[Congressional Record Volume 146, Number 35 (Monday, March 27, 2000)]
[Senate]
[Pages S1706-S1737]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to consider S.J. Res. 14, which the clerk will report by title.
  The legislative clerk read as follows:

       A joint resolution (S.J. Res. 14) proposing an amendment to 
     the Constitution of the United States authorizing Congress to 
     prohibit the physical desecration of the flag of the United 
     States.

  The Senate proceeded to consider the joint resolution.
  Mr. GRAMS. Mr. President, the Constitution begins with the ringing 
words--``We the People''--for a reason. In our great nation, the people 
are empowered to decide the manner in which we are to be governed and 
the values we are to uphold. I join 80 percent of the American people 
in the belief the flag of the United States of America should be 
protected from physical desecration. And I am blessed to live in a 
nation where the will of the people can triumph over that of lawyers 
and judges.
  In light of the U.S. Supreme Court decisions Texas v. Johnson (1989) 
and United States v. Eichman (1990), which essentially abrogated flag 
desecration statutes passed by the federal government and 48 states, a 
constitutional amendment is clearly necessary to protect our flag. This 
would take the issue of flag protection out of the Courts and back to 
the legislatures where it belongs. As Chief Justice Rehnquist stated in 
his dissent, ``Surely one of the high purposes of a democratic society 
is to legislate against conduct that is regarded as evil and profoundly 
offensive to the majority of people--whether it be murder, 
embezzlement, pollution, or flagburning.''
  Mr. President, the fight to protect ``Old Glory'' is a fight to 
restore duty, honor, and love of country to their rightful place. As 
Justice Stevens noted, ``The flag uniquely symbolizes the ideas of 
liberty, equality, and tolerance.'' These are the values that form the 
bedrock of our nation. We are a nation comprised of individuals of 
varying races, creeds, and colors, with differing ideologies. We need 
to reinforce the values we hold in common in order for our nation to 
remain united, to remain strong.
  Sadly, patriotism is on the decline. That's dangerous in a democracy. 
Just ask the military recruiters who can't find enough willing young 
people to fill the ranks of our military during this strong economy. 
What happened to the pride in serving your country? Where are the 
Americans willing to answer the call?
  Protecting the flag reflects our desire to protect our nation from 
this erosion in patriotism. It signals that our government, as a 
reflection of the will of the people, believes all Americans should 
treat the flag with respect. The men and women of our armed forces who 
sacrificed for the flag should be shown they did not do so in vain. 
They fought, suffered, and died to preserve the very freedom and 
liberty which allow us to proclaim that desecrating the American flag 
goes too far and should be prohibited.
  To say that our flag is just a piece of cloth--a rag that can be 
defiled and trampled upon and even burnt into ashes--is to dishonor 
every soldier who ever fought to protect it. Every star, every stripe 
on our flag was bought through their sacrifice.
  The flag of the United States of America is a true, national 
treasure. Because of all that it symbolizes, we have always held our 
flag with the greatest esteem, with reverence. That is why we fly it so 
high above us. When the flag is aloft, it stands above political 
division and above partisanship.
  Under our flag, we are united.
  Most Americans cannot understand why anyone would burn a flag. Most 
Americans cannot understand why the Senate would not act decisively and 
overwhelmingly to pass an amendment affording our flag the protection 
it deserves.
  This simple piece of cloth is indeed worthy of Constitutional 
protection. I urge my colleagues to follow the will of ``We the 
People'' and accord the American flag the dignity it is due by 
supporting Senate Joint Resolution 14.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Kentucky, Mr. McConnell, is recognized to offer an amendment in the 
nature of a substitute.


                           Amendment No. 2889

   (Purpose: To provide for the protection of the flag of the United 
            States and free speech, and for other purposes)

  Mr. McCONNELL. Mr. President, I send an amendment to the desk 
pursuant to the order previously entered.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Kentucky [Mr. McConnell], for himself, Mr. 
     Bingaman, Mr. Bennett, Mr. Conrad, Mr. Dorgan, Mr. Dodd, Mr. 
     Torricelli, Mr. Byrd, and Mr. Lieberman, proposes an 
     amendment numbered 2889.

  Mr. McCONNELL. 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:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Flag Protection and Free 
     Speech Act of 1999''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the flag of the United States is a unique symbol of 
     national unity and represents the values of liberty, justice, 
     and equality that make this Nation an example of freedom 
     unmatched throughout the world;
       (2) the Bill of Rights is a guarantee of those freedoms and 
     should not be amended in a manner that could be interpreted 
     to restrict freedom, a course that is regularly resorted to 
     by authoritarian governments which fear freedom and not by 
     free and democratic nations;
       (3) abuse of the flag of the Untied States causes more than 
     pain and distress to the overwhelming majority of the 
     American people and may amount to fighting words or a direct 
     threat to the physical and emotional well-being of 
     individuals at whom the threat is targeted; and
       (4) destruction of the flag of the United States can be 
     intended to incite a violent response rather than make a 
     political statement and such conduct is outside the 
     protections afforded by the first amendment to the 
     Constitution.
       (b) Purpose.--The purpose of this Act is to provide the 
     maximum protection against the use of the flag of the United 
     States to promote violence while respecting the liberties 
     that it symbolizes.

