 9-year effort that led to the first START treaty, START 
     II drastically reduced strategic defensive arms and 
     restructures the remaining forces in a stabilizing manner 
     appropriate for the post-cold war world. Along with its 
     predecessor companion, START II represents a codification of 
     the new nonconfrontational relationship between the United 
     States and the Russian federation. In short, START II is 
     another major step toward a 21st century characterized by 
     reduced threat and increased stability.

  That is an indication, Mr. President, that there is very strong 
bipartisan support for the ratification of this treaty. If this was an 
issue that there was great division on I would probably not be here 
today urging that we get a time certain to vote on START II.
  Leaders on both sides of the aisle have indicated the importance of 
moving ahead. I can see no justification for us continuing to deal with 
matters that are less time sensitive such as the proposed 
constitutional amendment while this matter and the confirmation of 
these ambassadorial nominations continues to be delayed.
  Let me also put a few more things in the Record or call then to the 
attention of my colleagues here, Mr. President. We have a letter here 
from Jennifer Weeks who is the Arms Control and International Security 
Program Director of the Union of Concerned Scientists. This is a letter 
dated November 9 of this year to Senators.
  I am sure that the Presiding Officer and each Senator received a 
similar letter. It says:

       I am writing to bring to your attention the article by 
     Russian ambassador Yuri K. Nazarkin on the START II nuclear 
     reduction treaty which is printed on the reverse side of this 
     page. START II currently pending in the Senate Foreign 
     Affairs Committee and the Russian Duma would reduce Russia's 
     deployed strategic nuclear arsenal by 5,000 warheads. It also 
     would eliminate all of Russia's 10 warhead SS-18 missiles, a 
     longstanding U.S. policy goal.

  But as Nazarkin points out, if the Senate does not act promptly to 
ratify START II, there is little hope that Russia will approve the 
treaty. START II was submitted to the Senate by President Bush. It has 
strong bipartisan support and the Union of Concerned Scientists 
strongly support START II and urges the Senate to move swiftly to 
ratify this crucial treaty.
  I will not read the full text of that article, Mr. President, but let 
me just quote from Ambassador Nazarkin a couple of statements he made:

       START II represents a real opportunity to lower the nuclear 
     danger that plagued our sense of security during the cold 
     war. Once the agreement is ratified and enters into force 
     American and Russian strategic nuclear forces are to be 
     reduced by about 70 percent from their cold war peaks. It is 
     certain that further delay on the American side will be used 
     in Russia as an argument to defer ratification.

  Now Ambassador Nazarkin headed the Soviet delegation to the 
conference on disarmament in 1987 through 1989 and the nuclear and 
space talks including START from 1989 to 1991 and participated in the 
preparation of START II. He is the senior adviser to the Moscow Center 
of the Carnegie Endowment for International Peace.
  Mr. President, let me just be a little more precise about how we get 
the reductions or what reductions are called for in START II. The START 
II treaty will eliminate, according to this information I have here--he 
cited a figure of 5,000. This information is that it will eliminate 
around 4,000 strategic nuclear weapons from the arsenal of the former 
Soviet Union. This includes the centerpiece of the Russian arsenal 
which is the SS-18. Any intercontinental ballistic missile which 
carries more than a single warhead will be eliminated under the 
treaty. The following is a list of delivery systems and their payloads, 
which are expected to be destroyed under the treaty. Let me go through 
this list very briefly so people understand what we are discussing 
here.

  The SS-18. I think those who have followed defense issues and our 
arms competition with Russia over the last several decades know the 
importance of the SS-18 as part of the threat that we face. This treaty 
would eliminate 188 launchers and 1,880 warheads of that type.
  The SS-19. This treaty would eliminate 170 launchers and 1,020 
warheads of that type.
  The SS-24, 46 launchers, 460 warheads.
  SLBM's, sea-launched ballistic missiles. We would see 600 of those 
eliminated.
  Submarine-launched ballistic missiles. As I understand it, the limit 
there is 1,750 submarine-launched ballistic missiles. The current 
Russian arsenal is estimated at about 2,350.
  So, it is time, in my view, that we proceed to ratify this treaty. It 
is time, certainly, that we at least get a chance to vote on it. Some 
of my colleagues here, who are not on the floor at this moment, have 
spoken out recently in favor of action on START II. Let me just quote 
some of them, because I have been quoting a great many others who are 
not here in the Senate. Let me just quote some of those who are here 
and indicate my agreement with their statements.
  Senator Lugar, on October 31 of this year, talked about both the 
Chemical Weapons Convention and START II.
  Senator Nunn, on October 31, said, ``We must also make maximum use of 
arms control agreements such as START II and the international treaties 
and conventions such as the Non-Proliferation Treaty, the Biological 
Weapons Convention, and the Chemical Weapons Convention.''
  Mr. President, I should clarify, for anybody who is interested, that 
I am not here insisting that we get a time certain to vote on the 
Chemical Weapons Convention. I do believe it would be advisable for us 
to move quickly to consider that, but there are some questions that 
have been raised. I understand the chairman of the Foreign Relations 
Committee wishes to have additional hearings and explore those 
questions, and I certainly wish to defer to 

