[Congressional Record Volume 141, Number 196 (Monday, December 11, 1995)]
[Senate]
[Pages S18316-S18333]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The Senate continued with the consideration of the joint resolution
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. If the Senator will withhold we are returning 
to Senate Joint Resolution 31.
  Mr. BIDEN. That is what I wish to speak to, Mr. President.
  Mr. President, we have had some discussion this morning, we will have 
some more discussions this afternoon, and some discussion tomorrow as 
well, on a constitutional amendment to protect the flag.
  Nothing symbolizes what we might call our national spirit like the 
flag. In times of crisis it inspires us to do more. In times of 
tranquility it moves us to do better. And, at all times it unifies us 
in the face of our diversity and of our difference.
  There are those who believe that we should not, under any 
circumstances, and no matter how it is worded, write an amendment into 
the Constitution to protect the flag because they believe there is no 
way to do that without damaging an even more cherished right, our right 
to say whatever we wish to say when we wish to say it without the 
Government acting as a censor, without the Government choosing among 
our words, which are appropriate and which are not.
  I understand their view and I respect it. I believe, as strongly as I 
believe anything about this debate, that those against the amendment in 
question are no less patriotic, no more un-American, no less American, 
no better, no worse than those who share the view that the amendment in 
question is an appropriate way to protect the flag, which really means 
to speak to our national spirit and consensus that exists in America 
about what we stand for. The so-called culture norms people often speak 
to.
  I respect their motives and I respect their views. But they are not 
mine. Although it is arguably not necessary to enshrine in the 
Constitution a way of protecting the flag, I believe that written 
properly, I believe stated properly, it can in fact legitimately be 
placed in the Constitution without doing damage to any of the other 
elements of our Constitution. But I should say up front that the 
amendment in question, in my view, does not do that. I say this as one 
who has made it his business here on the floor, along with my friend 
from Vermont, whom I see on the floor, and others, of sometimes being 
out of step in the minds of many people in terms of protecting the 
civil liberties of persons in this country to say what they wish to 
say, to publish what we do not wish them to publish, and to take 
actions we find reprehensible. But the Senator from Vermont, myself, 
and 

[[Page S18317]]
others believe they are guaranteed under the first amendment.
  The first amendment does not say that you can only say things which 
reflect insight. The first amendment does not say you have to be 
bright. The first amendment does not say you have to be right. All the 
first amendment says is that you can say what you wish to say in 
relation to speech, and the Government cannot censor what you say no 
matter how, with notable exceptions, how much we do not like what is 
being said.
  But I believe that the flag stands alone, and that is a legitimate 
way to protect our flag as the singular and unifying symbol of a 
diverse people in need--I would add in urgent need sometimes--of common 
ground. America is the most extraordinary nation on Earth.
  I realize those who are here in the galleries who may be from other 
countries, or those who listen to this on CNN, or C-SPAN--if it is 
carried--will say, ``Isn't that a typical American assertion, a 
chauvinistic assertion?'' ``We are the most extraordinary nation on 
Earth.'' We are extraordinary in the sense not that we are better as 
individuals, not that we are smarter, not that we are wiser, more 
generous, or less venal than other people, but the genius of America is 
the American system, a system that takes into account our significant 
diversity which in other countries--that diversity I am referring to--
and in other systems creates great strife.
  We take that diversity, which in other countries creates strife, and 
we have turned it into strength. That is not very easy to do. People 
often fear diversity. The fact that we are black and white does not 
automatically generate fellowship and harmony. The fact that we are 
Christian, Jew, and Moslem does not send us running into one another's 
embrace to herald our differences. The fact of the matter is that 
people fear that which is different. It is a human condition.
  Our diversity naturally pushes us apart, not together. But what holds 
us together as a nation, Mr. President, is not a common language, 
although I think that is necessary; not a common world view, which I do 
not think is necessary. What holds us together is a common commitment 
to a system of government, a covenant of goodwill, of tolerance, of 
equality, and freedom, that is enshrined in the Constitution. And the 
flag stands as the single most important symbol of that covenant. It is 
the story of all we have been and the symbol of what we wish to become.
  To me, the flag is much more than the sum of the stars and the 
stripes. It sounds corny to say, and to listen to it sometimes, but it 
is also idealistic. I believe that it is important even more now than 
then for all Americans to feel like a family. Like all families we have 
our problems. We squabble with each other. We misunderstood each other. 
And we hurt each other in countless ways. But at the end of the day we 
still need to feel like a family under one roof bound together by 
shaped and shared values, and a shared sense of respect and tolerance.
  It is the flag that symbolizes those shared values and which reminds 
us of how the shared covenant of respect and tolerance has to be 
maintained. It is the flag under which we as a diverse and sometimes 
divisive community can come together as one. And it is the flag that 
flies high and proud over our Nation's home.
  But to say that the flag is worth protecting does not end our 
conversation. It is only, in my view, where we start, for we must ask 
how the flag should be protected. As we look to protect the flag, we 
must not lose sight of the first amendment and its guiding principles 
for, although the flag may stand alone, it should not and it cannot 
stand above our most cherished freedom of speech.
  Here is what I mean. At heart of the first amendment lies a very 
basic notion; that is, the Government cannot muzzle a speaker because 
it dislikes what he or she says, or discriminate between your speech 
and mine because it agrees with me but disagrees with you. That sort of 
viewpoint discrimination is most importantly what the first amendment 
forbids.
  As the Supreme Court has said, and I quote:

       Above all else, the first amendment means that government 
     has no tolerance to restrict expression because of its 
     message, its ideas, its subject matter, or its content. The 
     essence of forbidden censorship is content control.

  Just last term, the Supreme Court forcefully reiterated its 
intolerance for viewpoint discrimination in the majority opinion of 
Rosenberger versus the University of Virginia. Justices Rehnquist, 
Scalia, Thomas, Kennedy, and O'Connor--Rehnquist, Scalia, and Thomas 
not accused of being a liberal triumvirate--said:

       In the realm of private speech or expression, government 
     regulation may not favor one speaker over another. When the 
     government targets particular views taken by speakers on a 
     subject, the violation of the first amendment is all the more 
     blatant.

  The Government can tell us we may not blast our opinions over a 
loudspeaker at 3 a.m. in the morning. It can tell us that we cannot 
distribute obscenity and that we cannot spread libelous statements 
about one another. But it cannot apply different rules based upon the 
viewpoint of the broadcast, the obscenity, or the libel. It cannot say 
you cannot engage in that obscenity because of the viewpoint of the 
expression, you cannot broadcast something because of the viewpoint you 
are expressing, or you cannot say that about another person because of 
the viewpoint that you are expressing. It cannot apply different rules 
to Democrats and Republican, hippies and yuppies, rich and poor, black 
and white, or any other division in this country.
  It was on this point to protect the flag, while not doing violence to 
the core first amendment principle of viewpoint neutrality, that I 
wrote the Flag Protection Act of 1988. That act aimed to safeguard the 
physical integrity of the flag across the board by making it a Federal 
crime to mutilate, deface, physically defile, burn, maintain on the 
floor, or ground, or trample upon the American flag. It passed the 
Senate, was signed by the President, and it became law.
  The statute focused solely on the exclusivity of the conduct of the 
actor, regardless of any idea the actor might have been trying to 
convey, regardless of whether he meant to cast contempt on the flag, 
regardless of whether anyone was offended by his actions.
  The statute was written that way because, in my view and in the view 
of other of constitutional scholars, the Government's interest in 
preserving the flag is the same regardless of the particular idea that 
may have motivated any particular person to burn or mutilate the flag. 
Our interest in the flag is in the flag itself as the symbol of what we 
know in our hearts to be precious and rare and which flies high and 
proud over this place we call home, a precious and rare symbol of this 
Nation.
  The flag's unique place in our national life means that we should 
preserve it against all manner of destruction. It does not matter 
whether the flag burner means to protest a war, or praise a war, or 
start a barbecue. It is the flag that is the treasured symbol--not the 
obnoxious speech nor the positive speech that accompanies the burning 
of the flag--that must be protected.
  We are here today deciding whether to add the 28th amendment to the 
Constitution, with a thought, I believe, that the flag is worthy of 
constitutional protection. Although I believe it is worthy of 
constitutional protection, I nevertheless must oppose the 
constitutional amendment that is before us now. I oppose it because, in 
my view, it puts the flag on a collision course with the Bill of 
Rights.
  Again, the purpose of these amendments is to protect the flag as if 
we are going to protect a tombstone, as if we are going to protect the 
national eagle, as if we are going to protect it as the most precious 
of those symbols. It does not matter to me whether someone comes with a 
sledgehammer and defiles a tombstone of a war hero by saying, ``I do 
this because I do not think this slate of granite warrants being on top 
of your sacred body.'' I do not care whether they do it when they smash 
it because they say, ``I do this because I protest you and the war that 
you fought in,'' and so on. The end result is the tombstone is 
destroyed.
  That is the story I want to get across about the flag. If it is the 
flag we wish to protect and not amend the first amendment, not make 
choices among the types of speech we can engage in, then let us protect 
the flag--nothing 

[[Page S18318]]
else. As I said, I do not care whether someone takes that flag and 
lights the flag and burns it in this Chamber offering it up as a sacred 
symbol for all who died in the name of this country or grabbed it and 
burned it because they are protesting the grotesque policy of the 
United States on such and such. The end result is the national symbol 
is burned. And when we go beyond protecting merely the symbol, we go to 
choosing, making choices among the types of speech we will allow 
Americans to engage in.
  I oppose the amendment because it puts the flag on a collision course 
with the Bill of Rights. Let me expand on that. The proposed amendment 
gives the Congress and the 50 States the power to prohibit the physical 
desecration of the flag. And that word ``desecration'' is loaded. It is 
loaded with ambiguity. It is laden with value. And it will inevitably 
lead to trouble. To desecrate, like beauty, is in the eye of the 
beholder.
  Here is what the dictionary says desecrate means:

       To divert from a sacred to a profane use or purpose; to 
     treat with sacrilege; to put to unworthy use.

  So to determine whether an action desecrates, we must first make a 
value judgment about what the message the actor is trying to convey is. 
We usually talk about desecration in terms of our religious values--to 
desecrate a cross or a crucifix, to desecrate a menorah, to desecrate a 
temple, to desecrate a church, to desecrate a sacristy, to desecrate a 
host. Although I revere the flag, I do not put the flag on the same 
level as the sacred symbols of our varying religions. It is a different 
thing. We have never decided that any of our civil actions should rise 
to the level of spiritual undertaking. And so when you talk about 
desecration, you have to understand that you are applying and allowing 
the application of value judgments that we will attach to the actions 
of the actor who is desecrating the flag.
  Does he mean to profane the flag? What does that mean? Obviously, we 
have to determine that subjectively, whether it profanes the flag. Does 
her action treat the flag irreverently or contemptuously? Is the flag 
being put to an unworthy use?
  When we make those kinds of value judgments, we are not making the 
act of burning the flag a crime. We are making the message behind the 
act the crime. I will refer to this later. But is it in fact putting 
the flag to an unworthy use to put it on the side of a hot dog vendor's 
stand? Maybe that is all right. In one community, they may say that is 
a good idea.
  How about the guy who runs the pornographic theater, and on one side 
of the marquee he puts some lewd and obscene or profane or pornographic 
title of a film being shown inside and on the other side he drapes the 
American flag. Is that putting it to an unworthy use?
  How about the woman who buys the revealing thong bikini that is made 
in a flag. Is that profaning the flag? Is she to be arrested?
  How about the woman who buys the $5,000 sequin dress that has a flag 
on it? Is that profaning the flag? Does it matter what her figure is 
like to determine what use the flag is being put to?
  I rode in a parade recently in my home State, and it was a parade 
that was honoring the war dead. It was Memorial Day. We went by on 
Union Street in Wilmington, DE, the home of a black veteran, and he 
proudly had his flag flying on his front porch on a row house, and on 
the other side of the flag sewn perfectly so it was the exact same size 
was the African national symbol, black, red, and green. Is that 
profaning the flag? He meant it out of respect. He was a war veteran. 
If I am not mistaken, he had been president of one of our veterans 
organizations. Is that profaning the flag? Well, in Maine, maybe it 
would not be profaning the flag. In southern Delaware or Alabama it 
maybe would be viewed as profaning the flag.
  Who makes those choices--the local constable, the local cop, the 
local censor? That is the crux of my objection to this amendment. It 
makes not the act but the message the crime. And in doing so it gives 
the Congress and the States license to discriminate between types of 
speech they like and types of speech they do not like. But you do not 
have to take my word for it.
  Back in the bad old days, when I was chairman of the Judiciary 
Committee and subsequently as the ranking member, we held extensive 
hearings about the exact same amendment 5 and 6 years ago, and we heard 
from its authors, then members of the Bush administration, noble and 
honorable men, and they pulled no punches to this question. They 
admitted right out that the goal was to allow the Government to 
discriminate between bad flag burners and good flag burners.
  More specifically, then Assistant Attorney General William Barr, who 
became Attorney General of the United States, and a fine one, in my 
view, in 1989 said that the message, ``Would permit the legislature to 
focus on the kind of conduct that is really offensive.'' He said that 
there is ``an infinite number of forms of desecration and that States 
would have substantial discretion in fashioning flag laws.''
  One year later, Acting Assistant Attorney General Michael Luttig 
testified that the goal of the amendment was to ``punish only actors 
that were intending to convey contempt.''
  Now, when I heard him say that, I wanted to make sure I did not 
misunderstand, so I asked Mr. Luttig point blank, would it be 
permissible under this amendment to pass laws discriminating between 
types of expression--not types of burning; you use the same match, same 
flag--but the type of expression that went along when you were burning 
the flag. Was that the purpose? And he said, ``That is correct. You 
could punish that desecration which you thought was intended to be 
disrespectful toward the flag and not that which in your judgment was 
not.''
  If I am not mistaken, I remember the example I gave. I said, how 
about if there are two veterans at the war memorial, the Vietnam War 
Memorial, and they each go down and they have their own flag, and he 
kneels down before the wall, one of them, and one happens to be a 
woman. And she takes out the flag, very respectfully, puts it in an 
urn, puts a little lighter fluid on it and lights it, and says, ``I'm 
offering this flag up to purify the soul of my deceased husband whose 
name is on the wall and fought valiantly for his country in a noble 
effort.''

  And another Vietnam veteran comes down and kneels down, takes out an 
urn, puts a flag in it, and puts lighter fluid on it and lights it, and 
says, ``I'm offering this flag up in anger for the wasted lives of my 
friends and brothers who are on this wall''--in anger--``for what my 
country did to them.''
  If there is a park cop, a D.C. cop standing there, what does he do? 
And he says, ``Arrest the veteran who said he is burning this flag out 
of anger, but do not arrest the widow who is burning this flag to 
honor.''
  That will be the first time in the history of the United States of 
America we passed a law that was constitutional--because, by 
definition, a constitutional amendment will be constitutional--that 
said, ``Government, you can choose to punish those who say things you 
don't like, and let those who say things you do like go for the same 
exact physical act that they engage in.''
  Now, ladies and gentlemen, how does that stop? Where does that stop? 
Do we really want the Federal Government, let alone the 50 States, to 
be able to make those judgments that we have never allowed before? Lest 
anyone say to me that things have somehow changed this year, I point to 
the committee report that was just published by the Judiciary 
Committee. The majority views make it clear that viewpoint, 
neutrality--that issue I talked about earlier--is neither a goal nor an 
attribute of the proposed legislation.
  Here is what the attending committee report to this constitutional 
amendment says: ``The committee,'' meaning the Judiciary Committee, 
``does wish to empower Congress and the States to prohibit contemptuous 
or disrespectful physical treatment of the flag. The committee does not 
wish to compel the Congress and the States to penalize respectful 
treatment of the flag.''
  You all think I am kidding about this? Any of the people in this 
Chamber who listened, you get 1,000 catalogs in the mail, everyone from 
L.L. Bean to, I do not know, all these catalogs. Look at the catalogs 
you get for swimsuits. Look at them--not even ones you asked to have 
sent to you--and you will see the swimsuits, men and women's are 
flags--a flag. 