     SEC. 3. PROTECTION OF THE FLAG OF THE UNITED STATES AGAINST 
                   USE FOR PROMOTING VIOLENCE.

       (a) In General.--Section 700 of title 18, United States 
     Code, is amended to read as follows:

     Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the United States

       ``(a) Definition of Flag of the United States.--In this 
     section, the term `flag of the United States' means any flag 
     of the United States, or any part thereof, made of any 
     substance, in any size, in a form that is

[[Page S1707]]

     commonly displayed as a flag and that would be taken to be a 
     flag by the reasonable observer.
       ``(b) Actions Promoting Violence.--Any person who destroys 
     or damages a flag of the United States with the primary 
     purpose and intent to incite or produce imminent violence or 
     a breach of the peace, and under circumstances in which the 
     person knows that it is reasonably likely to produce imminent 
     violence or a breach of the peace, shall be fined not more 
     than $100,000, imprisoned not more than 1 year, or both.
       ``(c) Damaging a Flag Belonging to the United States.--Any 
     person who steals or knowingly converts to his or her use, or 
     to the use of another, a flag of the United States belonging 
     to the United States, and who intentionally destroys or 
     damages that flag, shall be fined not more than $250,000, 
     imprisoned not more than 2 years, or both.
       ``(d) Damaging a Flag of Another on Federal Land.--Any 
     person who, within any lands reserved for the use of the 
     United States, or under the exclusive or concurrent 
     jurisdiction of the United States, steals or knowingly 
     converts to his or her use, or the use of another, a flag of 
     the United States belonging to another person, and who 
     intentionally destroys or damages that flag, shall be fined 
     not more than $250,000, imprisoned not more than 2 years, or 
     both.
       ``(e) Construction.--Nothing in this section shall be 
     construed to indicate an intent on the part of Congress to 
     deprive any State, territory, or possession of the Untied 
     States, or the Commonwealth of Puerto Rico of jurisdiction 
     over any offense over which it would have jurisdiction in the 
     absence of this section.''.
       (b) Clerical Amendment.--The analysis for chapter 33 of 
     title 18, United States Code, is amended by striking the item 
     relating to section 700 and inserting the following:

``700. Incitement; damage or destruction of property involving the flag 
              of the United States.''.

  The PRESIDING OFFICER. Under the previous order, there shall be 2 
hours for debate on the amendment equally divided, with an additional 
30 minutes under the control of the Senator from West Virginia, Mr. 
Byrd.
  Mr. McCONNELL. Mr. President, the amendment that I sent to the desk 
is on behalf of myself, Senator Bennett, Senator Conrad, Senator 
Dorgan, Senator Dodd, Senator Torricelli, Senator Bingaman, Senator 
Byrd, and Senator Lieberman.
  I am glad we are having this debate today. The American flag is our 
most precious national symbol, and we should be concerned about the 
desecration of that symbol.
  This debate is also about the Constitution which is our most revered 
national document. Both the flag and the Constitution represent the 
ideas, values, and traditions that define our Nation. Brave Americans 
have fought and given their lives defending the truths these both 
represent. We should be concerned with defending both of them.
  Today I am proud to offer, along with the colleagues I previously 
listed--Senator Bennett, Senator Conrad, Senator Dorgan, Senator Dodd, 
Senator Torricelli, Senator Bingaman, Senator Byrd, and Senator 
Lieberman--the Flag Protection Act as an amendment in the form of a 
substitute to the bill before us.
  This amendment would ensure that acts of deliberately confrontational 
flag-burning are punished with stiff fines and even jail time. My 
amendment will help prevent desecration of the flag, and at the same 
time, protect the Constitution.
  As all of us do, I revere the flag. Among my most prized possessions 
is the American flag which honored, as he was laid to rest, my father's 
service in World War II. That flag rests proudly on the marble mantle 
in my Senate office. Further, one of my first acts as chairman of the 
Rules Committee last year was to offer, along with the senior Senator 
from New Hampshire, Mr. Smith, an amendment to the Standing Rules of 
the Senate to provide that we begin each day's business in the Senate 
Chamber with the Pledge of Allegiance to the flag.
  I want to be perfectly clear, I have no sympathy for those who 
desecrate the flag. These malcontents are simply grabbing attention for 
themselves by inflaming the passions of patriotic Americans. There is 
no reason we should respect them or what they are saying.
  Speech that incites lawlessness or is intended to do so merits no 
first amendment protection, as the Supreme Court has made abundantly 
clear. From Chaplinsky's ``fighting words'' doctrine in 1942 to 
Brandenburg's ``incitement'' test in 1969 to Wisconsin v. Mitchell's 
``physical assault'' standard in 1993, the Supreme Court has never 
protected speech which causes or intends to cause physical harm to 
others.
  That is the basis for this legislation. My amendment outlaws three 
types of illegal flag desecration. First, anyone who destroys or 
damages a U.S. flag with a clear intent to incite imminent violence or 
a breach of the peace may be punished by a fine of up to $100,000, or 
up to 1 year in jail, or both.
  Second, anyone who steals a flag that belongs to the United States 
and destroys or damages that flag may be fined up to $250,000 or 
imprisoned up to 2 years, or both.
  And third, anyone who steals a flag from another and destroys or 
damages that flag on U.S. property may also be fined up to $250,000 or 
imprisoned up to 2 years, or both.
  Some of my colleagues will argue that we have been down the statutory 
road before and the Supreme Court has rejected that road. However, 
those arguments are not valid with respect to this amendment I am now 
discussing. The Senate's previous statutory effort to address this 
issue wasn't tied to the explicit teachings and principles of the U.S. 
Supreme Court.
  Put simply, my statutory approach for addressing flag desecration is 
completely compatible with the first amendment and in no way conflicts 
with the Supreme Court's relevant rulings in the two leading cases: 
Texas v. Johnson, (1989) and U.S. v. Eichman, (1990).
  In the Eichman case, the court clearly left the door open for 
outlawing flag burning that incites lawlessness.
  As is made clear by these distinctions in cases and the direction 
pondered by the Supreme Court in Eichman, my amendment will pass 
constitutional muster. But you don't have to take my word on it. The 
Congressional Research Service has offered legal opinions concluding 
that this initiative will withstand constitutional scrutiny. CRS said:

       The judicial precedents establish that the [Flag Protection 
     Act], if enacted, while not reversing Johnson and Eichman, 
     should survive constitutional attack on First Amendment 
     grounds.

  In addition, Bruce Fein, a former official in the Reagan 
administration and respected constitutional scholar, concurs. He said:

       [The Flag Protection Act] falls well within the protective 
     constitutional umbrella of Brandenburg and Chaplinsky . . . 
     [and it] also avoids content-based discrimination which is 
     generally frowned on by the First Amendment.

  Several other constitutional specialists also agree that this 
initiative respects the first amendment and will withstand 
constitutional challenge. A memo by Robert Peck, formerly of the ACLU, 
and Professors Robert O'Neil and Erwin Chemerinsky concludes that this 
legislation ``conforms to constitutional requirements in both its 
purpose and its provisions.''
  And, these same three respected men have looked at the few State 
court cases which have been decided since we had this debate a few 
years ago and have reiterated their original finding of 
constitutionality.
  As I am sure you will hear later today, opponents of my amendment 
have asked a number of constitutional scholars to find constitutional 
concerns with my bill. One of the most revealing responses was from 
Professor William Van Alstyne, a professor at Duke Law School and a 
dean of constitutional law. Professor Van Alstyne wrote that although 
he is not in favor of any law or constitutional amendment punishing 
those who abuse the flag, he did not find any constitutional infirmity 
with my legislation.
  In closing, I would like to share some thoughts recently conveyed by 
General Colin Powell, a great American. In a recent letter he so 
eloquently expressed his sentiments which explain my own. He wrote:

       I understand how strongly so many . . . veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment in state legislatures for such an [constitutional] 
     amendment. I feel the same sense of outrage. But I step back 
     from amending the Constitution to relieve that outrage. The 
     First Amendment exists to insure that freedom of speech and 
     expression applies not just to that with which we agree or 
     disagree, but also that which we find outrageous.
       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will still be flying proudly long 
     after they have slunk away.

  There is nothing wrong with the Bill of Rights or the first 
amendment. It

[[Page S1708]]

has stood the test of time for 200 years. It would be unfortunate if we 
began tampering with the important and fundamental protections of the 
first amendment because of a tiny handful of malcontents. This is 
especially true when we have this viable, constitutional statutory 
alternative, which I have just offered, for dealing with those 
malcontents who would desecrate one of our Nation's most cherished 
symbols.
  Mr. President, I ask unanimous consent that the full text of the 
various memos and letters I have referred to be printed in the Record. 
I note that some of the memos refer to S. 982 in the 105th Congress and 
some refer to S. 1335 in the 104th Congress. These bills were 
introduced in different sessions of Congress but they are, in fact, the 
same amendment.
  I would also like to refer Senators and other interested parties to 
the Congressional Record for April 30, 1999, pages 54488-54489 and the 
following supporting memos and letters: statement of Bruce Fein, Esq. 
and statements of Robert S. Peck, Esq. et al.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Fairfax Station, VA,