[[Page S 18046]]
his judgment on that and do not, at this time, believe it is essential 
that the Senate try to get to this issue. My concern on START II is 
that the hearings have concluded. They concluded 7 months ago and we 
still have not been able to get the issue before the Senate for a vote.
  On October 31 of this year, Senator Sarbanes made the following 
statement. He said, referring to the chairman of the Foreign Relations 
Committee:

       The chairman is refusing to take action on a number of 
     other very important matters before the committee, a number 
     of very significant treaties. We have completed hearings on 
     the START II treaty. Agreement has been reached on all the 
     substantive issues related to that treaty. No business 
     meeting has been scheduled to consider it.

  Senator Feinstein spoke on the 1st of November this last month and 
said:

       The START II treaty, signed by the Bush administration and 
     not yet ratified by the Congress, is the farthest reaching 
     arms reduction treaty ever signed in the history of this 
     Nation. I know of no significant opposition to the 
     ratification of the START II treaty. Nonetheless, the 
     committee is unable to begin consideration of it. This is 
     wrong.

  There is a group that calls themselves the U.S. START II Committee. 
They have sent a letter, dated November 13, to all Senators. Let me 
just read that letter into the Record in case some Senators have not 
had a chance to see that. It says:

       Dear Senator: The United States Senate is about to adjourn 
     without addressing the single most important issue of 
     international affairs. Worse, a lost opportunity now may mean 
     that the chance for nuclear arms control could be postponed 
     for a decade.
       The Senate needs to ratify START II. This is why what we 
     believe to be a distinguished group of citizens, experts in 
     arms control, with both military and foreign policy 
     experience, has joined together to urge Senate action yet 
     this fall.
       We all know the history of START II and what it does: the 
     single most dramatic reduction in the nuclear arsenals of 
     both the United States and the Russian Federation. Another 
     significant step back from the history of the relations 
     between the two countries for the last forty-five years.
       Equally important, potentially, the treaty serves as an 
     example to other countries seeking to acquire this nuclear 
     capability that there is an alternative to ownership of 
     weapons of mass destruction: disarmament.
       Our conversations with Russian leaders have made it plain 
     that if we fail to ratify this year, there is a significant 
     reduction in the likelihood that Russia will act on this 
     treaty next year. Years of work that have spanned both 
     Republican and Democratic Administrations, years of a 
     genuinely bi-partisan effort, will be lost.
       The last speech that then Prime Minister Winston Churchill 
     gave to the House of Commons foresaw this day. The Prime 
     Minister, confronting a cold and hostile Soviet Union, with 
     both worlds then confronting each other with missiles and 
     bombs, stated that ``someday we will be allowed to emerge 
     from the terrible era in which we are required to reside.''
       We urge the Senate and you, individually, to take up START 
     II before adjournment and ratify the treaty.
           Sincerely,
                                       U.S. Committee for START II

     Dave Nagle,
       Chair, Freedom Support Coalition.
     Lindsay Mattison,
       Director, International Center