[[Page S18319]]

  In some parts of my community, someone wearing a one-piece swimsuit 
with a flag on it would not be viewed as disrespectful, someone wearing 
a two-piece swimsuit would maybe not be, someone wearing a bikini may 
very well be. And you think--I know this is funny, but it is real. It 
is real. These are real things. You are going to empower some local 
cop, some local community, to make a judgment. If I show up in boxer 
shorts, a kind of swimsuit with a flag on it, no problem. If some 
young, 19-year-old, muscle-bound guy shows up in a bikini with it on, 
well, they may say that is kind of offensive, that is too revealing.
  Is that the business we want to get into? And, by the way, what is a 
flag? Is the flag a decal? You stick a decal on the side of a hot-dog 
vendor stand. Well, what is that? What happens if they take these 
little flags, these little decal things they hand out and put pins on--
some are stickers--and burn one of those? Is that desecrating the flag? 
Is that the business we want to get into as a nation?

  Also, this year the proponents of this amendment highlighted the 
testimony of former Assistant Attorney General Charles Cooper. Here is 
what former Assistant Attorney General Charles Cooper had to say a few 
months ago.

       [P]ublic sentiment is not neutral.

  Parenthetically, I would note that is a profound observation.

       [P]ublic sentiment is not ``neutral''; it is not 
     indifferent to the circumstances surrounding conduct relating 
     to the flag. If such conduct is dignified and respectful, I 
     daresay that the American people and their elected 
     representatives do not want to prohibit it; if such conduct 
     is disrespectful and contemptuous of the flag, I believe that 
     they do.

  I believe that, too. It makes my blood boil when I read the testimony 
of that young guy standing on the floor on the steps of the capitol in 
Texas saying, ``Red, white, and blue, I spit on you,'' and burning a 
flag. They are the kind of things that--fortunately, most of us were 
not around--they are the kind of things that literally start fights 
with people who do not have a lot of self-control in circumstances like 
that. And I probably would fit in that category.
  But what is the difference? We are going to allow--obviously, public 
sentiment is not neutral on anything. It is not neutral on what we say 
about--I happen to be a Roman Catholic. It is not neutral on how some 
of the far-right folks talk about my church. I do not like the way they 
talk about the Pope. I do not like the kind of comments they make. I 
find it offensive. I happen to be a member of the largest single 
denomination in the United States of America because 33 percent of us 
are Catholic. There are more Catholics in here than any other single 
denomination in the Congress, if I am not mistaken.
  Should we pass a law saying, ``It offends me. It offends me. You 
can't say those things about my church''? Is that a good idea? That is 
content. That is content.
  So when we talk about the public is not neutral, they are not neutral 
on anything. Should people have a right to stand up and offend us as 
some do and make pro-Communist speeches or what about these defiling 
Nazi types around this country? What about these militia guys, some of 
whom wear swastikas? I am not labeling all militia people, but some 
are. The white supremacists--it makes my blood boil when I hear what 
they say about our country, about Jews, about blacks. But, guess what, 
folks? They are entitled to say it. It offends all of us, 95 percent of 
us.
  So if I decide, as Mr. Cooper says, public sentiment is not neutral, 
it is not neutral on that, it is not neutral on the Ku Klux Klan, it is 
not neutral on white supremacist organizations, it is overwhelmingly 
opposed, so because it is not neutral, we go with a majority sentiment? 
Are we prepared to say that? Are we prepared to outlaw their speech? 
Well, it would make me feel good. I would like to do it. But if we go 
for them today, who do we go for next?
  How about the time when people stood up 40 years ago and made 
speeches about black equality, made speeches about the rights of blacks 
to participate in our society? The majority of folks in certain parts 
of the country, including my State, were not for that. Would they be 
able to pass a law in the State of Delaware saying you cannot say that? 
``You're a rabble-rouser, talking about that 19 percent of my 
population that is black having equal rights.''
  Probably a significant portion of the American public is offended by 
some of the more militant aspects of the gay and lesbian movement who 
stand up and make speeches about what their rights are. The fact that 
it is not neutral, that we are not neutral on that subject as a nation, 
then we have a right to outlaw it?
  I believe that this whole argument misses--the argument made by those 
who talk about whether we are neutral on it or not, that we should be 
able to act on what we are not neutral about--misses the greatest 
constitutional point.
  It misses, indeed, the genius of the first amendment. Here in America 
the majority, by and large, does not get to choose what can and cannot 
be said by the minority, or by anyone else for that matter. And the 
Government, more importantly, is constitutionally restrained from 
deciding what speech is good and what speech is bad. But that is 
precisely what the proponents of this amendment say it would do and 
should do. Let me be precise.
  That is what the senatorial and congressional proponents of this 
amendment mean for it to do. I really do not believe the vast majority 
of the members of the American Legion and the vast majority of veterans 
groups and the vast majority of Americans know that it will do this. I 
do not think they thought that one through. But that is precisely what 
the proponents of the amendment say it would do and should do. They 
would have the flag emblazoned with the slogan ``Government is great'' 
treated differently than one that says, ``Government is rotten.''
  Get that flag, put on it, ``The U.S. Government is great.'' Does that 
deface the flag? Put on the same flag, ``The U.S. Government is 
rotten,'' and what is that? Is that OK? Well, as a U.S. Senator who has 
occasionally had some scurrilous things said about him because I am 
part of the Government and because I am who I am, I sure would like to 
have the power to pass a law saying, ``You can't say bad things about 
me, I'm part of the Government, only good things about me. If they are 
bad things, you can't say them.''
  I would like all the newspaper editors in America to understand that 
from now on, we may have an amendment that you cannot say anything bad 
about a U.S. Senator, notwithstanding the fact we deserve it and I 
deserve it.
  Under this amendment, the State could send to jail the fringe artist 
displaying the flag on the floor of an art museum while giving its 
blessing to a veteran who displays the flag on the ground at a war 
memorial. That, I believe, is not content neutral.
  The State could, as I said, arrest the widow who burns the flag to 
protest the war that took her husband's life while smiling on the widow 
who burns the flag in memory of her fallen husband. I believe this type 
of viewpoint discrimination exacts too high a constitutional price to 
protect the flag. As Justice Jackson so memorably put it in the flag 
statute case of 1943:

       The very purpose of the Bill of Rights was to withdraw 
     certain subjects from the vicissitudes of political 
     controversy, to place them beyond the reach of majorities and 
     officials. . . If there is any fixed star in our 
     constitutional constellation, it is that no official, high or 
     petty, can prescribe what shall be orthodox in politics, 
     nationalism, religion or other matters of opinion or force 
     citizens to confess by word or act or faith therein.

  What it boils down to is this: This amendment, as presently drafted, 
allows the Government to pick and choose, to make flag burning illegal 
only in certain situations involving only certain circumstances and 
only if carried out by certain people and only for the time in 
question, because 2 years later, 5 years later, 20 years later, 40 
years later, it can change.
  This discrimination is precisely and most profoundly what the first 
amendment forbids, and the amendment that works this kind of 
discrimination does not protect the flag, it censors speech.
  Another problem with the amendment is that it fails to define the 
word ``flag.'' This would add yet another layer of difficulty in 
interpretation and application and open the door further to 
inconsistencies among the States. Again, each State would have 
considerable discretion to craft its own definition, and, again, the 
possibilities are nearly endless. 

[[Page S18320]]

  As Assistant Attorney General Barr testified, the legislation would 
be able to criminalize conduct dealing not only with the flag as we 
know it but with, and I quote, ``descriptions of the flag, such as 
posters, murals, pictures, buttons or other representations of the 
flag.''
  Indeed, Mr. Barr, in speaking in favor of such a sweeping definition, 
said that it would, and I quote again, be: ``consistent with the 
Government's interest in preserving the flag's symbolic value because 
it recognizes that the desecration of representations of the flag 
damage that interest as much as the desecration of the flag itself.''
  So in Maine, it might be a crime to draw a flag being fed into a 
shredding machine. In California, it might be a crime to wear a 
sequined dress in the pattern of a flag or a flag bikini or T-shirt. In 
Mississippi, the legislature might make it a crime to put a flag decal 
on the side of a hot dog vending machine.
  This sort of disparity among State laws, whether it is over the 
meaning of ``desecration'' or the definition of ``flag,'' is especially 
inappropriate here where we are talking about the Nation's symbol. This 
is not the symbol of Mississippi or Delaware, Alabama, South Carolina, 
California, Maine, or Montana. It is the national symbol. The reason it 
is worth preserving is because it unifies this diverse Nation, and the 
notion that a single State can determine what that should be is, on its 
face, preposterous.
  I understand that there is a possibility that the distinguished 
Senator from Alabama, Senator Heflin, and others, may have an amendment 
to amend this amendment to take out the right of the States to do this. 
I am not sure of that, but that is what I understand. That would be a 
positive step, because it is, on its face ludicrous--ludicrous--to 
allow each State to determine how much they are going to protect the 
national symbol.
  Some States in the past, and I do not say this disrespectfully, 
decided it should not be our national symbol and decided to have 
another flag. I do not want any State telling me what that symbol 
should be and how it should be treated. It is a national symbol.
  It is a symbol of the Nation, not of the States, and an amendment 
which will foster a crazy quilt of laws all across the map misses the 
point and an important one: It will be more divisive than unifying.
  Why is it any less reprehensible to burn a flag in Louisiana than it 
is in Montana? Why should we be able to wear a flag T-shirt in a wet T-
shirt contest in Arkansas or Delaware and not in Florida or California?
  Moreover, constitutional rights and principles should know no 
geographic boundaries. A Delawarean should not be accorded greater 
freedom of speech than his neighbor across the way in Pennsylvania. A 
Californian should not have more due process rights than her cousin up 
north in the State of Washington.
  If we want to protect the flag, we should have one national 
viewpoint-neutral standard. The Constitution, after all, stands for 
proud and broad principles, not a patchwork of 50 different and 
idiosyncratic ideas. I agree that we should honor the flag. We should 
hold it high in our hearts and in our law, but we should not dishonor 
the Constitution in the process.
  With all due respect for my good friends, Orrin Hatch and Howell 
Heflin, I think this amendment does violence to the core of the first 
amendment principle of viewpoint neutrality. This is the price that I 
am unwilling to pay. But more to the point, it is a price we do not 
have to pay to protect the flag. We can do both: Preserve the first 
amendment in viewpoint neutrality, and we can protect the flag and 
preserve the first amendment at the same time. And that is what the 
amendment I now propose seeks to do.


                           Amendment No. 3093

   (Purpose: Proposing an amendment to the Constitution authorizing 
 Congress to protect the physical integrity of the flag of the United 
                                States)

  Mr. BIDEN. Mr. President, I send the amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes an amendment 
     numbered 3093.

  Mr. BIDEN. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the resolving clause and insert the 
     following: That the following article is proposed as an 
     amendment to the Constitution of the United States, which 
     shall be valid to all intents and purposes as part of the 
     Constitution if ratified by the legislatures of three-fourths 
     of the several States within seven years after its submission 
     to the States for ratification:


                              ``Article--

       ``Section 1. The Congress shall have power to enact the 
     following law:
       ```It shall be unlawful to burn, mutilate, or trample upon 
     any flag of the United States.
       ```This does not prohibit any conduct consisting of the 
     disposal of the flag when it has become worn or soiled.'.
       ``Section 2. As used in this article, the term `flag of the 
     United States' means any flag of the United States adopted by 
     Congress by law, or any part thereof, made of any substance, 
     of any size, in a form that is commonly displayed.
       ``Section 3. The Congress shall have the power to prescribe 
     appropriate penalties for the violation of a statute adopted 
     pursuant to section 1.''.

  Mr. BIDEN. Mr. President, I shall not seek to have a vote on the 
amendment at this time, under the order.
  My amendment is simple and straightforward. It leaves no room for 
guesswork about what it will mean. It gives the Congress the power to 
enact--it is a constitutional amendment--it gives Congress the power to 
enact a specific viewpoint-neutral statute, a statute making it 
unlawful to burn, mutilate or trample upon any flag of the United 
States, period. It does not matter who burns, mutilates, or tramples 
the flag, and it does not matter why. Under my proposal, it would be 
unlawful to do the flag harm, no ifs, ands, or buts. It makes a single 
exception for disposing of the flag when it has become worn or soiled, 
and it says a flag is what we all know a flag to be, that which is 
commonly displayed and is defined by the Congress. It rules out things 
like pictures of flags, napkins with flags on them, and other 
representations of the flag.
  My proposal also gives the Congress the power to write appropriate 
penalties for violating the statute. Let me say at the outset that I am 
the first to acknowledge that the restriction on flag burning is a 
restriction on expressive conduct. There are no two ways about it. When 
Gregory Johnson burned the flag at the Republican convention in 1984 
and chanted the words ``America, red, white, and blue, I spit on you,'' 
he was trying to say something. It may have been no more than an 
``inarticulate grunt or roar,'' as Chief Justice Rehnquist puts it, but 
it was communicative nonetheless.
  So let us be honest, any attempt to limit flag burning does limit 
symbolic conduct, but that was just as true back in 1989 when 91 
Senators voted for my Flag Protection Act, which made it a Federal 
crime to burn, mutilate, or trample on the flag. Let us be honest about 
another thing. This first amendment does not give symbolic conduct, or 
any other kind of speech, for that matter, limitless protection. You 
cannot burn a draft card to protest the war, and you cannot sleep in 
Lafayette Park to protest the homelessness of America; you cannot spray 
paint your views on the Washington Monument; you cannot blast them from 
a sound truck in a residential neighborhood at 3 a.m. in the morning.
  When we prohibit flag burning, we are not interfering with a person's 
freedom to express his or her ideas in any number of other ways. As 
four Justices noted in the Eichmann case--that is the one that declared 
my statute unconstitutional--it may well be true that other means of 
expression may be less effective in drawing attention to those ideas, 
but that is not itself a sufficient reason for immunizing flag burning. 
Presumably, a gigantic fireworks display or a parade of nude models in 
a public park might draw even more attention to a controversial 
message, but such methods of expression are nonetheless subject to 
regulation.
  We limit the manner in which folks can express themselves all the 
time, as long as we limit everyone the same way. We cannot say that I 
can have a fireworks display and you cannot. We cannot say that one 
nude person could go through a park and another one cannot. We must 
treat all people the 