                                                     May 11, 1999.
     Hon. Mitch McConnell,
     U.S. Senate, Washington, DC.
       Dear Senator McConnell: Recently, Senator Hatch sent an 
     inquiry to a number of constitutional scholars raising 
     questions about the constitutionality of your bill, S. 931, 
     the Flag Protection Act of 1999. One of those scholars, 
     Professor William Van Alstyne, one of the deans of First 
     Amendment law, wrote back that he found no constitutional 
     infirmity in the legislation. In reaching that sound 
     conclusion, Professor Van Alstyne allied himself with the 
     Congressional Research Service and with Professor Robert 
     O'Neil of the University of Virginia, who also serves as the 
     Founding Director of an important First Amendment study 
     center, the Thomas Jefferson Center for Free Expression, 
     Professor Erwin Chemerinsky of the University of Southern 
     California, former Associate Attorney General Bruce Fein and 
     myself, a constitutional lawyer and law professor.
       One letter received by Senator Hatch did raise several 
     questions about the legislation. It was jointly signed by 
     Professors Richard Parker and Laurence Tribe of Harvard. As 
     you know, Professor Parker is an advisor to the Citizens Flag 
     Alliance (CFA) and a supporter of the flag desecration 
     constitutional amendment that is the CFA's entire reason for 
     existence. In his advisory role, he has repeatedly staked out 
     a position, inconsistent with the explicit teachings of the 
     U.S. Supreme Court, that nothing short of a constitutional 
     amendment is valid or appropriate. Professor Tribe, however, 
     is an opponent of the constitutional amendment. His position, 
     as articulated in this May 5 joint letter, is similarly at 
     odds with existing precedent, as well as with testimony that 
     Professor Tribe himself has previously given in Congress. See 
     Hate Crimes Sentencing Enhancement Act of 1992: Hearings on 
     H.R. 4797 Before the Subcomm. on Crime and Criminal Justice 
     of the House Comm. on the Judiciary, 102d Cong., 2d Sess. 7 
     et seq. (1992) (statement and testimony of Professor Laurence 
     Tribe). As this letter details, the concerns raised by 
     Professors Parker and Tribe should not give any pause to you 
     or to the bill's other supporters; S. 931 remains compatible 
     with the First Amendment and does not conflict with the U.S. 
     Supreme Court's relevant rulings.
       I will answer the issues raised by Professors Parker and 
     Tribe one at a time.
       Lack of Congressional Authority--Relying on the Supreme 
     Court's decision in Lopez, which struck down the Gun-Free 
     School Zones Act of 1990, Professors Parker and Tribe assert 
     that Congress ``probably lacks affirmative authority'' to 
     pass laws prohibiting use of the flag to incite violence. Not 
     only is their statement couched in uncertainty 
     (``probably''), but seems to suggest that Congress could 
     neither pass a law prohibiting violent crimes, as it has done 
     in a number of instances already, nor any laws relating to 
     the flag. If the latter were true, then Congress could not 
     have passed the statute that designates the familiar 
     scheme of stars and stripes as the flag of the United 
     States. If the federal government has no legal interest in 
     the flag that symbolizes our Nation, then it is difficult 
     to imagine what legal interest it has at all.
       In discussing this issue, it is important to note that the 
     professors' reliance on Lopez is misplaced. Lopez was a 
     Commerce Clause decision. In that case, the Supreme Court 
     held that the problem of guns in schools did not have a 
     sufficient nexus to interstate commerce to allow Congress to 
     invoke federal authority; the guns-and-schools issue, it said 
     remains a state matter, as it has traditionally. Unlike the 
     law struck down in Lopez, your bill does not rest on the 
     commerce power, but instead relies on the unique nature of 
     the flag and the inherent federal interest in it. Only the 
     federal government has the authority to define what 
     constitutes a flag of the United States. And it retains the 
     primary interest in defining what constitutes proper use of 
     the flag. No one could plausibly contend that the asserted 
     interests more properly and traditionally reside within state 
     authority.
       Moreover, nothing in the Supreme Court's Flag Burning Cases 
     suggest that the federal government may not assert such an 
     interest in the flag. In fact, the Court implicitly 
     recognized what it thought unnecessary to articulate: that 
     government has a real interest in the uses to which the flag 
     might be put. It indicated, in words that have real meaning 
     for the proposed statute, that the First Amendment would not 
     be violated by a law that prosecuted a person who drags ``a 
     flag through the mud, knowing that this conduct is likely to 
     offend others, and yet have no thought of expressing any 
     idea.'' Texas v. Johnson, 491 U.S. 397, 403 n.3 (1989). Note 