  Mr. President, one of the things we always look at here in the 
Congress, perhaps too much in my view, is to see what the public 
reaction is. So we do have some indication of what the public thinks 
about the whole notion of START II. Mr. President, 68.4 percent of the 
public that was polled by a national security news service poll of over 
1,000 Americans, which was conducted between April 21 and 25 of this 
year--68 percent thought that the U.S. Senate should ratify START II, 
20.1 percent opposed ratification, another 11 percent expressed no 
opinion.
  A similar question that was asked in that same poll showed that 82.3 
percent of Americans believe that the United States and Russia should 
agree to negotiate deep reductions in their nuclear weapons. Only 11 
percent opposed doing so, while 6 percent expressed no opinion on that 
subject.
  So this is not just a group of academics who think we should get on 
with the business of reducing the nuclear arsenal in Russia as well as 
here. I would say, the START II treaty is very well designed to bring 
about major reductions on the Russian side. This is not a unilateral 
disarmament kind of treaty. There is nobody, Republican or Democrat, 
that I have heard, who argues that this treaty is unbalanced in that 
regard. This is a treaty that is very much in our interest and very 
much in the Soviet interest as well.
  Mr. President, let me also just refer to some of the editorials that 
have been written on this subject around the country in recent weeks. 
There is an editorial in the Friday, November 3, edition of the Boston 
Globe. It is entitled ``Two Treaties Held Hostage.'' I will just read 
portions of that for Members.

       During their Presidential terms, Ronald Reagan and George 
     Bush had the good sense to negotiate two arms control 
     treaties crucial to U.S. national security--the Strategic 
     Arms Reduction Treaty, START II, and the Chemical Weapons 
     Convention. Bush and Boris Yeltsin signed the treaty on 
     chemical weapons January 3, and Bush submitted it to the 
     Senate as one of his final acts of statesmanship. It is sad 
     to say that ratification of these two badly needed treaties 
     is being sabotaged by Republican Senators Jesse Helms of 
     North Carolina and Bob Dole of Kansas. Their deliberate 
     thwarting of the ratification process is perverse, not merely 
     because they are undoing the wise work of Republican 
     Commanders in Chief but because their motives seem to be 
     petty and personal and political.

  That is a statement in the editorial, Mr. President, which I do not 
necessarily subscribe to. But I do think it gives the flavor for the 
editorial comment which is out there.
  The Washington Post wrote on the 16th of November ``Poison Gas and 
Sen. Helms'' is the name of their editorial. It goes on with:

       Nearly three years ago, under President Bush, the United 
     States signed a treaty banning chemical weapons, the most 
     powerful comprehensive arms control agreement ever 
     negotiated. It is making no progress toward ratification by 
     this country because the chairman of the Foreign Relations 
     Committee does not like it. Although it was written under 
     American and Republican leadership, there is now a real 
     chance that it could go into operation without American 
     participation.

  They are talking about the Chemical Weapons Convention in that case.
  There is a New York Times editorial dated the 8th of November 
entitled ``Jesse Helms' Hostages.''
  It says:

       Because of the obstinacy of Senator Helms of North 
     Carolina, the United States does not have an Ambassador in 
     Beijing at this time.

  That is an issue I want to address in a few minutes.

       * * * the United States does not have an Ambassador in 
     Beijing at this time and relations with China have reached 
     their most delicate and dangerous point in more than 20 
     years.

  I will at this point go ahead and talk some about the importance of 
getting these ambassadors appointed, Mr. President.
  I had the good fortune to travel to China, to Korea, and to Japan 
earlier this year. I did so on a trip under the auspices of the Armed 
Services Committee, and I did so at a time when relations between the 
United States and China were clearly strained. Some of that strain 
remains in that relationship, but some of it, hopefully, has been 
reduced. But one thing I was struck with on the trip to Beijing and to 
China was that this Nation, which is, of course, the most populous 
Nation in the world, has a very fast growing economy, has a tremendous 
influence over everything that happens in the Far East and, of course, 
much that happens in other parts of the world as well. We have no 
Ambassador. When you go to our Embassy there, the personnel there do 
their best to accommodate your needs, to keep the doors open, and to 
keep business going as usual. But the simple fact is we have no 
spokesman there representing our administration, our Government, our 
country, our President. That is a detriment to us. It has been a 
detriment to us for several months now.
  I think it is particularly unfortunate myself--this is just a 
personal view of mine--that we are not going ahead and voting on the 
ambassadorship for China, because one of our former colleagues was 
nominated by the President to serve in that capacity. He has had 
hearings. I believe he has strong bipartisan support for serving in 
that position, as he should have because he had a very distinguished 
career here in the Senate. But I can tell you that the issues that we 
tried to address there could much better be addressed if we had a 
Presidential appointee representing us in our Embassy in Beijing. This 
is too important a job and too important a position for us to just 
leave vacant month after month, week after 