[[Page S18321]]
same--as long as we do it the same way. But we do limit the ways in 
which we can express ourselves. And that, Mr. President, is precisely 
the point.
  We cannot let someone make a speech on top of the Capitol in favor of 
American involvement in Bosnia but tell the person with a contrary view 
that he cannot go up there and make the same speech. But we can tell 
them both, and everyone else, that no speeches can be made from the top 
of the Capitol dome. We just cannot choose among the speakers. We can, 
thus, restrict the time, place, and manner by which people express 
themselves. The thing we cannot do is regulate the content of their 
expression and discriminate between the various viewpoints being 
expressed.
  I think that we can and that we should tell everyone they cannot burn 
the flag. I agree with Justices Warren, Fortas, and Black that the 
right to burn the flag does not sit at the heart of the first 
amendment. But I also agree with Justice Scalia when he said, ``The 
Government may not regulate speech based on hostility or favoritism 
toward the underlying message expressed.'' The point of the first 
amendment is that the majority preferences must be expressed in some 
fashion other than silencing speech on the basis of content. Yes, I 
agree with Justices Scalia, Rehnquist, Thomas, Kennedy, and O'Connor in 
their strong and unequivocal condemnation of viewpoint discrimination 
just last term in the Rosenberg case. I remind my colleagues, nobody 
has ever accused Justice Rehnquist of being a radical or a liberal, or 
Justice Scalia of being a radical or a liberal, or Justice Thomas of 
being a liberal, and the list goes on. Flag burning may not sit at the 
heart of the first amendment, but the principle against viewpoint 
discrimination does sit at the heart of the first amendment.
  This is one of those defining constitutional principles that sets 
America apart and, in so many ways, above other nations. Here, the 
Government cannot regulate speech based on the viewpoint of the 
speaker. Here, the Government cannot pick and choose between speech it 
likes and speech it does not like, and criminalize what it rejects but 
not what it respects.
  That is the bedrock first amendment principle upon which my proposed 
amendment is based, and it is the principle--the core principle, in my 
view--that separates my proposal, my constitutional amendment, from the 
one proposed by Senators Hatch and Heflin.
  Their amendment allows and, in fact, encourages viewpoint 
discrimination. Mine, flatly stated, prohibits it. Their amendment 
would send to jail a guy who burns the flag to protest the war, but not 
the guy who burns the flag to praise the war. My amendment would throw 
them both in jail, if that is what the Congress decides to legislate. 
Their amendment would make it a crime to walk on the flag at a college 
campus sit-in, but not at the war memorial. My amendment would 
criminalize both, if that is what the Congress legislated.
  In my view, it does not matter why you burn or mutilate or trample on 
the flag; you should not do it, period. I do not care whether you mean 
to protest the war or praise the war or start a war. You should not do 
it. Our interest in the flag is in the flag itself as a unifying 
symbol. I might add, the person riding down Constitution Avenue 
watching the veteran burn the flag to memorialize his colleagues has no 
notion why he is doing it. All he knows is that the national symbol is 
being burned. Under their amendment, you would have to get close enough 
to hear what was being said in order to determine whether or not it 
should be allowed or not allowed. I find it no less demeaning that 
someone would, in order to pay respect to my deceased family, trample 
across our grave plots than I would if someone tramples across them to 
show disrespect. I do not want anybody trampling where my family is 
buried. I do not want anybody burning the flag, whether they are doing 
it to praise me or condemn me. They should not do it.
  Our interest is in the flag--in the flag itself--not in advancing or 
silencing any particular idea that the flag destroyer might have in 
mind. But do not take my view for it, ask a Boy Scout. If a Scout sees 
a flag dip to the ground, he runs to pick it up, does he not? That is 
how I trained my boys and my daughter. That is how I was trained as a 
Scout from the time I was a little kid. It does not matter why it fell; 
do not let it touch the ground. He does not care why the flag is on the 
ground, he does not care who let it fall, he does not care what 
somebody might have been trying to say when they let the flag fall; all 
he knows is that the flag is something special and it should not be on 
the ground. And so it should be with all of us.
  If the only justification for protecting this flag, Mr. President, 
and if it, in fact, is the unifying symbol of a diverse nation and it 
serves a greater Government purpose of holding us together or reminding 
us how we are the same and not different, if that is not the purpose, 
then this exercise is profane, the exercise we are undertaking is 
profane.

  For what else is the reason? Interested in a cloth maker, we do not 
want them burned? Or we have a greater interest in cloth makers, so 
they can buy and sell more flags? What is the purpose?
  It either unifies or does not; it either should be soiled or not 
soiled. We cannot have any other rationale that I can come up with. The 
flag is a cherished symbol, not as a vehicle for speech; it is a 
cherished symbol, period. That is why it should be protected.
  That is what my amendment does. The amendment authorizes Congress, 
and Congress alone--not the States--for, as I said earlier, I do not 
want any other State defining to me what my national symbol means. This 
is a national symbol. This is the National Government, and the National 
Government should have unifying rules about the national symbol. That 
is what my amendment does. Only the National Government, speaking for 
the Nation as a whole, can speak to how we should treat that unifying 
symbol.
  This means my amendment would not let some violate the physical 
integrity of the flag but not others. Under this amendment, no one will 
be able to do the flag harm. With viewpoint neutrality as its signpost, 
the amendment preserves the first amendment's cardinal value.
  The amendment also ensures that the implementing legislation will be 
viewpoint neutral, and it makes sure that there will not be a patchwork 
of conflicting local flag protection laws. What will be a crime in 
Delaware will also be a crime in Utah. There will not be a place in the 
Nation you can go and legally burn my flag, our flag. We do not have a 
flag T-shirt contraband in Minnesota but it is all the rage down in 
Florida.
  Under this amendment, unlike the Hatch-Heflin provision, we know what 
we are getting. We are getting legislation that protects the flag while 
at the same time preserves our speech; at the same time, presenting 
prosecutions and convictions based upon viewpoint discrimination.
  To be sure, my amendment impacts first amendment values, but I 
believe, on balance, that it stands in the proud tradition of many 
legal scholars from Justices Harlan to Fortas, from Black to Stevens, 
from Chief Justice Warren to Justice Burger, who believe that flag 
protection and free expression are not incompatible.
  I join them in believing that the singular symbol of our Nation ought 
to be protected. They recognize, as Justice Holmes once said, ``We live 
by symbols.'' We live by symbols. I share that view. We must protect 
both the flag and the first amendment. One is a symbol, the other is 
the heart of the Nation and who we are as a people.
  We must protect the flag because it is a unique and unifying symbol 
of our Nation, and we must protect the first amendment because it is 
our single greatest guarantee of freedom in this country.
  The amendment that I propose today does nothing more than authorize a 
single law protecting the flag. It does nothing less than respect the 
core first amendment values of neutrality and equality. We can protect 
both the flag and the liberties for which it stands, but, in my humble 
opinion, the Heflin-Hatch amendment sacrifices one for the other. I 
will at the appropriate time strongly urge my colleagues to reject 
their amendment and hopefully vote for mine, instead.
  In conclusion, Mr. President, I also respect those who believe my 
amendment should not become part of the 

[[Page S18322]]
Constitution. I respect them very much. What I do not think anyone can 
disagree with is that there is a fundamental distinction between the 
amendment in terms of its impact on the first amendment.
  My objective here, as much as protecting the flag, is in fact to 
protect and guarantee the first amendment. As I say, there is no one on 
this floor since I have been here who has been more deeply involved in 
attempting to protect the flag than I have.
  I authored the first statute that passed. I authored this amendment 5 
years ago, but I do not take kindly to the notion that we are going to 
consider an amendment that may very well pass, that will, in fact, 
allow the Federal Government and State Governments for the first time 
to choose among the types of speech they wish us to be able to engage 
in: criminalize one, and not the other. If it is a national symbol, 
protect it, period.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Frist). The Senator from South Carolina.
  Mr. THURMOND. Mr. President, the American people overwhelmingly 
support this proposed constitutional amendment Senate Joint Resolution 
31. Poll after poll has shown that nearly 80 percent of all Americans 
favor legally protecting the American flag against acts of physical 
desecration. Forty-nine State legislatures have called upon Congress to 
pass and send to the States for ratification a flag-protection 
amendment. Three hundred and twelve Members of the other body have 
already voted for this amendment.
  This is not a partisan issue. Ninety three Democratic 
Representatives, nearly half of the Democratic Members of the House, 
voted in favor of this amendment. The Democratic leader, Dick Gephardt 
voted ``yes,'' as did 2 Democratic whips, 2 cochairs of the Democratic 
Policy Committee, the chairman of the Democratic Congressional Campaign 
Committee, and 36 ranking committee and subcommittee members. It is 
truly nonpartisan. Here in the Senate, amendment cosponsors include 
both Republican and Democrats. Old Glory is not a Republican banner or 
a Democratic banner. The American flag is a symbol of our unity as a 
Nation--it represents all Americans, regardless of party or philosophy.
  Last Thursday, December 7, was one of those days which holds a 
special place in our history; the anniversary of the attack on Pearl 
Harbor. It is a day when we are particularly mindful of the unique 
symbolism of the American flag.
  The flag, which flies today and everyday over the remains of the 
U.S.S. Arizona, one of the ships sunk during the Japanese attack, and 
which has been preserved as a monument to those who perished in that 
attack, represents our Nation and all that it stands for; the freedoms 
and ideals that have inspired generations of brave Americans to fight, 
and in some cases, to give their lives, in its defense. More than 2,300 
brave Americans made the ultimate sacrifice for that flag and the 
Nation it represents on that fateful day 54 years ago.
  The flag is the one symbol that unites our very diverse people in a 
way nothing else can, in war or in peace. Whatever our differences of 
race, ethnic background, religion, social or economic status, 
geographic region, politics, or philosophy, the American flag forms a 
unique, common bond among us.
  The American flag is more than a symbol of unity to the people of 
this Nation. For generations, it has served as a symbol of hope and of 
freedom to people around the world.
  For over 200 years, the American people enjoyed the right to protect 
one unique national symbol, their flag, from acts of physical 
desecration. This right was exercised by the Congress and the 48 States 
which adopted flag protection statutes, until two wrongly decided, 5 to 
4 Supreme Court decisions took away that right.
  It is up to the Senate to decide whether to acquiesce in Supreme 
Court decisions which misconstrue the first amendment and leave our 
national symbol with no greater protection than an ordinary rag.
  I believe that protecting our flag against acts of physical 
desecration does not infringe on constitutionally protected freedom of 
speech. I believe that Chief Justice Earl Warren, Justice Hugo Black, 
and Justice Abe Fortas were correct when they wrote that the first 
amendment, which those distinguished jurists so passionately defended, 
does not bar Congress from prohibiting physical desecration of the 
American flag.
  Amending our Constitution is not an easy task, nor should it be 
undertaken lightly. With respect to enacting legal protection for the 
American flag, however, the decisions of the Supreme Court in the 
Johnson and Eichman cases make it absolutely clear that a 
constitutional amendment is the best approach. We have tried the 
statutory approach. In 1989, after the Johnson decision, Congress 
promptly enacted a flag protection statute; and the Supreme Court just 
as promptly struck it down in the Eichman case. I have great respect 
for my colleague, Senator McConnell, who proposes to substitute for 
this amendment a flag protection statute. We share the goal of 
protecting our flag from physical desecration. But I respectfully 
suggest to my colleague that his approach, however sincere and well 
intentioned, will not accomplish that goal. In light of the decisions 
of the Supreme Court, I believe that a constitutional amendment is the 
best method available to the Senate and the American people for 
restoring legal protection to our flag.
  I ask unanimous consent to have printed in the Record letters dated 
October 23, 1995, from two distinguished scholars, Richard Parker of 
the Harvard Law School and Stephen Presser of Northwestern University 
School of Law, on this point.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                           Harvard Law School,

                                  Cambridge, MA, October 23, 1995.
     Daniel S. Wheeler,
     Citizens Flag Alliance,
     Indianapolis, IN.
       Dear Dan, Thank you for sending the portion of the 
     Congressional Record for October 19 including the ``Flag 
     Protection and Free Speech Act of 1995'' proposed by Senator 
     McConnell on behalf of himself and Senators Bennett and 
     Dorgan.
       The proposed statute would be struck down by the Supreme 
     Court. The statute, therefore, does not offer a viable 
     alternative to an amendment of the Constitution allowing the 
     representatives of the people--if they so choose--to protect 
     the U.S. flag against ``physical desecration''. The truth is 
     that the only way to enact the statute they propose would be 
     to enact the constitutional amendment first.
       The Congress tried once before to find an alternative to 
     constitutional amendment. In 1989, after the Supreme Court 
     struck down a Texas prohibition of flag desecration in the 
     Johnson case, Congress was persuaded to try to write a 
     ``neutral'' statute protecting the flag that, it hoped, would 
     satisfy the Court's 5-4 majority. Congress enacted such a 
     statute in October 1989. In June 1990, the Court's majority 
     struck it down in the Eichman case. The Court made its view 
     perfectly clear: No statute will pass muster if it singles 
     out the flag of the United States for protection against 
     contemptuous abuse. Such a statute, in the opinion of the 
     five Justices, involves taking sides in favor of what is 
     uniquely symbolized by the flag--our ``aspiration to national 
     unity.'' This singling out of the flag for protection, they 
     believe, violates the Constitution as it now stands.
       Of course, Senator McConnell, speaking for Senator Bennett 
     and Senator Dorgan, says they hope to satisfy the Court by 
     confining punishment of ``[a]ny person who destroys or 
     damages a flag'' (a) to those who do so with intent to 
     ``incite or produce imminent violence or a breach of the 
     peace'' and (b) to those who steal the flag they go on to 
     ``destroy or damage'' from the United States or on certain 
     federal lands. Because the First Amendment permits 
     prohibition of ``fighting words'' and of theft generally, the 
     Senators seem to believe that it also will be held to permit 
     singling out flag abuse, within those two contexts, for 
     particular prohibition.
       This ploy won't work. By singling out the flag for 
     protection against physical abuse, the proposed statute still 
     ``takes sides'' in favor of what is symbolized by the flag. 
     Senator McConnell, in his remarks on the floor of the Senate, 
     made clear that this is indeed the intent behind the statute. 
     He said he is ``disgusted by those who desecrate our symbol 
     of freedom.'' ``[W]e should have zero tolerance for those who 
     deface the flag,'' he proclaimed. Although he also said he 
     hopes to satisfy the 5-4 majority of the Court that decided 
     Eichman, that majority would look at his remarks and at the 
     face of the proposed statute--and it definitely would not be 
     satisfied.
       In fact, there is a Court decision even more recent than 
     Eichman that would doom the 

[[Page S18323]]
     proposed statute, in the absence of a new constitutional amendment 
     authorizing prohibition of physical desecration of the flag. 
     It is R.A.V. v. St. Paul, handed down in 1992. In that case, 
     a 5-4 majority of the Justices struck down an ordinance that 
     singled out particular offensive sorts of expression, within 
     the general category of ``fighting words,'' for prohibition. 
     This, the Court held, involved a taking of sides among sorts 
     of messages and, so, was invalid. The fact that ``fighting 
     words'' in general may be prohibited, the Court said, does 
     not allow government to write and enforce laws that prohibit 
     particular ideological sub-categories of ``fighting words.'' 
     The statute proposed by the three Senators thus would be held 
     to violate the Constitution as it is now written--not just 
     arguably, but patently.
       Senator McConnell spoke last Friday of respect for the 
     Constitution. The question I would ask the three Senators, 
     then, is this: Does proposing to enact a statute that is in 
     patent violation of the Court's interpretation of that 
     document show respect for it?
       Isn't the path that is most respectful of the Constitution 
     the one originally specified by the founding fathers in 
     Article V--the path of constitutional amendment?
       The deepest question, however, is this: Do the three 
     Senators believe the flag is no different from any other 
     symbol--that it is not unique, not uniquely valuable? Or do 
     they want to single out the flag and take sides in favor of 
     what is uniquely symbolized by it? If that is their view, 
     then they have only one real choice now: to support a 
     narrowly-focused constitutional amendment that would permit 
     us to do the thing that they tell us they believe we should 
     do.
       It is that simple.
           Sincerely,
                                                Richard D. Parker,
     Professor of Law.
                                                                    ____