     that this articulation of a constitutional approach to 
     regulating flag-related conduct is extremely similar to S. 
     931's treatment of flag-related conduct that is intended and 
     likely to result in imminent violence.
       The Johnson Court went on to say that it would not have 
     struck down the Texas flag desecration law if the government 
     had been able to assert truthfully that it was motivated in 
     its prosecution by a realistic concern for preventing 
     violence. Id. at 399. This statement, by itself, should be 
     viewed as definitive authority in favor of the 
     constitutionality of S. 931. As Ohio's Supreme Court held, 
     relying on Johnson, punishing use of the flag to incite 
     violence poses no constitutional problem. Ohio v. Lessin, 620 
     N.E.2d 72 (Ohio 1993), cert. denied, 510 U.S. 11194 (1994). 
     The U.S. Supreme Court was given an opportunity to correct 
     the Ohio decision, if correction was needed, but chose not to 
     take the case. Maryland has also enacted a flag statute aimed 
     at dealing with violence without any adverse court ruling as 
     to its constitutionality. Md. Ann. Code art. 27, Sec. 83 
     (1990). If states can enact such a law, there is certainly no 
     bar on congressional enactment, where the federal authorizing 
     interest is significantly greater and such a statute would be 
     a valid exercise of the police power.
       Section 3(b).--Professors Parker and Tribe also claim that 
     the bill's punishment for use of the flag to incite violence 
     draws an impermissible content-based line because it 
     effectively suppresses, through threat of punishment, those 
     forms of expressive use of the flag that are intended and 
     likely to incite violence. This is a remarkable assertion 
     because, if correct it would render all incitement and 
     conspiracy statutes that rely on criminal communications 
     invalid. Yet, as demonstrated by the Johnson Court's 
     language quoted above, the Supreme Court anticipated a 
     statute along the lines of S. 931 and found it valid.
       Contrary to the implication made by the professors that 
     line-drawing by Congress is unconstitutional, all laws draw 
     lines. In the First Amendment area, the Supreme Court has 
     both recognized this reality and mandated that such lines be 
     drawn with utmost precision so that it is limited to those 
     evils that legislation may properly address. See, e.g., NAACP 
     v. Button, 371 U.S. 415, 433 (1963). In fact, the courts have 
     long experience upholding laws that punish certain types of 
     conduct that contains aspects of expression. In Cox v. 
     Louisiana, 379 U.S. 559 (1965), for example, the Supreme 
     Court upheld a statute that criminalized picketing or 
     parading near a state courthouse ``with the intent of 
     interfering with, obstructing, or impeding the administration 
     of justice.'' Picketing and parading are indisputably forms 
     of expressive conduct that are accorded full First Amendment 
     protection, yet could be made criminal when the governmental 
     interest is overriding, as it is when that interest is the 
     prevention of violence as it is in S. 931. Even earlier, the 
     Court had upheld a prohibition on picketing intended to 
     further unlawful objectives. International Brotherhood of 
     Electrical Workers v. NLRB, 341 U.S. 674 (1951). S. 931 is 
     indistinguishable from the laws upheld by these quite solid 
     precedents.
       Similarly, anti-discrimination laws are not invalid just 
     because the discriminating party wishes to express racial or 
     sexual opinions. See Hishon v. King & Spaulding, 467 U.S. 69, 
     78 (1984), See also United States v. J.H.H., 22 F.3d 821, 826 
     (8th Cir. 1994) (upholding civil rights laws prohibiting 
     conduct intended to deprive victims of their legal rights).
       By relying on R.A.V. v. St. Paul, 505 U.S. 377 (1992), for 
     a broad proposition that government has no power to 
     criminalize conduct that contains elements of expression, the 
     two professors make the same error that was made by the 
     Wisconsin Supreme Court and corrected by the U.S. Supreme 
     Court. In striking down a hate-crime sentencing enhancement 
     law on First Amendment grounds, the Wisconsin court asserted 
     that the U.S. Supreme Court's R.A.V. decision preordained the 
     result. The U.S. Supreme Court then unanimously reversed the 
     Wisconsin court. It recognized, as Professors Parker and 
     Tribe assert about S. 931, that the ``Wisconsin statute 
     singles out for enhancement bias-inspired conduct,'' but 
     found that this singling out posed no First Amendment issue 
     because such ``conduct is thought to inflict greater 
     individual and societal harm, Wisconsin v. Mitchell, 508 U.S. 
     476 487-88 (1993). Among those legitimate concerns for harm 
     that validated the law which the Supreme Court enumerated 
     were: a concern for inspiring retaliatory crimes, the 
     distinct emotional harms visited upon victims, and the 
     likelihood that community unrest would be engendered. Id. at 
     488. The Court further