[[Page S 18047]]
week, on the assumption that it does not really matter. It needs to 
matter to us. It matters very much, I believe, to the executive branch 
of our Government. I believe it matters a great deal to the Government 
officials that might be in Beijing.
  I urged them to return their Ambassador. Relations in August when I 
was in Beijing were strained to such an extent that the Chinese 
Government had withdrawn their American Ambassador, asked their 
Ambassador to come back to China for a period of time. My urging to the 
Foreign Minister and to other Chinese officials I spoke to was that 
they return their Ambassador to Washington and that they signal to our 
Government as quickly as possible that they would like us to move ahead 
with the appointment and the confirmation of Jim Sasser as our 
Government's representative and Ambassador in Beijing.
  I would say to their credit--I do not know; I am sure they had 
urgings from a great many other sources and a great many other 
individuals--but to their credit, in response to whatever set of 
circumstances, they went ahead and did exactly what I was urging them 
to do and what I am sure others were urging them to do; that is, they 
returned their Ambassador to Washington in order to improve the lines 
of communication, and they signaled to our administration that they 
would like the administration to go ahead and appoint Senator Sasser to 
this important position.
  The administration, of course, followed through quickly indicating 
that Senator Sasser was their nominee. The hearings were held. We now 
wait. We now wait for some additional action presumably.
  According to the chart which I have here, Mr. President, the 
nomination was sent to the Senate on the 25th of September. The reason 
I think it is important we raise this issue this morning is that the 
Congress is approaching the end of its actions in the first session of 
the 104th Congress. When we do adjourn that first session of the 104th 
Congress, it will be clearly several weeks before we begin again in the 
new year to transact business here in the Senate. If we do not get this 
matter dealt with now, if we do not get a ratification of not only 
Senator Sasser as the nominee to serve in China, but if we do not get a 
ratification of each of these, if we do not go ahead and approve the 
nominations for each of these important countries, it will clearly be 
next spring before any action will be taken by the Senate.
  I think that is in derogation of our duties, Mr. President. I think 
we have a duty by virtue of our position as Senators to go ahead and 
pass judgment on the nominees that the President sends forward. If 
people want to vote no, I have no problem with that. Everyone gets 
elected to vote his or her conscience. If people want to come on the 
Senate floor and vote against any of these nominees, I think they 
should clearly do that. My only point is we need to have an opportunity 
to express the will of the Senate and get on with it. If these nominees 
are acceptable to a majority of Senators, we should approve them. If 
these nominees are not acceptable to a majority of Senators, we should 
disapprove them and allow the administration to appoint an alternative 
to serve in these important positions.
  Let me talk a little about this trip to Asia which I did take earlier 
this year and which I felt was a very instructive and informative trip. 
We had three major themes that we were trying to learn about. One was 
regional security issues. There has been great concern raised about 
nuclear tests, about possible missile technology exports from China, 
about concerns about China's defense expenditures and weapons 
modernization and potential threats to other countries in that region.
  There were this summer live ammo military tests in the Taiwan 
Straits. There have been some aggressive behavior in the Spratly 
Islands in the South China Sea.
  Those were all the very real national security issues, regional 
security issues that we wanted to explore, and we did have a chance to 
do that with several governmental officials.
  We also wanted to explore trade because we have an enormous problem 
in our trade relations with China. Anyone who has not paid attention to 
our trade relations with China cannot be adequately informed about our 