         Raoul Berger, Professor of Legal History, Northwestern 
           University School of Law,
                                    Chicago, IL, October 23, 1995.
     Dan Wheeler,
     President, Citizens Flag Alliance, Indianapolis, IN.
       Dear Dan: You have asked me for my thoughts regarding the 
     constitutionality and the wisdom of the statute to deal with 
     flag desecration recently proposed by Senators McConnell, 
     Bennett, and Dorgan, S. 1335, which appears in the 
     Congressional Record for October 19, 1995. I must admit that 
     I was surprised that three distinguished Senators could take 
     the position that legislation on flag desecration could 
     survive constitutional challenge, in light of the Supreme 
     Court's decisive rejection of the statutory route in U.S. v. 
     Eichman, 496 U.S. 310 (1990). You will remember that when a 
     similar statutory approach was proposed by Senator Biden and 
     others after the Johnson case, Judge Bork, Charles Cooper, 
     and I testified before the Senate that no statute could pass 
     Constitutional muster, and though Lawrence Tribe and others 
     told the Senate that a flag protection statute would not be 
     found unconstitutional, they were wrong, and we were proved 
     right. It could not be clearer that the same thing would 
     happen to the proposed statute once it were challenged in 
     court.
       The new proposed statute is grounded in Constitutional 
     error in two ways. First, and most obvious, is the 
     implication made in Section (2) of the ``Findings'' clause 
     which suggests that the proposed Flag Protection Amendment is 
     an alteration of the Bill of Rights. It is no such thing, as 
     I and others testified before the House and Senate 
     Subcommittees this summer. The proposed Amendment does 
     nothing to alter the guarantee of the freedom of speech in 
     the First Amendment. Once the Flag Protection Amendment 
     becomes law, no one will find themselves unable to express 
     any ideas; only one particularly odious act will have been 
     barred, an act that is, after all, as Chief Justice Rehnquist 
     suggested, more like ``an inarticulate grunt,'' than the 
     expression of a political view. The Proposed Flag Protection 
     Amendment merely returns Constitutional law to where it was 
     in 1989, where it was before Johnson, and where it had been 
     for over a hundred years. The Flag Protection Amendment, in 
     other words, merely corrects the erroneous constitutional 
     interpretation of the majority in the Johnson case. It 
     returns us to the view that the Bill of Rights has nothing to 
     say which bars flag protection legislation, a view that was 
     not only held by Justice Rehnquist, but also by such well 
     known defenders of the Bill of Rights as Hugo Black and Earl 
     Warren, as I and others made clear in our Congressional 
     testimony on the Amendment.
       The second clear constitutional error made by the proposed 
     statute is the assumption, also expressed in the ``Findings'' 
     section, that the proposed statute can be successfully 
     grounded in the ``fighting words'' doctrine, in the notion 
     that the statute could (without a supporting Constitutional 
     Amendment) be justified because flag desecration presents ``a 
     direct threat to the physical and emotional well-being of 
     individuals,'' or in the notion that flag desecration might 
     be intended to ``incite a violent response.'' These 
     justifications have already been clearly rejected by the 
     Supreme Court. In the Johnson case itself, the court stated:
       ``The State's position, therefore, amounts to a claim that 
     an audience that takes serious offense at particular 
     expression is necessarily likely to disturb the peace and 
     that the expression may be prohibited on this basis. . . Our 
     precedents do not countenance such a presumption. On the 
     contrary, they recognize that a principal ``function of free 
     speech under our system of government is to invite dispute. 
     It may indeed best serve its high purpose when it induces a 
     condition of unrest, creates dissatisfaction with conditions 
     as they are, or even stirs people to anger.'' . . . It would 
     be odd indeed to conclude both that ``if it is the speaker's 
     opinion that gives offense, that consequence is a reason for 
     according it constitutional protection,''. . . and that the 
     government may ban the expression of certain disagreeable 
     ideas on the unsupported presumption that their very 
     disagreeableness will provoke violence.''
       Texas v. Johnson, 491 U.S., at 408-409 (1989) (citations 
     and footnotes omitted). In other words, the very 
     justification now offered by the three Senators for their 
     legislation was the very position of Texas rejected in 
     Johnson. In Johnson the court expressly rejected the 
     application of the ``fighting words'' or imminent breach of 
     the peace rationales offered by Texas (and offered by the 
     three senators), and then went on to declare, ``No reasonable 
     onlooker would have regarded Johnson's generalized expression 
     of dissatisfaction with the policies of the Federal 
     Government [his act of flag-burning] as a direct personal 
     insult or an invitation to exchange fisticuffs.'' 491 U.S., 
     at 409. The court would be bound to reach the same conclusion 
     in any test of S. 1335.
       Taken together U.S. v. Eichman and Texas v. Johnson, in my 
     opinion, make as clear as can be that the Supreme Court would 
     find S. 1335 to be an impermissible attempt to engage in the 
     kind of content discrimination in expression that the Court 
     has declared constitutionally invalid. I think that the 
     Court's reasoning is faulty when what we are speaking of is 
     preventing flag desecration, since I do not regard that as 
     the kind of speech the Framers of the First Amendment sought 
     to protect. Nevertheless, since the Court has been obdurate 
     on this point, it is now clear that only a Constitutional 
     Amendment can protect the flag in the manner Senators 
     McConnell, Bennett, and Dorgan indicate that they clearly 
     desire. My feeling is that rather than fearing such a 
     Constitutional Amendment they should embrace it. It is a 
     profound demonstration of the feeling of the American people, 
     and is the people's time-honored way of correcting erroneous 
     constitutional interpretations of the Supreme Court. The 
     proposed Flag Protection Amendment is no infringement of the 
     Bill of Rights, it is, instead, a wonderful exercise in the 
     popular sovereignty the Bill of Rights was designed to 
     protect.
       Please forgive me for going on at such length. As you can 
     tell, I feel strongly on this issue, and believe the Flag 
     Protection Amendment is sorely needed. Please let me know if 
     I can provide any further assistance.
           With very best wishes,
                                               Stephen B. Presser.

  Mr. THURMOND. Mr. President, I believe it is time for the Senate to 
join with the House in heeding the will of the American people by 
passing this amendment and sending it to the States for ratification.
  Mr. President, I ask unanimous consent that a list of 105 
organizations of the Citizens Flag Alliance, supporting Senate Joint 
Resolution 31, be printed in the Record at this point.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

                     Citizens Flag Alliance, Inc.,


                          Member Organizations

       1. AMVETS (American Veterans of WWII, Korea and Vietnam).
       2. African-American Women's Clergy Association.
       3. Air Force Association.
       4. Air Force Sergeants Association.
       5. Alliance of Women Veterans.
       6. American Diamond Veterans, National Association.
       7. American GI Forum of the U.S.
       8. American GI Forum of the U.S., Founding Chapter.
       9. The American Legion.
       10. American Legion Auxiliary.
       11. American Merchant Marine Veterans.
       12. American War Mothers.
       13. Ancient Order of Hibernians.
       14. Association of the U.S. Army.
       15. Baltic Women's Council.
       16. Benevolent & Protective Order of the Elks.
       17. Bunker Hill Monument Association, Inc.
       18. Catholic Family Life Insurance.
       19. The Chosin Few.
       20. Congressional Medal of Honor Society of the USA.
       21. Croatian American Association.
       22. Croatian Catholic Union.
       23. Czech Catholic Union.
       24. Czechoslovak Christian Democracy in the U.S.A.
       25. Drum Corps Associates.
       26. Enlisted Association National Guard U.S. (EANGUS).
       27. Family Research Council.
       28. Fleet Reserve Association.
       29. The Forty & Eight (La Societe des Quarante Hommes et 
     Huit Chevaux).
       30. Fox Associates, Inc.
       31. Gold Star Wives of America, Inc.
       32. Grand Aerie, Fraternal Order of Eagles.
       33. Grand Lodge Fraternal Order of Police.
       34. Grand Lodge of Masons of Oklahoma.
       
[[Page S18324]]

       35. Great Council of Texas, Order of Red Men.
       36. Hugarian Association.
       37. Hungarian Reformed Federation of America.
       38. Italian Sons and Daughters of America.
       39. Knights of Columbus.
       Korean American Association of Greater Washington.
       41. Laborers' International Union of N.A.
       42. MBNA America.
       43. Marine Corps League.
       44. Marine Corps Mustang Association, Inc.
       45. Marine Corps Reserve Officers Association.
       46. Military Order of the Purple Heart of the USA.
       47. Moose International.
       48. National Alliance of Families.
       49. National Association for Uniformed Services.
       50. National Center for Public Policy Research.
       51. National Cosmetology Association.
       52. National Federation of American Hungarians, Inc.
       53. National Federation of Hungarian-Americans.
       54. National Federation of State High School Associations.
       55. National Flag Foundation.
       56. National Grange.
       57. National Guard Association of the U.S.
       58. National League of Families of Am. Prisoners and 
     Missing in SE Asia.
       59. National Officers Association (NOA).
       60. National Organization of World War Nurses.
       61. National Service Star Legion.
       62. National Sojourners, Inc.
       63. National Vietnam Veterans Coalition.
       64. Native Daughters of the Golden West.
       65. Native Sons of the Golden West.
       66. Navajo Codetalkers Association.
       67. Navy League of the U.S.
       68. Navy Seabee Veterans of America.
       69. Navy Seabee Veterans of America Auxiliary.
       70. Non-Commissioned Officers Association.
       71. PAC Craft Sailors Association.
       72. Patrol Craft Sailors Association.
       73. Polish American Congress.
       74. Polish Army Veterans Association (S.W.A.P.).
       75. Polish Falcons of America.
       76. Polish Falcons of America--District II.
       77. Polish Home Army.
       78. Polish Legion of American Veterans, USA.
       79. Polish National Alliance.
       80. Polish National Union.
       81. Polish Roman Catholic Union of North America.
       82. Polish Scouting Organization.
       83. Polish Western Association.
       84. Polish Women's Alliance.
       85. RR Donnelley & Sons, Company.
       86. Robinson International.
       87. Scottish Rite of Freemasonry--Northern Masonic 
     Jurisdiction.
       88. Scottish Rite of Freemasonry--Southern Jurisdiction.
       89. Sons of The American Legion.
       90. The Orchard Lakes Schools.
       91. The Retired Enlisted Association (TREA).
       92. The Travelers Protective Association.
       93. The Uniformed Services Association (TUSA).
       94. Ukrainian Gold Cross.
       95. United Armed Forces Association.
       96. U.S. Coast Guard Enlisted Association.
       97. U.S. Marine Corps Combat Corresponents Association.
       98. U.S. Pan Asian American Chamber of Commerce.
       99. U.S.A. Letters, Inc.
       100. U.S.C.G. Chief Petty Officers Association.
       101. Veterans of the Vetnam War, Inc.
       102. VietNow.
       103. Women's Army Corps Veterans Association.
       104. Women's Overseas Service League.
       105. Woodmen of the World.
       Total Count: 105.
       June 26, 1995.

  Mr. THURMOND. Mr. President, I hope Senators read this list of the 
Citizens Flag Alliance member organizations, like the AMVETS, the 
American Legion--not only the veterans organizations, but law 
enforcement organizations, religious organizations, and fraternal 
organizations all over this Nation, 105 of them. That is what I am 
putting in the Record. I hope the Senate will take occasion to read 
this list and that the Congress will pass this amendment without 
further debate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SIMON. Mr. President, if the Senator from Utah desires the floor, 
I will yield to him.
  Mr. HATCH. Will the Senator yield? I ask unanimous consent the 
distinguished Senator from Illinois be granted 5 minutes, and I ask 
further unanimous consent I be then recognized to call up an amendment 
or modification and to speak to that for a few minutes. Then I ask 
unanimous consent the distinguished Senator from South Carolina be next 
recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SIMON. Mr. President, I am proud of the flag. I remember one of 
the times when I was in the Armed Forces before I went overseas. When 
you were at a football game and they played the ``Star Spangled 
Banner'' and you could salute that flag in that uniform, you had to be 
cold hearted if you did not get a thrill out of it.
  At my home in rural southern Illinois, you will see a flag flying. We 
are proud of that flag. But I strongly oppose a constitutional 
amendment.
  What is the big problem? The Congressional Reference Bureau says, in 
1994, three flags around the Nation were burned. In 1993, how many 
flags were burned around the Nation? Zero. If we adopt an amendment to 
the Constitution, there will be more flags burned in protest, not 
fewer. There will always be somebody who is so extreme that he or she 
is going to do it. And, if we ban the burning of the flag, what about 
the Constitution? You know, prior to the Civil War, in Massachusetts, 
because the Constitution permitted slavery, you had over 3,000 people 
gathered in the home State of my colleague from Massachusetts who 
gathered and burned the Constitution. Are we going to have another 
amendment to ban burning the Constitution?
  What about the Bible? That is certainly sacred to millions of 
Americans. Are we going to make a constitutional amendment on that?
  Take a look at the New York Times, June 22, 1989. ``Supreme Court, 5 
to 4.'' I happened to disagree with that decision. Incidentally, 
Justice Hugo Black earlier disagreed with that idea. But by a 5 to 4 
majority, including Justice Scalia in the majority, the Supreme Court 
said you can, as part of freedom of expression, burn the flag.
  Right next to it on the front page of the New York Times it says, 
``Chinese Execute Three in Public Display for Protest Role.'' That is 
what America is all about, that we can protest in freedom. I do not 
happen to like protests with burning the flag. But we can stand up and 
do that.
  Mr. President, prior to your coming here, one of the most 
conservative men I ever served with in the U.S. Congress was Senator 
Gordon Humphrey of New Hampshire. He was more conservative than Senator 
Thurmond who just spoke and usually was listed as more conservative 
than Senator Helms. He got up in opposition to this amendment on the 
floor. Listen to what Gordon Humphrey had to say.

       I understand the revulsion and the disgust and the popular 
     cry for remedy that arose out of the Johnson decision. I 
     understand that very well. But it seems to me there are times 
     when this body at least ought to be able to rise above 
     popular passion and Gallup polls and political leverage for 
     the next elections and do what is right for posterity. Lord 
     knows, we do not do it with respect to the budget process or 
     any fiscal matters. Let us at least do it with respect to our 
     precious natural rights and the preservation of the 
     Constitution.

  Gordon Humphrey, one of the most conservative Members that Senator 
Hatch or Senator Kennedy or Senator Heflin or Senator Hollings or I 
served with.
  You do not get patriotism by passing laws. We get patriotism by 
having the kind of government our Americans can be proud of. And, for 
all its flaws, I am proud of this Government and I am proud of the flag 
that represents that Government. But, to start, because three people 
last year burned a flag, and say we are going to rush in to having a 
constitutional amendment, that is ridiculous. That is not honoring the 
Constitution as we should.
  Mr. President, I yield the floor. I thank my colleague from Utah for 
his courtesy.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I thank my colleague from Illinois. I do not agree with 
him, but I thank him. He is ever so gracious.