[[Page S1709]]

     found that the ``desire to redress these perceived harms 
     provides an adequate explanation for its penalty-enhancement 
     provision over and above mere disagreement with offenders' 
     beliefs or biases.'' Id.
       S. 931 similarly focuses on conduct (incitement to violence 
     through the instrumentality of a flag) with substantial 
     potential harms that include the ones listed by the Mitchell 
     Court. In his congressional testimony on hate crimes 
     sentencing enhancement, Professor Tribe saw no constitutional 
     dilemma with a law that punished those who target their 
     victims by race or gender with longer sentences even if the 
     criminal act might be interpreted as an expression of racial 
     hatred. Hate Crimes Sentencing Enhancement Act of 1992. 
     Hearings on H.R. 4797 Before the Subcomm. on Crime and 
     Criminal Justice of the House Comm. on the Judiciary, 102d 
     Cong., 2d Sess. 7-30 (1992) (statement and testimony of 
     Professor Laurence Tribe). In taking his position in defense 
     of the use of bias motivation as a sentencing factor and 
     calling it properly narrow even though it singled out a 
     particular form of opinion, he anticipated the Mitchell 
     Court's finding of greater societal harm. Somehow, this time 
     around with respect to S. 931, Professor Tribe seems blinded 
     to the greater societal harm that is inherent in the use of a 
     symbol of freedom and national unity to provoke violence and 
     unrest. I cannot imagine the Court turning a blind eye to the 
     distinctive harms involved in using the national flag to 
     incite violence. As the Mitchell Court recognized, there is a 
     considerable difference between laws that control conduct and 
     those directed at controlling speech. Mitchell, 508 U.S. at 
     486-90.
       Section 3(c).--The two professors part company, however, on 
     whether the government may especially punish the destruction 
     of certain kinds of government property, in this instance, 
     government-owned flags. Professor Tribe, consistent with his 
     hate-crime testimony and the Court's holding in Mitchell, 
     recognizes that a special form of emotional harm might be at 
     issue and that this translation of the government's interest 
     into law could be constitutional.\1\ Professor Parker takes 
     the opposite view because he finds the same flaw throughout 
     the bill: the singling out of the flag as something of 
     especial interest to the federal government. For the same 
     reasons stated in defense of Section 3(b), this argument 
     fails.
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     \1\ He hesitates in his opinion, in part because he 
     mistakenly distinguishes the federal government (which has no 
     emotions) from the people that constitute that government 
     (who do have emotions). The assertion of an interest on 
     behalf of the people, as the Mitchell Court made evident, is 
     a valid one by the government.
---------------------------------------------------------------------------
       Section 3(d).--Perhaps most remarkable of all is the two 
     professors' assertion that S. 931 cannot constitutionally 
     punish theft and destruction of another's U.S. flag on 
     federal property. Certainly, the theft and destruction of 
     property on federal land is well within the police power of 
     the federal government to punish. In their constitutional 
     analysis of this section, the professors wonder what especial 
     federal interest there is in protecting U.S. flags from theft 
     and destruction on federal land over, to use one of their 
     examples, ``great-grandmothers' wedding dresses.'' To pose 
     the question, though, is to answer it. There is, as the 
     Johnson and Eichman Courts conceded, a definite and unique 
     interest on the part of government in the flag of the United 
     States. For people to be invited onto government property, 
     perhaps, for example, to celebrate Armed Forces Day when they 
     are likely to engage in flag-waving, and be subjected to 
     theft and destruction of property produces a special and 
     distinctive harm that it is well within the government's 
     authority to punish. It is difficult to imagine the argument 
     that might be made to justify a similar federal interest in a 
     treasured family heirloom, such as a wedding dress, that 
     somehow made it onto federal property, was stolen and then 
     destroyed there.
       Contrary to the letter drafted by the two distinguished 
     professors, the constitutionality of S. 931 should not give 
     any Member of Congress pause. The Supreme Court has virtually 
     invited Congress to pass such an Act and indicated its 
     validity. Because wise constitutional counsel and the lessons 
     of history indicate that amending our Constitution should not 
     be undertaken when a statutory resolution is available, it is 
     imperative that Congress give serious consideration to S. 931 
     rather than embark on a constitutional journey that holds 
     implications for our freedoms that even the most foresighted 
     cannot anticipate.
           Sincerely,
     Robert S. Peck, Esq.
                                  ____