trade situation today in the world.
  In 1994, the United States, according to our Government's figures, 
had a trade deficit with China of $29 billion. The anticipated trade 
deficit for this year, 1995, is $36 billion, and the expectation is 
that in 1996, the trade deficit could rise to as high as $50 billion.
  So what we see is that China is fast replacing Japan as the No. 1 
trade problem that the United States has. We had a $60 billion trade 
deficit last year with Japan. Everyone recognizes that that is a 
serious problem. We have had various initiatives to try to deal with 
it. Unfortunately, in the case of China, we are just now beginning to 
awake to the fact that trade is a serious problem. So that was another 
issue we wanted to look at and did get a chance to look at very 
seriously.
  Technology development, that is another area where the policies of 
the Chinese Government I think are ones that we need to be aware of and 
concerned about. Clearly, their Government policy is to target 
particular technologies and develop those technologies, to trade market 
access for technology transfer. That is, if a United States company 
wants access to the Chinese market, they are required to give up 
technology, their rights to technology to get that access.
  Obviously, electro property rights are another major part of the 
technology development issue.
  But let me just talk a little more about the trade problem, Mr. 
President, because I think that perhaps highlights it as much as 
anything.
  I have a good friend who is a co-owner of a company in my home State 
which produces wallets, leather wallets, and they employ about 250 
people in the southern and west mesa side of Albuquerque to make these 
wallets. These jobs are decent paying jobs. They are primarily jobs 
held by women and many of the employees, many of the employees of this 
company are single women who are trying to raise families at the same 
time that they hold these jobs.
  I received a press clipping about 2 or 3 weeks ago indicating that 
that plant in Albuquerque employing those 250 people was about to 
close, that they had announced they would close the plant and those 250 
people, primarily women, who work in that plant--I have visited the 
plant several times--would be out of work, those jobs would be gone.
  So I called my friend and said, what is the problem? Why are we 
having to close the plant in Albuquerque and put 250 women out of work? 
The answer was, we are no longer cost competitive, or part of the 
answer at least was that we are no longer cost competitive with China. 
In China, they will do the work much cheaper. There is no limitation on 
their ability to import into this country the finished products, and 
from just looking at the bottom line there are great incentives 
provided by the Chinese Government for us to locate more and more 
manufacturing there, and those manufacturing jobs there are displacing 
United States manufacturing jobs.
  That is an old story. That is a story that many people have told in 
one form or another around this Senate ever since I have been here over 
the last decade or so.
  We have to find some solutions to that. Part of the solution to that 
is to get serious about our trade deficit with China. We need to 
recognize that this deficit cannot be allowed to grow from $29 to $36 
to $50 billion year after year after year, indefinitely. At the rate of 
growth that is now involved, we are clearly by the end of this decade 
going to have a bigger trade deficit with China than we have with 
Japan. It is not a trade deficit that will go away quickly because they 
are manufacturing, they are displacing manufacturing that goes on today 
in this country. They are manufacturing and selling into this country. 
And we are not able to sell into that country to near the extent we 
should.
  That is a problem that needs to be on the front burner of our U.S. 
Trade Representative's office, on the front burner of the Department of 
Commerce. It is to some extent, but I believe very strongly that it 
would be on the front burner to an even greater extent if we had an 
Ambassador in Beijing who could make the point that this issue is 
important to us, who could represent our Government in meetings in that 