                           Amendment No. 3094

   (Purpose: To strike the authorization with respect to the States)

  Mr. HATCH. Mr. President I send an amendment to the desk in the 
nature of a substitute for and on behalf of myself, Senator Heflin, and 
Senator Feinstein.
  I ask for its immediate consideration.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
laid aside.
  The clerk will report.
  The legislative clerk read as follows:


[[Page S18325]]

       The Senator from Utah [Mr. Hatch], for himself, Mr. Heflin, 
     and Mrs. Feinstein, proposes an amendment numbered 3094.

  Mr. HATCH. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the resolving clause and insert the 
     following:

     That the following article is proposed as an amendment to the 
     Constitution of the United States, which shall be valid to 
     all intents and purposes as part of the Constitution when 
     ratified by the legislatures of three-fourths of the several 
     States within seven years after the date of its submission 
     for ratification:


                              ``Article --

       ``The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.''.

  Mr. HATCH. Mr. President, all this amendment does is delete the 
States from the original amendment. It will become the underlying 
amendment that others will try to amend.
  So I ask unanimous consent that the amendment be agreed to.
  I withhold that.
  Mr. BYRD. Mr. President, reserving the right to object.


                       Tribute to Senator Heflin

  Mr. HATCH. Let me just say this, Mr. President. I would like to spend 
a minute or two talking about my friend, Senator Heflin. Let me just 
ask my colleagues for their indulgence for a few moments.
  I would like to express my appreciation to my colleague from Alabama, 
Senator Howell Heflin. This is the Hatch-Heflin amendment and Senator 
Heflin and his staff have worked very hard in its favor.
  Many of us know Howell Heflin as a fine lawyer, judge, and Senator. I 
am not sure my colleagues are aware of another side of the man. I know 
that others in the Senate served in the military. I know Senator 
Thurmond, for example, took part in the Normandy invasion and fought in 
both the European and Pacific theaters. He parachuted behind the lines 
in those days, and he is a hero to all of us.
  Howell Heflin won the Silver Star as a Marine officer in World War II 
and later, in the same conflict, was wounded in the hand and leg.
  The Birmingham News of October 10, 1944, has quite a story on our 
colleague, noting that ``he is home again in Alabama to modestly and 
reluctantly tell the stories of a Marine first lieutenant's not-to-be-
envied life in the Pacific.'' Nearly 50 years later, in a 1994 D-day 
story in the Washington Times, the reporter remarked, ``When discussing 
these battles, the senator never uses the personal pronoun. It's always 
`we,' referring to the Marines who fought beside him. He is clearly 
made uncomfortable when asked to comment on his personal valor.''
  You can blame our two staffs, Senator Heflin, and I believe our 
colleagues and the listening audience should know this about our 
colleague: This is signed by James Forrestal, Secretary of the Navy, 
from the citation in presenting the Silver Star to him:

       For conspicuous gallantry and intrepidity as Commanding 
     Officer of an Assault Platoon attached to a company of the 
     First Battalion, Ninth Marines, Third Marine Division, during 
     the Battle of Piva Forks, Bougainville, Solomon Islands, on 
     November 25, 1943. When his men were subjected to intense 
     fire from hostile mortars and automatic weapons while 
     advancing on a strongly organized and defended Japanese 
     position, First Lieutenant Heflin promptly and skillfully 
     deployed his platoon and courageously led it through 
     difficult jungle terrain under a barrage of grenades and 
     gunfire to the edge of the enemy's position. Directing his 
     troops in a vigorous, prolonged battle, he frequently exposed 
     himself to devastating fire at close range in order to 
     control the attack more effectively and, by his unflinching 
     determination and aggressive fighting spirit, contributed 
     materially to the defeat of the enemy and the attainment of 
     his company's objective. First Lieutenant Heflin's expert 
     leadership and fearless conduct under extremely hazardous 
     conditions were in keeping with the highest traditions of the 
     United States Naval Service.

  One of his fellow marines from Alabama in the same division, Conrad 
Fowler, tells a story in the February 12, 1995, Birmingham News. The 
young Heflin was among the first wave to storm Guam, the year following 
Bougainville. There, he was wounded as I mentioned earlier, and Mr. 
Fowler helped evacuate him.

       Howell was a big guy and we found four of the biggest 
     Marines we could find to carry his stretcher, said Mr. 
     Fowler. The last I saw of them they were going over a hill 
     toward the beach, and Howell was limping along with a stick, 
     and the four Marines were following him, carrying the empty 
     stretcher.

  Here is the bottom line. We can say, nearly 52 years later, as he 
approaches the close of his public service next year, that the words 
used to describe Howell Heflin at the outset of his service to his 
country have marked the man throughout his life: ``unflinching 
determination''; ``aggressive fighting spirit''; ``expert leadership''; 
and, ``fearless conduct.''
  I want him to know how much I appreciate working with him in the 
Senate and on the Judiciary Committee. and, in particular, on this very 
important amendment that I think would set the tone in this country and 
would establish a debate on values all over this country that is long 
overdue.


                               Compromise

  Mr. HATCH. Having said that, Mr. President, on behalf of Senator 
Heflin, Senator Feinstein, and myself, what we have offered here is a 
compromise. It deletes the States from the amendment. Only Congress 
will be given power to protect the flag, if this amendment is adopted.
  If the amendment I have offered is adopted, the revised amendment 
would read as follows:
  ``The Congress shall have power to prohibit the physical desecration 
of the flag of the United States.''
  This means that only Congress will define the flag of the United 
States. Only Congress will determine what conduct is illegal. There 
will not be 50 or 51 different laws protecting the flag, just one. So 
those who are concerned about a multiplicity of flag protection laws, 
those who are unwilling to let State legislators handle this issue--the 
amendment just offered will meet those concerns. We have, frankly, gone 
a long way with this amendment. Frankly, I did not want to make this 
concession. Restoring the state of the law prior to the Supreme Court's 
errors in Johnson and Eichman seems perfectly appropriate to this 
Senator, and quite a few of my colleagues. But I am faced with the task 
of trying to assemble 66 votes, and I could not count on those votes 
with Senate Joint Resolution 31 as introduced. We have a better chance 
if we limit power to protect the flag to Congress. This would, if 
ratified, still authorize meaningful protection for the flag.
  With some reluctance, the American Legion and the Citizens Flag 
Alliance support the amendment. Sometimes compromise is necessary in 
order to try to get the votes needed to pass a particular measure. We 
are trying to gain the necessary support for a flag protection 
amendment by seeking to delete the States from the amendment. I believe 
the flag protection amendment supporters in the other body would accept 
such a compromise.
  I urge all of the cosponsors and other supporters of Senate Joint 
Resolution 31 as introduced, to support this amendment. I ask the 
opponents of Senate Joint Resolution 31 as introduced to bend a little, 
as well. Let us send a revised amendment to the other body and to the 
States and offer the flag protection at the Federal level.
  I also hope that President Clinton will reconsider his opposition to 
a constitutional amendment protecting. We have gone more than halfway 
on this.


                             compromise ii

  Mr. President, under the substitute I have offered, along with 
Senators Heflin and Feinstein, only Congress can write a statute 
protecting the American flag. With reluctance, the American Legion and 
the Citizens Flag Alliance have endorsed this substitute.
  For those of my colleagues who have been worried about letting the 
American people have the power to protect the flag through their State 
legislatures, they need worry no longer. For those of my colleagues who 
do not trust State legislators to protect the American flag in a 
reasonable way, their concerns are over with this amendment.
  My question to those colleagues is this: Do you trust yourselves to 
write a reasonable statute protecting the American flag? If the 
amendment is ratified, there are ample safeguards. Here in the Senate, 
members of the Judiciary Committee on both sides of the aisle are going 
to be vigilant in writing the statute sent to the floor. The cloture 
rule provides ample protection to 

[[Page S18326]]
a minority of Senators who disapprove of any such statute pending on 
the Senate floor. The President can veto a measure he does not like, 
requiring a two-thirds vote. We already know how difficult it is to try 
to get such a vote on this issue.
  Some of my colleagues are concerned about flag bathing suits. This 
was, in my view, an exaggerated concern at best, but I have not heard 
any of the congressional supporters of the amendment express a desire 
to cover bathing suits. Senators Kennedy, Leahy, Simon, and Feingold 
raised the question in the committee views: ``Would desecration include 
flying the flag over a brothel?'' That is on page 77 of their views. 
Since the amendment talks about physical desecration of the flag, this 
concern was, frankly, totally misplaced to begin with. But since they 
will have a say in writing the only statute authorized by the 
substitute amendment, I hope their concerns have been substantially 
reduced.
  This is not the time and place to consider what a Federal statute 
will look like and I have not given it much consideration because it is 
premature to do so. But I do pledge that we will have fair 
consideration concerning a proposed statute, if Congress and the States 
ratify the amendment.

  Mr. President, we have made a major concession. With the deletion of 
the States from the amendment, continued opposition to the amendment 
means just one thing: It is simply not important enough to protect the 
American flag by amendment, even with one uniform Federal standard 
throughout the Nation. I hope that some of my colleagues who have 
opposed this amendment in the past will seriously reconsider their 
opposition. I think this is a compromise everyone can defend.
  The notion that physical desecration of the American flag is a 
fundamental right is an invention of five Supreme Court Justices who 
made a mistake. If just one Justice had come out the other way, we 
would not even be on the floor of the Senate debating this issue today.
  And something else would also be true: The liberties of the American 
people, including freedom of speech, would be intact. Our liberties 
seemed to survive the 1 Federal statute and 48 State statutes 
protecting the flag remarkably well. But to listen to the overwrought, 
overblown, and misplaced concerns of the critics of the amendment, one 
would think we were living in the Dark Ages prior to 1989, when the 
Supreme Court effectively struck them all down. What nonsense. Indeed, 
the irony is, as I pointed out last Wednesday, during the time these 
flag protection statutes were put on the books, the parameters of 
freedom of speech actually expanded in this country.
  We can protect the flag, preserve our liberties, and give voice to a 
fundamental value Americans hold dear, protection of the flag that 
represents them, their ideals, their principles, their history, and 
their future.
  One final note, Mr. President. And that is, what is wrong with 
letting the American people make the determination here? Should three-
quarters of the States ratify this amendment, what is wrong with 
trusting Congress to write a reasonable statute that would determine 
once and for all what physical desecration is all about? We can do it, 
and we can do it right without infringing upon scarves or swimming 
suits or sweaters or ties or any number of other items which can be 
worn with great pride and belief in the flag of the United States.
  Mr. President, I ask unanimous consent--and I understand this has 
been agreed to by both sides--I ask unanimous consent that our 
amendment, the Hatch-Heflin-Feinstein amendment be agreed to and that 
it be considered as original text for purposes of further amendment so 
these other amendments can be considered.
  Mr. BYRD. Mr. President, reserving the right to object, and I will 
not object----
  Mr. HATCH. I thank the Senator.
  Mr. BYRD. Mr. President, under my reservation, it is my understanding 
that Mr. Hollings has gotten unanimous consent to speak immediately 
following the conclusion of Mr. Hatch's remarks.
  I ask unanimous consent that at the conclusion of the remarks by Mr. 
Hollings, I may be recognized for not to exceed 45 minutes to speak out 
of order.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. BYRD. I have no objection to the previous request. I have been 
asked by Mr. Kennedy to request that at the conclusion of my remarks 
he, Mr. Kennedy, be recognized for not to exceed 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank all Senators.
  Mr. HATCH. I ask that my unanimous-consent request be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendment (No. 3094) was agreed to.
  Mrs. FEINSTEIN addressed the Chair.
  Mr. HATCH. I urge the amendment be agreed to.
  The PRESIDING OFFICER. The amendment has been agreed to by unanimous 
consent.
  Mr. HATCH. It has been agreed to. All right. Then I move to 
reconsider.
  Mr. BYRD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. HATCH. Mr. President, I ask unanimous consent that immediately 
following the remarks of Senator Kennedy, who will follow Senator 
Hollings and Senator Byrd, Senator Feinstein be given an opportunity to 
speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I thank my colleagues.
  Mr. HOLLINGS addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, I have before us this afternoon two 
opportunities that could be looked upon by my distinguished colleague 
from West Virginia as not an opportunity at all.
  We have debated the balanced budget amendment to the Constitution 
already for a month this year. And on Friday, when we were formulating 
a unanimous-consent agreement, I was asked by our distinguished staff 
if I had amendments. I said I had two amendments. They cautioned that I 
would perhaps have to be prepared to debate them on Monday. I said I 
would be delighted. They said it could be under a time limitation. I 
said that would be very much agreeable to this particular Senator.
  A point of order could be raised perhaps about the relevancy of my 
amendment, and if it were and I was ruled not to be in order, I would 
have to appeal that in order to get a vote.
  This particular Senator has waited all year long. I have carried 
around in my pocket the amendment itself. I know the distinguished 
Speaker of the House has his contract. The distinguished Senator from 
West Virginia has the Constitution that he carries around in his 
pocket. There he is. And I have dutifully--in order to bring the truth 
to the American public--carried around an amendment to the Constitution 
for a balanced budget that did not repeal the formal statutory law 
signed by President Bush, section 13301 of the code of laws of the 
United States.
  Under the Budget Act, it would not repeal that law but provide, of 
course, for a balanced budget. Specifically, Mr. President, if you 
looked at Section 7, under Senate Joint Resolution 1, that we debated 
for a month, you can see that all outlays and all revenues be included 
of the U.S. Government. And that repeals, if you please, that section 
of the code, which I ask unanimous consent to be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Subtitle C--Social Security

     SEC. 13301. OFF-BUDGET STATUS OF OASDI TRUST FUNDS.

       (a) Exclusion of Social Security From All Budgets.--
     Notwithstanding any other provision of law, the receipts and 
     disbursements of the Federal Old-Age and Survivors Insurance 
     Trust Fund and the Federal Disability Insurance Trust Fund 
     shall not be counted as new budget authority, outlays, 
     receipts, or deficit or surplus for purposes of--
       (1) the budget of the United States Government as submitted 
     by the President,
       (2) the congressional budget, or
       (3) the Balanced Budget and Emergency Deficit Control Act 
     of 1985.
       (b) Exclusion of Social Security From Congressional 
     Budget.--Section 301(a) of the Congressional Budget Act of 
     1974 is 

[[Page S18327]]
     amended by adding at the end the following: ``The concurrent resolution 
     shall not include the outlays and revenue totals of the old 
     age, survivors, and disability insurance program established 
     under title II of the Social Security Act or the related 
     provisions of the Internal Revenue Code of 1986 in the 
     surplus or deficit totals required by this subsection or in 
     any other surplus or deficit totals required by this 
     title.''.

  Mr. HOLLINGS. Now, Mr. President, I am reading, of course, from my 
proposed constitutional amendment--and it is important that this 
reading be made formal here--that ``outlays of the Federal Old Age and 
Survivors Insurance Trust Fund and Federal Disability Insurance Trust 
Fund, as and if modified to preserve the solvency of the funds used to 
provide Old Age, Survivors and Disability benefits, shall not be 
counted as receipts or outlays for the purpose of this article.''
  There is no question, Mr. President, that the intent of the Congress 
is in that particular regard. Very recently, on November 13, I believe 
it was, we voted just exactly that particular instruction. On November 
13, by a vote of 97 to 2, we voted to instruct the conferees on the 
budget that Social Security trust funds not be used.
  So the Senators themselves have affirmed that less than a month ago.
  I ask unanimous consent that rollcall vote be printed in the Record.
  There being no objection, the vote was ordered to be printed in the 
Record, as follows:

                       Vote of November 13, 1995

                      [Rollcall Vote No. 572 Leg.]