                                                  Duke University,


                                                School of Law,

                                       Durham, NC, March 31, 1999.
     Senator Orrin G. Hatch,
     Chairman, Senate Judiciary Committee,
                      Dirksen Senate Office Bldg., Washington, DC.
       Dear Senator Hatch: I have reviewed S. 1335 styled ``The 
     Flag Protection and Free Speech Act of 1995.'' I have also 
     reviewed the November 8, 1995 Memorandum of the Congressional 
     Research Service, and the recent letters you received from 
     Professors Stephen Presser and Paul Cassell offering comments 
     and observations on the proposed act. My observations, such 
     as they are, are these--
       I. If the principal provisions of this proposed bill are 
     narrowly construed--as I believe they might well be \1\--then 
     I am inclined to agree more nearly with the analysis provided 
     by the Memorandum of the Congressional Research Service than 
     with that provided by my able colleagues at Northwestern 
     (Steve Presser) and Utah (Paul Cassell). In brief, as 
     narrowly construed and rigorously applied, the principal 
     section of the act (Sec. 3(a)) may not be inconsistent with 
     the First Amendment and may withstand judicial scrutiny when 
     reviewed in the courts. I say this because as thus narrowly 
     construed and applied, Sec. 3(a) may apply only in 
     circumstances in which it would meet the requirements the 
     Supreme Court itself has laid down in the principal case 
     applicable to more general laws of this same sort.\2\ Herein 
     is how that analysis is likely to proceed:
---------------------------------------------------------------------------
     Footnontes at end of letter.
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       A. Specifically, Sec. 3(a) proposes to amend Sec. 700 of 
     title 18 (the Criminal Code of the United States). It does 
     so, however, by subjecting to criminal prosecution only such 
     person who--destroys or damages a flag of the United States 
     with the primary purpose and intent to incite or produce 
     imminent violence or a breach of the peace, and in 
     circumstances where the person knows it is reasonably likely 
     to produce imminent violence or a breach of the peace.
       Fairly (albeit strictly) read, the statute thus may require 
     both of the following matters to be proved in any case 
     brought pursuant to this section--and both of these matters 
     must, as in any other criminal case, be proved beyond 
     reasonable doubt:
       1. That ``the primary purpose'' (i.e., the principal 
     objective \3\) sought by the defendant was to incite 
     ``violence or a breach of the peace'' and, indeed, that it 
     was his specific intent to do just that;
       2. That when he acted primarily to bring about that result 
     (and only secondarily, if at all, to achieve some other aim), 
     moreover, the circumstances were such that it was at least 
     ``reasonably likely'' in fact his actions would have 
     precisely that consequence (as he fully intended) even as he 
     himself fully understood.
       3. Likewise, however, according to the plain implication of 
     its own terms as thus understood, nothing in this section \4\ 
     is meant otherwise to subject one to prosecution merely for 
     destroying or damaging a flag of the United States--no matter 
     how offensive or objectionable others may find any such act 
     to be. And, specifically, to make this latter matter quite 
     clear in a relevant fashion, Sec. 2(a)(4) (which immediately 
     precedes Sec. 3(a))--expressly distinguishes any and all 
     cases where one destroys or damages a flag when one does so 
     to ``make a political statement,'' rather then merely ``to 
     incite a violent response.'' \5\
       4. Subsection (a)(3) of Sec. 2, separately declares that 
     ``abuse of the flag . . . may amount to fighting words,'' 
     which doubtless is true (i.e., it may, just as the provision 
     thus also equally acknowledges, however, that it may not.) To 
     avoid constitutional difficulties--difficulties that would 
     arise from any broader understanding of this provision--it 
     would be appropriate to interpret this provision merely to 
     declare that abuse of the flag may be a means chosen 
     deliberately to provoke a violent reaction and if undertaken 
     just for that purpose then--as in the instance of ``fighting 
     words'' (e.g., when ``fighting words'' are themselves used 
     not as a form of political statement but, rather, in order to 
     provoke a violent reaction)--it is the author's understanding 
     that such conduct when intended to incite a violent response 
     rather than to make a political statement is outside the 
     protections afforded by the first amendment. Again, taken 
     this was, the observation may be substantially correct--but 
     in being correct, it also covers very little ground.\6\
       B. Necessarily, all of this should mean \7\ that even if 
     the circumstances were such that violence (or a breach of 
     peace) could reasonably be expected to result as a 
     consequence of the defendant's actions, so long as it was not 
     his primary purpose or intent to induce or incite it--when he 
     burned or destroyed a flag \8\--he is not to be subject to 
     any penalty under this law. Specifically, if this is correct, 
     all merely ``reactive'' violence--violence not sought as the 
     immediate object by the defendant (who burns a flag as a 
     political statement or as a public, politically demonstrative 
     act of protest) but violence by those who, say, are but 
     observors or passersby made angry or indignant by what they 
     regard as outrageous behavior by him, for example, is thus 
     not to be utilized as sufficient reason to seek his 
     imprisonment rather than theirs.--Or so, at least, I believe 
     the statute can be interpreted to provide. And if (and 
     probably only if) it is so interpreted as I believe it thus 
     can be understood, I think it will survive in the courts.\9\
       II. The vast majority of all instances when the American 
     flag has been used in some fashion others find offensive (and 
     some may be inclined to react to it in ways involving 
     violence or a breach of the peace) have been so 
     overwhelmingly merely an inseparable part of some kind of 
     obvious political statement, however, that a criminal statute 
     reaching such a use of the flag (including defacing or 
     burning a flag) only when ``primarily . . . intended to 
     incite a violent response rather than [to] make a political 
     statement,'' will cover very little. For example, so far as I 
     can determine, it will cover no instance of public flag 
     ``desecration'' of any of the many (allegedly) offensive 
     kinds of ``flag abuse'' that have been a fairly commonplace 
     feature of our political landscape during the past fifty 
     years in point of fact. And unless these past practices 
     suddenly take a different turn, therefore, whatever