[[Page S 18048]]
capital, and clearly we do ourselves a disservice by not going ahead 
and approving that nomination.
  Mr. President, I have not visited the other countries on this list. I 
believe it is fair to say I visited none of the other countries on this 
list. But there are some very important trading partners and very 
important allies that are also represented. Let me just point out some 
of those.

  In Malaysia, we have a nominee there whose nomination was sent to the 
Senate on June 13. I know of no objection that has been raised to that 
nomination. Here it is nearly December 13, and yet no action. We have 
not been given a chance to vote. If there is an objection, we should 
hear it; we should debate it; and we should vote our conscience one way 
or another. I have not heard of any.
  In Cambodia, we have a nominee there which was sent to the Senate for 
consideration again on June 13. Again, I know of no reason why that 
nominee is not an acceptable nominee. Everything I have heard would 
indicate to me that he is an acceptable nominee, but we have not been 
given a chance to vote.
  In the case of Thailand, again on June 21, a nominee was sent to us 
for the Ambassador to Thailand. I know of no objection that has been 
raised to that nominee being appointed, but we are not doing our duty 
and voting on the issue.
  In the case of Indonesia, there I do want to just make a very short 
statement about our nominee. The President's nominee is Stapleton Roy, 
who I am sure is well known to many Members of this Senate. He was 
formerly the Ambassador representing our country in Beijing. He did a 
superb job. He is eminently respected by everybody in diplomatic 
circles, and I think he is a superb appointment for that position.
  Again, his nomination was sent up on June 28. No action. I have heard 
of no complaints about his appropriateness for the position. In fact, 
everything I have heard is praiseworthy. I had the good fortune to meet 
with Stapleton Roy before we took our trip to China. I say to 
colleagues, he was extremely helpful in pointing out issues that we 
needed to explore with Chinese officials because of his great knowledge 
of United States-China policy and his great experience in that regard.
  In the case of Pakistan, Pakistan is a very important country in the 
world today. We have a great many sensitive issues that we are dealing 
with. We have votes here on the Senate floor. In the case when the 
defense bill was on the floor, I remember several votes about our 
policy toward Pakistan. I think everyone recognizes the importance of 
having an ambassador representing this Government in Pakistan.
  Oman. That is another very important ally of this country in the 
Persian Gulf area. And clearly we need to have an ambassador there. 
That ambassadorial nomination, again, was sent on June 28.
  Lebanon. Our country has a proud and longstanding relationship with 
Lebanon. Many of the outstanding people in my State, leaders in the 
business community, leaders in all the important communities in my 
State have great pride in their Lebanese heritage. We should clearly 
have an ambassador to Lebanon. I have heard nobody suggest that this 
was not the proper ambassador.
  I could go on down the list. Many of these countries are in Africa. 
Again, I have not visited them, but I believe that it is important for 
us to have ambassadors there. South Africa is a clear example. It is 
important enough that our Vice President is there this week on a trip. 
I have had the good fortune, as I know many Senators have, of hearing 
Nelson Mandela speak to joint meetings of the Congress. I believe I 
have heard him now twice on trips that he has taken to this country. 
That relationship between the United States and South Africa is a very 
important relationship during these important years as that nation 
moves out of and renounces apartheid, moves on to an open society. 
Clearly we need to have someone there representing U.S. interests.
  Mr. President, there are many other issues that I could go into, and 
I am glad to as the day proceeds, because I think these are important 
issues that we need to have before us. But at this point I suggest the 
absence of a quorum.
  The PRESIDING OFFICER (Mr. Ashcroft). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HEFLIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HEFLIN. Mr. President, today I rise to show my support for this 
resolution that is designed to prohibit the desecration of the American 
flag. It is clear that a constitutional amendment is necessary to 
ensure the validity of any statute banning flag desecration. Forty-nine 
States have passed memorializing resolutions calling on Congress to 
take this action and forward this issue for consideration to the 
States.
  Earlier this session, this resolution was voted out of the Judiciary 
Committee by a bipartisan vote. I expect the same bipartisan support 
when the whole Senate votes on this resolution.
  The movement for this bill has been unfairly attributed to political 
parties using it for political gain. This is untrue. The impetus for 
this amendment comes from over 85 grassroots organizations, such as the 
Citizens Flag Alliance and the American Legion. These groups have 
worked unceasingly to return to the protection of the flag by means of 
a constitutional amendment. Their work has resulted in 49 State 
legislatures passing resolutions petitioning Congress to act and decide 
this issue through the ratification process.
  There are those who feel that the first amendment rights ought to 
prevail, and they consider that this is a form of protest expression. 
If you look at the Constitution, the first amendment talks about 
freedom of speech and freedom of the press. Both are forms of 
expression, and they make a distinction between speech and press.
  However, regardless of whether there is some distinction in regard to 
various forms of expression, I think we have to look to the history of 
staunch defenders of civil liberties and of the first amendment rights. 
The two names that come to mind the most are Hugo Black and Earl 
Warren. These Supreme Court justices were very clear in their writings 
that the first amendment did not apply to flag desecration. In fact, at 
a Judiciary Committee hearing on this issue, we had the Assistant 
Attorney General for Legal Counsel, the Honorable Walter Dellinger, who 
served as a professor of law at Duke University, testify against the 
amendment.
  He recited, when I raised the issue about Justice Black and Chief 
Justice Warren, how fervently they felt that prohibiting did not 
violate the first amendment. Mr. Dellinger said at the time that he was 
the law clerk for Justice Hugo Black, ``you know, law clerks always 
want to know what goes on in conference.'' So they, therefore, will get 
their ears close to a keyhole and listen in to hear sounds of voices 
from within that sometimes quietly but effectively creep out. He said 
he would put his ear to the keyhole and listen to what was going on in 
conference to try and hear what the Justices were saying in their 
arguments. He recited that there was no question that Hugo Black and 
Earl Warren were fervent in their position, very strong in their 
position that first amendment rights were not being violated by the 
fact that you had statutes which protected the flag.