                                YEAS--97

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Pell
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                             NOT VOTING--2

     Gramm
     Lugar
       

  Mr. HOLLINGS. I ask also unanimous consent that the record of the 
Budget Committee vote on July 10, 1990, on the protection of Social 
Security be printed in the Record.
  There being no objection, the vote was ordered to be printed in the 
Record, as follows:

     Hollings Motion To Report the Social Security Preservation Act

       The Committee agreed to the Hollings motion to report the 
     Social Security Preservation Act by a vote of 20 yeas to 1 
     nay:
       Yeas:
       Mr. Sasser, Mr. Hollings, Mr. Johnston, Mr. Riegle, Mr. 
     Exon, Mr. Lautenberg, Mr. Simon, Mr. Sanford, Mr. Wirth, Mr. 
     Fowler, Mr. Conrad, Mr. Dodd, Mr. Robb, Mr. Domenici, Mr. 
     Boschwitz, Mr. Symms, Mr. Grassley, Mr. Kasten, Mr. Nickles, 
     Mr. Bond.
       Nays:
       Mr. Gramm.

  Mr. HOLLINGS. I am trying to save time for my colleagues.
  And I ask also unanimous consent that the record vote that occurred 
on October 18, 1990, a vote of 98 to 2, approving that Social Security 
protection be printed in the Record.
  There being no objection, the vote was ordered to be printed in the 
Record, as follows:

 Hollings-Heinz, et al., Amendment Which Excludes the Social Security 
 Trust Funds From the Budget Deficit Calculation, Beginning in Fiscal 
                               Year 1991


                               YEAS (98)

       Democrats (55 or 100%):
       Adams, Akaka, Baucus, Bentsen, Biden, Bingaman, Boren, 
     Bradley, Breaux, Bryan, Bumpers, Burdick, Byrd, Conrad, 
     Cranston, Daschle, DeConcini, Dixon, Dodd, Exon, Ford, 
     Fowler, Glenn, Gore, Graham, Harkin, Heflin, Hollings, 
     Inouye, Johnston, Kennedy, Kerrey, Kerry, Kohl, Lautenberg, 
     Leahy, Levin, Lieberman, Metzenbaum, Mikulski, Mitchell, 
     Moynihan, Nunn, Pell, Pryor, Reid, Riegle, Robb, Rockefeller, 
     Sanford, Sarbanes, Sasser, Shelby, Simon, Wirth.
       Republicans (43 or 96%):
       Bond, Boschwitz, Burns, Chafee, Coats, Cochran, Cohen, 
     D'Amato, Danforth, Dole, Domenici, Durenberger, Garn, Gorton, 
     Gramm, Grassley, Hatch, Hatfield, Heinz, Helms, Humphrey, 
     Jeffords, Kassebaum, Kasten, Lott, Lugar, Mack, McCain, 
     McClure, McConnell, Murkowski, Nickles, Packwood, Pressler, 
     Roth, Rudman, Simpson, Specter, Stevens, Symms, Thurmond, 
     Warner, Wilson.


                                NAYS (2)

       Democrats (0 or 0%)
       Republicans (2 or 4%)
       Armstrong, Wallop.

  Mr. HOLLINGS. The reason I do that is so that you shall know how 
Members vote--not just how they speak but how they cast their formal 
votes.
  There has been raised, at the particular time back in February, the 
idea, of course, that the trust funds need not be protected further, 
that we could always do it by statute.
  I ask unanimous consent at this particular point that the letter from 
the American Law Division of the Congressional Research Service dated 
February 6, 1995, be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   Congressional Research Service,


                                      the Library of Congress,

                                 Washington, DC, February 6, 1995.
     To: Senator Dianne Feinstein
     Attention: Mark Kadesh
     From: American Law Division
     Subject: Whether the Social Security Trust Funds Can Be 
       Excluded From the Calculations Required by the Proposed 
       Balanced Budget Amendment

       This is to respond to your request to evaluate whether 
     Congress could by statute or resolution provide that certain 
     outlays or receipts would not be included within the term 
     ``total outlays and receipts'' as used in the proposed 
     Balance Budget Amendment. Specifically, you requested an 
     analysis as to whether the Federal Old-Age and Survivors 
     Insurance Trust Fund and the Federal Disability Insurance 
     Trust Fund could be exempted from the calculation necessary 
     to determine compliance with the constitutional amendment 
     proposed in H.J. Res. 1, which provides that total 
     expenditures will not exceed total outlays.\1\
     Footnotes at end of letter.
---------------------------------------------------------------------------
       Section 1 of H.J. Res. 1, as placed on the Senate Calendar, 
     provides that total outlays for any fiscal year will not 
     exceed total receipts for fiscal year, unless authorized by 
     three-fifths of the whole number of each House of Congress. 
     The resolution also states that total receipts shall include 
     all receipts of the United States Government except those 
     derived from borrowing, and that total outlays shall include 
     all outlays of the United States Government except for those 
     used for repayment of debt principal. These requirements can 
     be waived during periods of war or serious threats to 
     national security.
       Under the proposed language, it would appear that the 
     receipts received by the United States which go to the 
     Federal Old-Age and Survivors Insurance Trust Fund and the 
     Federal Disability Insurance Trust Fund would be included in 
     the calculations of total receipts, and that payments from 
     those funds would similarly be considered in the calculation 
     of total outlays. This is confirmed by the House Report 
     issued with H.J. Res. 1.\2\ Thus, if the proposed amendment 
     was ratified, then Congress would appear to be without the 
     authority to exclude the Social Security Trust Funds from the 
     calculations of total receipts and outlays under section 1 of 
     the amendment.\3\

                                            Kenneth R. Thomas,

                                             Legislative Attorney,
                                            American Law Division.


                               footnotes

     \1\H.J. Res. 1, 104th Congress, 1st Sess. (January 27, 1995) 
     provides the following proposed constitutional amendment--
     Section 1. Total outlays for any fiscal year shall not exceed 
     total receipts for that fiscal year, unless three-fifths of 
     the whole number of each House of Congress shall provide by 
     law for a specific excess of outlays over receipts by a 
     rollcall vote.
     Section 2. The limit on the debt of the United States held by 
     the public shall not be increased, unless three-fifths of the 
     whole number of each House shall provide by law for such an 
     increase by a rollcall vote.
     Section 3. Prior to each fiscal year, the President shall 
     transmit to the Congress a proposed budget for the United 
     States Government for that fiscal year in which total outlays 
     do not exceed total receipts.
     Section 4. No bill to increase revenue shall become law 
     unless approved by a majority of the whole number of each 
     House by a rollcall vote.
     Section 5. The Congress may waive the provisions of this 
     article for any fiscal year in which a declaration of war is 
     in effect. The provisions of this article may be waived for 
     any fiscal year in which the United States is engaged in 
     military conflict which causes an imminent and serious 
     military threat to national security and is so declared by a 
     joint resolution, adopted by a majority of the whole number 
     of each House, which becomes law.
     Section 6. The Congress shall enforce and implement this 
     article by appropriate legislation, which may rely on 
     estimates of outlays and receipts.
     Section 7. Total receipts shall include all receipts of the 
     United States Government except those derived from borrowing. 
     Total outlays shall include all outlays of the United States 
     Government except for those for repayment of debt principal.
     Section 8. This article shall take effect beginning with 
     fiscal year 2002 or with the second fiscal year beginning 
     after its ratification, whichever is later.
     \2\House Rept. 104-3, 104th Congress, 1st Session states the 
     following:
     ``The committee concluded that exempting Social Security from 
     computations of receipts and outlays 

[[Page S18328]]
     would not be helpful to Social Security beneficiaries. Although Social 
     Security accounts are running a surplus at this time, the 
     situation is expected to change in the future with a Social 
     Security related deficit developing. If we exclude Social 
     Security from balanced budget computations, Congress will not 
     have to make adjustments elsewhere in the budget to 
     compensate for this projected deficit. . . .'' Id. at 11.
     It should also be noted that an amendment by Representative 
     Frank to exempt the Federal Old-Age and Survivors Insurance 
     Trust Fund and the Federal Disability Insurance Trust Fund 
     from total receipts and total outlays was defeated in 
     committee by a 16-19 rollcall vote. Id. at 14. A similar 
     amendment by Representative Conyers was defeated in the 
     House, 141 Cong. Rec. H741 (daily ed. January 23, 1995), as 
     was an amendment by Representative Wise. Id. at H731.
     \3\Although the Congress is given the authority to implement 
     this article by appropriate legislation, there is no 
     indication that the Congress would have the authority to pass 
     legislation which conflicts with the provisions of the 
     amendment.

  Mr. HOLLINGS. There are two sentences I will read again, trying to 
save time. ``If the proposed amendment was ratified''--that is, Senate 
Joint Resolution 1--``then Congress would appear to be without 
authority to exclude the Social Security trust funds from the 
calculations of total receipts and outlays under section 1 of the 
amendment.''
  Then down at the bottom a footnote: ``Although the Congress is given 
the authority to implement this article by appropriate legislation, 
there is no indication that Congress would have the authority to pass 
legislation which conflicts with the provision of this amendment.''
  So that is why it is very, very important to several on this side of 
the aisle--because we were in a very, very heated exchange relative, of 
course, to the particular balanced budget amendment to the 
Constitution. And thereby on March 1, five of us on the Democratic side 
of the aisle sent a letter to the majority leader, Robert Dole, the 
principal author of Senate Joint Resolution 1, stating that we were 
ready, willing, and prepared to vote to pass the constitutional 
amendment to balance the budget where that Social Security protection 
not be repealed.
  I ask unanimous consent that a copy of the letter dated March 1 be 
printed in the Record at this particular point.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                    March 1, 1995.
     Hon. Robert J. Dole,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Mr. Leader, we have received from Senator Domenici's 
     office a proposal to address our concerns about using the 
     Social Security trust funds to balance the Federal budget. We 
     have reviewed this proposal, and after consultations with 
     legal counsel, believe that this statutory approach does not 
     adequately protect Social Security. Specifically, 
     Constitutional experts from the Congressional Research 
     Service advise us that the Constitutional language of the 
     amendment will supersede any statutory constraint.
       We want you to know that all of us have voted for, and are 
     prepared to vote again for a balanced budget amendment. In 
     that spirit, we have attached a version of the balanced 
     budget amendment that we believe can resolve the impasse over 
     the Social Security issue.
       To us, the fundamental question is, whether the Federal 
     Government will be able to raid the Social Security trust 
     funds. Our proposal modifies those put forth by Senators Reid 
     and Feinstein to address objections raised by some Members of 
     the Majority. Specifically, our proposal closes a perceived 
     loophole in the Reid and Feinstein language regarding future 
     uses of the Social Security trust funds for purposes other 
     than those for which the system was designed.
       If the Majority Party can support this solution, then we 
     are confident that the Senate can pass the balanced budget 
     amendment with more than 70 votes. If not, then we see no 
     reason to delay further the vote on final passage of the 
     amendent.
           Sincerely,
     Byron L. Dorgan.
     Ernest F. Hollings.
     Wendell H. Ford.
     Harry M. Reid.
     Dianne Feinstein.

  Mr. HOLLINGS. So, Mr. President, it is quite obvious if the true 
intent is to really pass an amendment to the Constitution requiring a 
balanced budget, it can be done here in the next 24 hours. There is no 
problem. It is a wonderful opportunity, because we have the amendment 
drawn in the proper fashion with two particular changes to Senate Joint 
Resolution 1. The one change, of course, was the Nunn amendment about 
the judicial power not to put balanced budget questions before the 
judiciary but to retain them within the congressional branches; and, 
second, of course, to reiterate the statutory law protecting the 
Federal old age and survivors insurance trust fund and federal 
disability insurance trust fund.
  Why do I read those words out so specifically? With an intent, Mr. 
President. Again, referring to the balanced budget constitutional 
amendment report by the Committee on the Judiciary over on the House 
side, you will find in that report this sentence:

       Since Congress possesses the legislative authority to 
     change the Social Security program, specifically referring to 
     ``Social Security'' in the Constitution could create a giant 
     loophole allowing Congress to call anything Social Security 
     and thus evade balanced budget requirements.

  This particular amendment presented for the vote of my colleagues 
here does not use ``Social Security'' expressed. On the contrary, it is 
the technical formative law of the United States of America that passed 
in 1935 and up until 1969 was a trust fund and off budget.
  That was our point that we were making in 1990. We were obscuring the 
size of the deficit. In fact, Mr. President, it would be well at this 
particular point, I believe, to include, if you please, a table of the 
various deficits.
  I have before me a table of the deficits for the years beginning in 
1945 going all the way down, the U.S. budget in outlays and trust 
funds, the real deficit, the gross Federal debt and the gross interest 
cost under the various Presidents.
  From 1945 until 1996, we have gone from outlays of $92,700,000,000 to 
now outlays for this fiscal year 1996 of $1,602,000,000,000. You can 
see how it has grown like Topsy. I remember the last balanced budget. 
To bring it into the perspective of the distinguished Chair, when 
Johnson balanced the budget back in 1968-69, the entire outlay in 1968-
69 at that particular time was $178,100,000,000. Can you imagine, 
$178,100,000,000 for guns and butter, for the war in Vietnam and for 
the Great Society. And paid for with what? With a surplus at that 
particular time of $300 million. That is--no. That $300 million was 
used from the trust fund. I am looking at the statute in error here. 
Let me look at it accurately. So $300 million was used from the trust 
funds. That still left a balance of $2.9 trillion. If trust funds were 
not used really to balance that budget, we had a surplus of $3.2 
billion.
  Here was an entire budget for the Social Security, Medicare, guns and 
butter, war in Vietnam, defense, and all, welfare and all the other 
programs. We are expending, instead of the $178 billion, we are 
expending $348 billion this year just on interest costs for nothing. 
There is the real problem. And that problem is obscured in large 
measure by the use of Social Security trust funds, exactly the opposite 
as contended by my colleagues in that particular House report.
  For example, Mr. President, look at the Judiciary Committee report of 
a balanced budget constitutional amendment as submitted at that 
particular time over on the House side in January--on January 18 of 
this particular year. And here is the sentence that will blow your 
mind. ``If we exclude Social Security from balanced budget 
computations, Congress will not have to make adjustments elsewhere in 
the budget to compensate for the projected deficit.''
  If you have got that kind of logic and thought, we need custodial 
care for the Members around here. ``If we exclude Social Security from 
the balanced budget computations, Congress will not have to make 
adjustments elsewhere in the budget.'' Come on. If we exclude Social 
Security, that is where we will have to make adjustments elsewhere in 
the budget to compensate. And that is exactly the point that we have 
been trying to make time and time again that we seem to try to hide 
behind. The truth of the matter is, we are hiding this minute behind 
$481 billion owed Social Security.
  If the particular budget now in conference and now in negotiation 
between the White House and the Congress is enacted in the next 10 
minutes, by the year 2002, we will owe Social Security 
$1,117,000,000,000. In other words, in the year 2002, they could well 
turn and say, ``Whoopee, we have now preserved and protected 
Medicare.'' And then when we look around at Social Security, we say, 
``Heavens above, we have run it into the hole with over 
$1,117,000,000,000.''
  Who is going to raise taxes $1 trillion? Who is going to cut benefits 
$1 

[[Page S18329]]
trillion? That is why I have been trying to get attention of my 
colleagues that we have truth in budgeting. And that is why we have the 
amendment drawn at this particular time where people on both sides of 
the aisle--I voted for a constitutional amendment, cosponsored it with 
my senior colleague back in the 1980's, voted for it several times.
  But when I realized the import of section 7 under the Dole Senate 
Joint Resolution 1 that it was going to repeal the statutory law that I 
helped cosponsor, along with Senator Moynihan and Senator Heinz, I 
could not go in two different directions at the same time.
  As a person somewhat experienced in budgets, I was able, as Governor 
back in 1959, to get the first AAA credit rating for our State. I 
participated in the balanced budget work of 1968-69. I chaired on 
behalf of the Congress, both Houses, the first reconciliation budget 
conference, the first reconciliation bill signed into law where we cut 
back already appropriated funds in December 1980 under President 
Carter. And I put in the budget freeze. I have cosponsored, with 
Senators Gramm and Rudman, the Gramm-Rudman-Hollings initiative. And I 
have been very alert, as possibly as I can be, to make certain that we 
have truth in budgeting.
  And so it is that we have now proposed this particular amendment. I 
could go on at length as to the debate itself before I present the 
amendment.
  I have this one particular phrase of our majority whip, the 
distinguished Senator from Mississippi. In February, on national TV, 
Senator Trent Lott stated, and I quote:

       Nobody--Republican, Democrat, conservative, liberal, 
     moderate--is even thinking about using Social Security to 
     balance the budget.

  Let us hope that is the truth. I think a vote on this particular 
constitutional amendment to balance the budget would give truth to that 
particular statement. We will see exactly how they vote.


                           Amendment No. 3095

 (Purpose: To propose a balanced budget amendment to the Constitution)

  Mr. HOLLINGS. Mr. President, I have another amendment. Let me send 
this one up under the unanimous-consent agreement and ask the clerk to 
report. I think I have explained it.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The bill clerk read as follows:

       The Senator from South Carolina [Mr. Hollings] proposes an 
     amendment numbered 3095.

  Mr. HOLLINGS. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       After the first article add the following:

                              ``Article --

       ``Section 1. Total outlays for any fiscal year shall not 
     exceed total receipts for that fiscal year, unless three-
     fifths of the whole number of each House of Congress shall 
     provide by law for a specific excess of outlays over receipts 
     by a rollcall vote.
       ``Section 2. The limit on the debt of the United States 
     held by the public shall not be increased, unless three-
     fifths of the whole number of each House shall provide by law 
     for such an increase by a rollcall vote.
       ``Section 3. Prior to each fiscal year, the President shall 
     transmit to the Congress a proposed budget for the United 
     States government for that fiscal year, in which total 
     outlays do not exceed total receipts.
       ``Section 4. No bill to increase revenue shall become law 
     unless approved by a majority of the whole number of each 
     House by a rollcall vote.
       ``Section 5. The Congress may waive the provisions of this 
     article for any fiscal year in which a declaration of war is 
     in effect. The provisions of this article may be waived for 
     any fiscal year in which the United States is engaged in 
     military conflict which causes an imminent and serious 
     military threat to national security and is so declared by a 
     joint resolution, adopted by a majority of the whole number 
     of each House, which becomes law.
       ``Section 6. The Congress shall enforce and implement this 
     article by appropriate legislation, which may rely on 
     estimates of outlays and receipts. The judicial power of the 
     United States shall not extend to any case or controversy 
     arising under this article except as may be specifically 
     authorized by legislation adopted pursuant to this section.
       ``Section 7. Total receipts shall include all receipts of 
     the United States government except those derived from 
     borrowing. Total outlays shall include all outlays of the 
     United States government except those for repayment of debt 
     principal. The receipts (including attributable interest) and 
     outlays of the Federal Old-Age and Survivors Insurance Trust 
     Fund and Federal Disability Insurance Trust Fund (as and if 
     modified to preserve the solvency of the funds) used to 
     provide old age, survivors, and disabilities benefits shall 
     not be counted as receipts or outlays for the purpose of this 
     article.
       ``Section 8. This article shall take effect beginning with 
     fiscal year 2002 or with the second fiscal year beginning 
     after its ratification, whichever is later.''
  Mr. HOLLINGS. Mr. President, once again, by way of emphasis, it is 
word for word Senator Dole's House Joint Resolution 1, with the 
exception of the Nunn amendment which is included therein with respect 
to the limitation on judicial power on balanced budgets and, second, 
the Dole section 7, the language that would encompass a repeal of 
section 13301 of the Budget Act. Specifically, I repeal the repeal. I 
have provided and continue the protection of 13301.


                           Amendment No. 3096

 (Purpose: To propose a balanced budget amendment to the Constitution)

  Mr. HOLLINGS. Mr. President, there is another wonderful subject we 
have debated ad nauseam, except with respect abortion. This is one you 
can really do something about if you really want to limit spending in 
campaigns as one cancer to public service. Ask the 12 Senators now 
retiring. They would agree in a sentence, Mr. President, that the one 
cancer to public service is money, and if you want to control the 
money, then let us get back to the 1974 act as intended.
  There never was any dispute at that particular time. I remember the 
history well. It so happened in the 1968 race of President Nixon that 
he had thereafter a Secretary of Commerce, Maurice Stans, who went 
around and allocated almost like the United Fund: Your fair share.
  He came to South Carolina to the textile industry and said, ``Your 
fair share for the Nixon campaign is $350,000,'' and so textile 
entities gathered up $35,000 apiece and sent it to Washington to 
qualify. Other individuals gave a half million dollars. A gentleman 
from Chicago gave $2 million.
  It was thereafter that Secretary of Treasury Connally came to 
President Nixon and said,

       Mr. President, there have been substantial contributions 
     made in your behalf and you have not had a chance to even 
     meet some of them, much less thank them personally. I would 
     like to give a barbecue on the ranch down in Texas where you 
     can meet and thank them.

  President Nixon thought that was a wonderful idea, and on that 
particular weekend, as they turned into the Connally ranch, there was a 
Brinks truck with that prankster Dick Tuck from the Kennedy campaign. 
They had that all embellished in the news and newspapers and otherwise, 
and everybody in Washington said, ``Heavens above, the Government is up 
for sale. We have to do something about it.''
  So in good spirit, both Republicans and Democrats joined hands into 
the Federal Elections Campaign Practices Act of 1974. At that 
particular time, we said, ``Look, every dollar in and every dollar out 
is recorded. You cannot give more than $1,000. You cannot, as a PAC, 
give more than $5,000. You cannot take cash.'' And, for voters in a 
particular State like Tennessee and South Carolina, we were limited per 
registered voters. In South Carolina, I remember we were limited to 
around $600,000. The last race I ran for reelection, in 1992, was $3.5 
million. It goes up, up, and away.
  Right now, every Senator every week has to collect at least $13,000. 
If you have not collected your $13,000 for your campaign 6 years out, 
you are behind the curve. You are behind the curve. That statement 
ought to embarrass all in America.
  We have had for 20 years, like a dog chasing its tail around this 
place, every kind of fanciful idea about how to give public moneys, 
most of it coming from Common Cause who will not listen. They have a 
PAC. Most PAC's give money. Common Cause gives you a fit. They have no 
idea of giving up their particular power, and so they will not go along 
with limiting the actual expenditures. Oh, we had the opportunity back 
in 1988. A majority of Senators voted for that one-line constitutional 
amendment: ``Congress is hereby empowered to regulate or control 
expenditures in Federal elections.''
  With that one line, we can get back to the original intent of 1974 
and actually limit spending. That was passed by an overwhelming 
bipartisan vote, and 

[[Page S18330]]
everyone realizes the then distinguished Senator from New York, Senator 
Jim Buckley, thought otherwise. He sued the Senate and Secretary Valeo.
  Under the Buckley versus Valeo decision, anyone of good mind and 
spirit would say this is the most flawed decision ever raised. Why do I 
say that? The Buckley versus Valeo decision of the U.S. Supreme Court 
equated money with speech.
  If you thought you had the freedom of speech, you would certainly 
have the freedom of money. And you are exactly right, if you are rich, 
you have that freedom. But if you are poor, you do not have it, because 
they immediately went on with the limitations.
  More particularly, Mr. President, you can take away your opponent's 
speech if you are affluent and the opponent is not. Specifically, if 
your opponent has $50,000 and you have $1 million, you wait until 
October 10 when people finally get their minds and attention on 
campaigns, getting ready for the election, then you fill up the 
airwaves, both radio and TV, the billboards, the yard signs, the 
newspaper advertising. And by November 1, a week ahead of the election, 
your family will ask, ``What is the matter, aren't you interested? You 
are not even answering.''
  You do not have the money to answer. You can take away the speech. It 
is the worst decision that you can possibly think of, particularly in 
light of the Constitution itself.
  If you read article I, section 4 of the Constitution--and I will read 
just exactly this:

       The Times, Places and Manner of holding Elections for 
     Senators and Representatives, shall be prescribed in each 
     State by the Legislature thereof; but the Congress may at any 
     time by Law make or alter such Regulations, except as to the 
     Places of choosing Senators.

  So, if we have the power at any time by law to alter the manner, it 
appears to this particular Senator we certainly can take the most 
grievous practice we have in this land of money in politics and put a 
control on it. We control the time, the place, the components of a 
candidacy and otherwise, and you can go on down the list.
  Mr. President, I rise today to address a problem with which we are 
all too familiar--the ever increasing cost of campaign spending. The 
need for limits on campaign expenditures is more urgent than ever, with 
the total cost of congressional campaigns skyrocketing from $446 
million in 1990 to well over $590 million in 1994. For nearly a quarter 
of a century, Congress has tried to tackle runaway campaign spending; 
again and again, Congress has failed.
  Let us resolve not to repeat the mistakes of past campaign finance 
reform efforts, which have bogged down in partisanship as Democrats and 
Republicans each tried to gore the other's sacred cows. During the 103d 
Congress there was a sign that we could move beyond this partisan 
bickering, when the Senate in a bipartisan fashion expressed its 
support for a limit on campaign expenditures. In May 1993, a nonbinding 
sense-of-the-Senate resolution was agreed to which advocated the 
adoption of a constitutional amendment empowering Congress and the 
States to limit campaign expenditures. During the 104th Congress, let's 
take the next step and adopt such a constitutional amendment--a simple, 
straightforward, nonpartisan solution.
  As Prof. Gerald G. Ashdown has written in the New England Law Review, 
amending the Constitution to allow Congress to regulate campaign 
expenditures is ``the most theoretically attractive of the approaches-
to-reform since, from a broad free speech perspective, the decision in 
Buckley is misguided and has worsened the campaign finance 
atmosphere.'' Adds Professor Ashdown: ``If Congress could 
constitutionally limit the campaign expenditures of individuals, 
candidates, and committees, along with contributions, most of the 
troubles * * * would be eliminated.''
  Right to the point, in its landmark 1976 ruling in Buckley versus 
Valeo, the Supreme Court mistakenly equated a candidate's right to 
spend unlimited sums of money with his right to free speech. In the 
face of spirited dissents, the Court drew a bizarre distinction between 
campaign contributions on the grounds that ``* * * the governmental 
interest in preventing corruption and the appearance of corruption 
outweighs considerations of free speech.''
  I have never been able to fathom why that same test--the governmental 
interest in preventing corruption and the appearance of corruption--
does not overwhelmingly justify limits on campaign spending. However, 
it seems to me that the Court committed a far graver error by striking 
down spending limits as a threat to free speech. The fact is, spending 
limits in Federal campaigns would act to restore the free speech that 
has been eroded by the Buckley decision.
  After all, as a practical reality, what Buckley says is: Yes, if you 
have personal wealth, then you have access to television, you have 
freedom of speech. But if you do not have personal wealth, then you are 
denied access to television. Instead of freedom of speech, you have 
only the freedom to shut up.
  So let us be done with this phony charge that spending limits are 
somehow an attack on freedom of speech. As Justice Byron White points 
out, clear as a bell, in his dissent, both contribution limits and 
spending limits are neutral as to the content of speech and are not 
motivated by fear of the consequences of the political speech in 
general.
  Mr. President, every Senator realizes that television advertising is 
the name of the game in modern American politics. In warfare, if you 
control the air, you control the battlefield. In politics, if you 
control the airwaves, you control the tenor and focus of a campaign.
  Probably 80 percent of campaign communications take place through the 
medium of television. And most of that TV airtime comes at a dear 
price. In South Carolina, you're talking between $1,000 and $2,000 for 
30 seconds of primetime advertising. In New York City, it's anywhere 
from $30,000 to $40,000 for the same 30 seconds.
  The hard fact of life for a candidate is that if you're not on TV, 
you're not truly in the race. Wealthy challengers as well as incumbents 
flushed with money go directly to the TV studio. Those without personal 
wealth are sidetracked to the time-consuming pursuit of cash.
  The Buckley decision created a double bind. It upheld restrictions on 
campaign contributions, but struck down restrictions on how much 
candidates with deep pockets can spend. The Court ignored the practical 
reality that if my opponent has only $50,000 to spend in a race and I 
have $1 million, then I can effectively deprive him of his speech. By 
failing to respond to my advertising, my cash-poor opponent will appear 
unwilling to speak up in his own defense.
  Justice Thurgood Marshall zeroed in on this disparity in his dissent 
to Buckley. By striking down the limit on what a candidate can spend, 
Justice Marshall said, ``It would appear to follow that the candidate 
with a substantial personal fortune at his disposal is off to a 
significant head start.''
  Indeed, Justice Marshall went further: He argued that by upholding 
the limitations on contributions but striking down limits on overall 
spending, the Court put an additional premium on a candidate's personal 
wealth.
  Justice Marshall was dead right. Our urgent task is to right the 
injustice of Buckley versus Valeo by empowering Congress to place caps 
on Federal campaign spending. We are all painfully aware of the 
uncontrolled escalation of campaign spending. The average cost of a 
winning Senate race was $1.2 million in 1980, rising to $2.1 million in 
1984, and skyrocketing to $3.1 million in 1986, $3.7 million in 1988, 
and up to $4.1 million this past year. To raise that kind of money, the 
average Senator must raise over $13,200 a week, every week of his or 
her 6-year term. Overall spending in congressional races increased from 
$403 million in 1990 to more than $590 million in 1994--almost a 50-
percent increase in 4 short years.
  This obsession with money distracts us from the people's business. At 
worst, it corrupts and degrades the entire political process. 
Fundraisers used to be arranged so they didn't conflict with the Senate 
schedule; nowadays, the Senate schedule is regularly shifted to 
accommodate fundraisers.
  I have run for statewide office 16 times in South Carolina. You 
establish a certain campaign routine, say, shaking hands at a mill 
shift in Greer, visiting a big country store outside of Belton, and so 
on. Over the years, they look for you and expect you to come 