  They wrote in Street versus New York, a case that was not directly in 
point, and expressed themselves very clearly in regard to this 
particular issue.
  Mr. Dellinger informed us at the hearing that flag desecration 
brought these two eminent jurists together with the opinion that ``the 
States and the Federal Government do have the power to protect the flag 
from acts of desecration and disgrace.''
  The American flag is the symbol that unites us and symbolizes 
everything that we have fought for and died for over the years. 
Honoring the flag is an integral part of American life. The Pledge of 
Allegiance that is given is a pledge of allegiance to the flag. I think 
this is very important to realize, because the flag is the unifier that 
brings together our diverse, pluralistic views.
  We sing the ``Star Spangled Banner,'' and the ``Star Spangled 
Banner'' speaks of the fact that it flies over 

[[Page S 18049]]
``the land of the free and the home of the brave.'' So I think our flag 
is a great unifier. Respect for the flag begins at an early age, and is 
constantly reinforced throughout our life. We sing the national anthem 
at special events, begin school days with the Pledge of Allegiance, and 
stand at attention at Veterans Day parades when our soldiers proudly 
march through the streets holding high the flag that they protect.
  Few things stir more emotion and patriotism for us as the Iwo Jima 
Memorial which depicts the marines risking their lives to raise our 
flag. I served in the Pacific in World War II, so it is hard for me to 
conceive that we have reached a point in our history where there is 
such casual disregard for the flag that some citizens would desecrate 
it.
  Opponents have raised several legitimate concerns over the amendment. 
One of these is whether the amendment would carve out an exception to 
the first amendment. This amendment would simply overturn two erroneous 
decisions of the Supreme Court which misconstrued the first amendment. 
In one of those cases, Justice John Paul Stevens' dissent summed up the 
symbol of the flag best in the case of Texas versus Johnson decision, 
which was handed down in l989 and unfortunately, allowed flag 
desecration. Justice Stevens said:

       It is a symbol of equal opportunity, of religious 
     tolerance, of good will for other people who share our 
     aspirations. The symbol carries its message to dissidents 
     both at home and abroad who may have no interest at all in 
     our national unity or survival.

  By protecting this one unique national symbol, we have not reduced 
our freedom of speech. The first amendment has been interpreted broadly 
by the courts over the years, but it has never been deemed absolute. It 
does not protect ``fighting words'' or yelling ``fire'' in a crowded 
theater. Prior to 1989, Americans' right to express their views was not 
curtailed by the laws of 48 States, which prohibited flag desecration. 
Other matters, such as obscenity, defamation, or other restrictions on 
freedom of speech, such as the destruction of a draft card, have been 
held by courts not to come within the purview of the first amendment.
  Another concern which has been raised is that there is no need for an 
amendment. The number of times the desecration of the flag is 
documented is not the point. The law should not turn simply on the 
number of cases; it should turn on what effect there is on the flag as 
a symbol of the unity and freedom of our country each time it is 
desecrated. This flag is devalued when there exists no legal means to 
protect the flag from those who would desecrate it in order to express 
their views.
  I believe this amendment will not deter flag desecration in all 
cases. In some cases, it may even spur a handful of people to burn 
flags in order to test its purpose. But by allowing the flag the 
protection of a constitutional amendment, we reiterate our belief that 
we ourselves value the flag as a symbol of what America stands for.
  Our society is increasingly pluralistic, and being an American means 
many different things. As we highlight our differences in this changing 
world, we must remember what unites us. Without unity, there would be 
no America. The flag is a great unifier that brings together Democrats 
and Republicans, conservatives and liberals, and people from all walks 
of life and different persuasions. The flag crosses religious belief, 
race, cultural heritage, geography, and age. To disregard the power and 
the importance of our flag is to take us down a path that we would be 
wise not to follow.
  I think we should support this constitutional amendment, and I feel 
that it is important that we do so. I believe that the vast majority of 
the American people support the amendment. In fact, a 1995 Gallup Poll 
was taken, which asked whether the American people thought that we 
should have the right to determine by vote whether or not the flag 
should be protected from desecration. Eighty-one percent of the people 
said ``yes.'' Asked whether they thought such an amendment would 
jeopardize their right to freedom of speech, 76 percent answered that 
it would not jeopardize their freedom of speech.

  So I feel that there is great support for this effort across the 
land, and I hope my colleagues will join us in adopting this 
constitutional amendment, which will give great importance to America 
and to the flag that unites us, because the flag that we pledge 
allegiance to is a pledge also to our Republic and to our belief in 
this great country of ours.
  I yield the floor.
  Mr. Gramm addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas is recognized.

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