[[Page S18331]]
around. But in recent years, those mill visits and dropping by the 
country store have become a casualty of the system. There is very 
little time for them. We're out chasing dollars.
  During my 1986 reelection campaign, I found myself raising money to 
get on TV to raise money to get on TV to raise money to get on TV. It's 
a vicious cycle.
  After the election, I held a series of town meetings across the 
State. Friends asked, ``Why are you doing these town meetings: You just 
got elected. You've got 6 years.'' To which I answered, ``I'm doing it 
because it's my first chance to really get out and meet with the people 
who elected me. I didn't get much of a chance during the campaign. I 
was too busy chasing bucks.'' I had a similar experience in 1992.
  I remember Senator Richard Russell saying: ``They give you a 6-year 
term in this U.S. Senate: 2 years to be a statesman, the next 2 years 
to be a politician, and the last 2 years to be a demagog.'' 
Regrettably, we are no longer afforded even 2 years as statesmen. We 
proceed straight to politics and demagoguery right after the election 
because of the imperatives of raising money.
  My proposed constitutional amendment would change all this. It would 
empower Congress to impose reasonable spending limits on Federal 
campaigns. For instance, we could impose a limit of, say, $800,000 per 
Senate candidate in a small State like South Carolina--a far cry from 
the millions spent by my opponent and me in 1992. And bear in mind that 
direct expenditures account for only a portion of total spending. For 
instance, my 1992 opponent's direct expenditures were supplemented by 
hundreds of thousands of dollars in expenditures by independent 
organizations and by the State and local Republican Party. When you 
total up spending from all sources, my challenger and I spent roughly 
the same amount in 1992.
  And incidentally, Mr. President, let's be done with the canard that 
spending limits would be a boon to incumbents, who supposedly already 
have name recognition and standing with the public and therefore begin 
with a built-in advantage over challengers. Nonsense. I hardly need to 
remind my Senate colleagues of the high rate of mortality in upper 
Chamber elections. And as to the alleged invulnerability of incumbents 
in the House, I would simply note that more than 50 percent of the 
House membership has been replaced since the 1990 elections.
  I can tell you from experience that any advantages of incumbency are 
more than counterbalanced by the obvious disadvantages of incumbency, 
specifically the disadvantage of defending hundreds of controversial 
votes in Congress.
  I also agree with University of Virginia political scientist Larry 
Sabato, who has suggested a doctrine of sufficiency with regard to 
campaign spending. Professor Sabato puts it this way: ``While 
challengers tend to be underfunded, they can compete effectively if 
they are capable and have sufficient money to present themselves and 
their messages.''
  Moreover, Mr. President, I submit that once we have overall spending 
limits, it will matter little whether a candidate gets money from 
industry groups, or from PAC's, or from individuals. It is still a 
reasonable--``sufficient,'' to use Professor Sabato's term--amount any 
way you cut it. Spending will be under control, and we will be able to 
account for every dollar going out.
  On the issue of PAC's, Mr. President, let me say that I have never 
believed that PAC's per se are an evil in the current system. On the 
contrary, PAC's are a very healthy instrumentality of politics. PAC's 
have brought people into the political process: nurses, educators, 
small business people, senior citizens, unionists, you name it. They 
permit people of modest means and limited individual influence to band 
together with others of mutual interest so their message is heard and 
known.
  For years we have encouraged these people to get involved, to 
participate. Yet now that they are participating, we turn around and 
say, ``Oh, no, your influence is corrupting, your money is tainted.'' 
This is wrong. The evil to be corrected is not the abundance of 
participation but the superabundance of money. The culprit is runaway 
campaign spending.
  To a distressing degree, elections are determined not in the 
political marketplace but in the financial marketplace. Our elections 
are supposed to be contests of ideas, but too often they degenerate 
into megadollar derbies, paper chases through the board rooms of 
corporations and special interests.
  Mr. President, I repeat, campaign spending must be brought under 
control. The constitutional amendment I have proposed would permit 
Congress to impose fair, responsible, workable limits on Federal 
campaign expenditures.
  Such a reform would have four important impacts. First, it would end 
the mindless pursuits of ever-fatter campaign war chests. Second, it 
would free candidates from their current obsession with fundraising and 
allow them to focus more on issues and ideas; once elected to office, 
we wouldn't have to spend 20 percent of our time raising money to keep 
our seats. Third, it would curb the influence of special interests. And 
fourth, it would create a more level playing field for our Federal 
campaigns--a competitive environment where personal wealth does not 
give candidates an insurmountable advantage.
  Finally, Mr. President, a word about the advantages of the amend-the-
Constitution approach that I propose. Recent history amply demonstrates 
the practicality and viability of this constitutional route. Certainly, 
it is not coincidence that all five of the most recent amendments to 
the Constitution have dealt with Federal election issues. In elections, 
the process drives and shapes the end result. Election laws can skew 
election results, whether you're talking about a poll tax depriving 
minorities of their right to vote, or the absence of campaign spending 
limits giving an unfair advantage to wealthy candidates. These are 
profound issues which go to the heart of our democracy, and it is 
entirely appropriate that they be addressed through a constitutional 
amendment.
  And let's not be distracted by the argument that the amend-the-
Constitution approach will take too long. Take too long? We have been 
dithering on this campaign finance issue since the early 1970's, and we 
haven't advanced the ball a single yard. It has been a quarter of a 
century, and no legislative solution has done the job.
  The last five constitutional amendments took an average of 17 months 
to be adopted. There is no reason why we cannot pass this joint 
resolution, submit it to the States for a vote, and ratify the 
amendment in time for it to govern the 1996 election. Indeed, the 
amend-the-Constitution approach could prove more expeditious than the 
alternative legislative approach. Bear in mind that the various public 
financing bills that have been proposed would all be vulnerable to a 
Presidential veto. In contrast, this joint resolution, once passed by 
the Congress, goes directly to the States for ratification. Once 
ratified, it becomes the law of the land, and it is not subject to veto 
or Supreme Court challenge.
  And, by the way, I reject the argument that if we were to pass and 
ratify this amendment, Democrats and Republicans would be unable to 
hammer out a mutually acceptable formula of campaign expenditure 
limits. A Democratic Congress and Republican President did exactly that 
in 1974, and we can certainly do it again.
  Mr. President, this joint resolution will address the campaign 
finance mess directly, decisively, and with finality. The Supreme Court 
has chosen to ignore the overwhelming importance of media advertising 
in today's campaigns. In the Buckley decision, it prescribed a bogus 
if-you-have-the-money-you-can-talk version of free speech. In its 
place, I urge passage of this joint resolution, the freedom of speech 
in political campaigns amendment. Let us ensure equal freedom of 
expression for all who seek Federal office.
  Mr. President, we have the Committee on the Constitutional System. I 
will read the first sentence by the distinguished chairman at the time, 
Lloyd N. Cutler:

       Along with Senator Nancy Kassebaum of Kansas and Mr. 
     Douglas Dillon, I am a cochairman of the Committee on the 
     Constitutional System, a group of several hundred present and 
     former legislators, executive branch officials, political 
     party officials, professors, and civic leaders, who are 
     interested 

[[Page S18332]]
     in analyzing and correcting some of the weaknesses that have developed 
     in our political system.

  I will skip over some just to read the conclusion on the third page.
  I ask unanimous consent that the entire testimony of Lloyd Cutler be 
printed in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Statement of Lloyd N. Cutler

       My name is Lloyd N. Cutler. Along with Senator Nancy 
     Kassebaum of Kansas and Mr. Douglas Dillon, I am a Co-
     Chairman of the Committee on the Constitutional System, a 
     group of several hundred present and former legislators, 
     executive branch officials, political party officials, 
     professors and civic leaders who are interested in analyzing 
     and correcting some of the weaknesses that have developed in 
     our political system.
       On of the most glaring weaknesses, of course, is the 
     rapidly escalating cost of political campaigns, and the 
     growing dependence of incumbents and candidates on money from 
     interest groups who except the receipent to vote in favor of 
     their particular interests. Incumbents and candidates must 
     devote large portions of their time to begging for money; 
     they are often tempted to vote the conflicting interests of 
     their contributors and to create a hodgepodge of conflicting 
     and indefensible policies; and in turn public frustration 
     with these policies creates cynicism and contempt for the 
     entire political process.
       A serious attempt to deal with the campaign financing 
     problem was made in the Federal Election Campaign Act of 1974 
     and the 1976 amendments, which set maximum limits on the 
     amounts of individual contributions and on the aggregate 
     expenditures of candidates and so-called independent 
     committees supporting such candidates. The constitutionally 
     of these provisions was challenged in the famous case of 
     Buckley v. Valeo, 424 U.S. 1, in which I had the honor of 
     sharing the argument in support of the statute with Professor 
     Archibald Cox. While the Supreme Court sustained the 
     constitutionality of the limits on contributions, it struck 
     down the provision limiting expenditures for candidates and 
     independent committees supporting such candidates. It found 
     an inseparable connection between an expenditure limit and 
     the extent of a candidate's or committee's political speech, 
     which did not exist in the case of a limit on the size of 
     each contribution by a non-speaker unaccompanied by any limit 
     on the aggregate amount a candidate could raise. It also 
     found little if any proven connection between corruption and 
     the size of a candidate's aggregate expenditures, as 
     distinguished from the size of individual contributions to a 
     candidate.
       The Court did, however, approve the Presidential Campaign 
     Financing Fund created by the 1976 amendments, including the 
     condition it imposed barring any presidential nominee who 
     accepted the public funds from spending more than a specified 
     limit.
       However, it remains unconstitutional for Congress to place 
     any limits on expenditures by independent committees on 
     behalf of a candidate.
       In recent presidential elections these independent 
     expenditures on behalf of one candidate exceeded the amount 
     of federal funding he accepted.
       Moreover, so long as the Congress remains deadlocked on 
     proposed legislation for the public financing of 
     Congressional campaigns, it is not possible to use the public 
     financing device as a means of limiting Congressional 
     campaign expenditures.
       Accordingly, the Committee on the Constitutional System has 
     come to the conclusion that the only effective way to limit 
     the explosive growth of campaign financing is to adopt a 
     constitutional amendment. The amendment would be a very 
     simple one consisting of only 46 words. It would state merely 
     that ``Congress shall have power to set reasonable limits on 
     campaign expenditures by or in support of any candidate in a 
     primary or general election for federal office. The States 
     shall have the same power with respect to campaign 
     expenditures in elections for state and local offices''.
       Our proposed amendment would enable Congress to set limits 
     not only on direct expenditures by candidates and their own 
     committees, but also on expenditures by so-called independent 
     committees in support of such a candidate. The details of the 
     actual limits would be contained in future legislation and 
     could be changed from time to time as Congress in its 
     judgment sees fit.
       It may of course be argued that the proposed amendment, by 
     authorizing reasonable limits on expenditures, would 
     necessarily set limits on the quantity of speech on behalf of 
     a candidate and that any limits, no matter how ample, is 
     undesirable. But in our view the evidence is overwhelming by 
     now that unlimited campaign expenditures will eventually grow 
     to the point where they consume so much of our political 
     energies and so fracture our political consensus that they 
     will make the political process incapable of governing 
     effectively. Even the Congress has found that unlimited 
     speech can destroy the power to govern; that is why the House 
     of Representatives has imposed time limits on Members' 
     speeches for decades and why the Senate has adopted a rule 
     permitting 60 senators to end a filibuster. One might fairly 
     paraphrase Lord Acton's famous aphorism about power by 
     saying, ``All political money corrupts; unlimited political 
     money corrupts absolutely.''
       Finally, Mr. Chairman, I would not be discouraged from 
     taking the amendment route by any feeling that constitutional 
     amendments take too long to get ratified. The fact is that 
     the great majority of amendments submitted by Congress to the 
     states during the last 50 years have been ratified within 
     twenty months after they were submitted. All polls show that 
     the public strongly supports limits on campaign expenditures. 
     The principal delay will be in getting the amendment through 
     Congress. Since that is going to be a difficult task, we 
     ought to start immediately. Unlimited campaign expenditures 
     and the political diseases they cause are going to increase 
     at least as rapidly as new cases of AIDS, and it is high time 
     to start getting serious about the problem.
       Mr. Chairman, on three past occasions we the people have 
     amended the Constitution to correct weaknesses in that 
     rightly revered document as interpreted by the Supreme Court. 
     On at least two of those occasions--the Dred Scott decision 
     and the decision striking down federal income taxes, history 
     has subsequently confirmed that the amendments were essential 
     to our development as a healthy, just and powerful society. A 
     third such challenge is now before us. The time has come to 
     meet it.
       For a fuller discussion of the case for a constitutional 
     amendment, I am attaching an article written shortly before 
     his death by Congressman Jonathan Bingham, my college and law 
     school classmate and, in my view, one of the finest public 
     servants of our times.
  Mr. HOLLINGS. Mr. President, I read this sentence on the third page:

       Accordingly, the Committee on the Constitutional System has 
     come to the conclusion that the only effective way to limit 
     the explosive growth of campaign financing is to adopt a 
     constitutional amendment.

  Mr. President, I take the position--for those who are interested in 
the Bill of Rights and the first amendment and the freedom of speech--
that the Supreme Court erroneously amended the Constitution, or 
deteriorated the value and worth of the freedom of speech under the 
Constitution and the Bill of Rights.
  So what we are trying to do is not treat lightly, by any manner or 
means, the Constitution or amendments. Others will get up and say we 
have had 3,564 amendments offered and here comes another. Not at all. 
We have tried in Congress after Congress after Congress, for over 20-
some years now, to correct this particular flawed decision of Buckley 
versus Valeo, and get back to controlling spending in politics. The one 
way to do it is take the amendment that I have, which I will send to 
the desk. This amendment would provide the authority for both the 
United States and the several States within their particular 
jurisdiction, because it was asked to be amended accordingly at the 
time we debated it last, on how the States also ought to have this 
particular authority.
  The last 10 amendments to the Constitution--their time for 
ratification has been 20 months. There is no doubt in this particular 
Senator's mind that this could easily be ratified next November 1996. 
Then the Congress could come back and they could get to this bundling 
problem, this third party problem, and they can get to all the little 
tricks in politics, national committees, individual committees, and 
everything else of that kind, and we can legislate the honest intent of 
a majority of Democrats and Republicans in a former session, getting 
back to what we intended in 1974. We said on the floor of this body 
that you cannot buy this election anymore. Instead, under Buckley 
versus Valeo, that is the only way.
  We have a candidate right now for President who has never run for 
anything, and he has one idea about the flat tax that will give himself 
a tax cut, and he is buying up $25 million of airwaves in the 
Republican primaries. That would ordinarily be an embarrassment. The 
fact that it is accepted has embarrassed this particular Senator.
  We have to get away from that kind of nonsense. Just because you are 
rich and you can buy up time and you have never even been in a 
campaign, and others have been in there 2, 3 years, you can get up 
there in 2 months and run No. 2--just by money? A flat tax is no unique 
idea. Come on. So that is what is occurring. We ought to all be 
embarrassed, and we ought to jump at the chance of correcting it.
  Mr. President, I ask unanimous consent that the pending amendment be 
temporarily laid aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HOLLINGS. Mr. President, I send the amendment to the desk.
  The PRESIDING OFFICER (Mr. Kyl). The clerk will report. 
  
[[Page S18333]]

  The bill clerk read as follows:

       The Senator from South Carolina [Mr. Hollings] proposes an 
     amendment numbered 3096.

  Mr. HOLLINGS. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       After the first article add the following:

                              ``Article --

       ``Section 1. Congress shall have power to set reasonable 
     limits on expenditures made in support of or in opposition to 
     the nomination or election of any person to Federal office.
       ``Section 2. Each State shall have power to set reasonable 
     limits on expenditures made in support of or in opposition to 
     the nomination or election of any person to State office.
       ``Section 3. Each local government of general jurisdiction 
     shall have power to set reasonable limits on expenditures 
     made in support of or in opposition to the nomination or 
     election of any person to office in that government. No State 
     shall have power to limit the power established by this 
     section.
       ``Section 4. Congress shall have power to implement and 
     enforce this article by appropriate legislation.''.

  Mr. HOLLINGS. Mr. President, I yield the floor.
  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
West Virginia is recognized.

                          ____________________