[[Page S1710]]

     the pretensions of the sponsors of the bill might be, there 
     will be little or no real work for this proposed act to 
     do.\10\
       But permit me to get quite specific about this last 
     observation, since it may seem counterintuitive. Still, there 
     is frankly no question that this observation is fully 
     applicable, by way of example, both to the events involved in 
     Texas v. Johnson \11\ and to those also involved in United 
     States v Eichman,\12\ which events and cases previous bills 
     (and now this bill) were evidently meant to respond to in 
     some fashion, but that this bill could by its own terms not 
     affect at all.\13\ And I press this observation, because 
     precisely to the extent the bill has been drafted--and can be 
     construed--to avoid the constitutional infirmities of prior, 
     failed, ``flag protection'' acts--by being very narrowly 
     drawn as the sponsors have striven to do, it merely indicates 
     limitations in no way reflecting on its drafters, but merely 
     what the First Amendment itself protects--and will continue 
     to protect unless itself altered, amended, or abridged.
       A. So, for example, in Texas v. Johnson, Justice Brennan 
     begins the Opinion for the Court by expressly noting that 
     Johnson was convicted for publicly burning an American 
     flag,\14\ but strictly as an expressive part and feature of a 
     public and political demonstration, neither more nor less, as 
     Justice Brennan expressly observed in the opening sentence of 
     the Court's Opinion in the case.\15\ Indeed, it was this 
     fact--that the particular acts of the defendant were so 
     entwined--that brought the first amendment to bear, and it 
     was also this fact that served as the basis of the Court's 
     decision reversing his conviction--nor would the proposed 
     bill apparently affect the case in any way at all.\16\ As 
     Justice Brennan also noted in the case,\17\ while 
     ``several witnesses testified they were seriously offended 
     by the flag-burning,'' it was also clear that ``[n]o one 
     was physically injured or threatened with injury'' by 
     anything Johnson said or did, including (among the things 
     he did) burning a flag.
       B. Next, when this Congress nevertheless reacted to the 
     furor created by the Supreme Court's decision in Texas v. 
     Johnson, by enacting the Flag Protection Act of 1989 (as I 
     and others urged it at the time not to do and testified would 
     not withstand constitutional scrutiny consistent with the 
     Court's decision in Johnson), that act in turn was at once 
     tested by individuals who protested the act's enactment by 
     very publicly burning flags in demonstrative opposition to 
     the act itself.\18\ In reviewing the several convictions 
     obtained in the lower courts (under the new act of Congress) 
     in both these cases, the Supreme Court at once did all of the 
     following: (a) It expressly affirmed its decision in Johnson; 
     (b) applied it to these cases (which had been brought to it 
     for prompt review of those convicted under the new act of 
     Congress); (c) reversed both convictions; and (d) held the 
     act unconstitutional as applied.\19\
       Nor--and here's the immediate point to which these 
     observations are meant to be pertinent--do I read or 
     understand the provisions of the proposed bill, S. 1335, as 
     presuming to try to dictate a different result in any case 
     involving similar facts and acts as were all present in these 
     cases--for, indeed, if it did, presumably the outcome would 
     once again be the same--the act as thus applied (were it 
     thought to apply) would be unconstitutional as applied unless 
     the Court itself is prepared simply to overrule itself as 
     there is no reason to think it would or should.
       C. And again, in still a different case, in Spence v. 
     Washington,\20\ the alleged criminalized misuse of a flag 
     consisted of defendant's effrontery in having presumed to 
     tape a peace symbol onto the face of a flag--thus 
     ``defacing'' it--which flag he then displayed (as a political 
     demonstration of his views) outward from the window of his 
     apartment for public view. Here, again, the Supreme Court 
     reversed the conviction (a conviction obtained under a state 
     law forbidding such defacing and public display of a flag). 
     It reversed that conviction ``on the ground that as applied 
     to appellant's activity the Washington statute impermissibly 
     infringed protected expression.'' \21\
       In brief, here, too, the facts involved a politically 
     expressive use of a physical flag, not burned, but 
     nevertheless altered in a manner the state statute forbade, 
     and then publicly displayed, as Spence saw fit to do. 
     Moreover, that Spence's use of his flag in this way may have 
     offended others (as indeed it did), or may have motivated 
     some even to want to act against him in some way, was neither 
     here nor there. As the Court itself observed in Spence: \22\ 
     ``We are unable to affirm the judgment below on the ground 
     that the State may have desired to protect the sensibilities 
     of passersby. `It is firmly settled that under our 
     Constitution the public expression of ideas may not be 
     prohibited merely because the ideas are themselves offensive 
     to some of their hearers.' '' \23\
       D. The just-quoted portion of Spence, moreover, was itself 
     taken from a still earlier ``flag-abuse'' case, itself once 
     again, however, also involving a political demonstrative 
     destruction (burning) of a flag on the public street, with 
     the defendant's conviction once again reversed on First 
     Amendment grounds. In Street v. New York,\24\ as in each of 
     these other real cases, it was plain on the facts that the 
     incident was one involving the public expression of political 
     feelings (nor was there any evidence that Street presumed to 
     burn a flag when and as he did to incite lawless action 
     either against himself or anyone else). Indeed, however, I 
     have found no case at all where it was plain that the 
     ``destruction of the flag of the United States'' was in fact 
     ``intended to incite a violent response rather than make a 
     political statement,'' \25\ so to lift it out from First 
     Amendment protection, much less any that appear to meet the 
     full requirements of the act.
       IV. Briefly Then To Sum Up: Unless the critical provision 
     of the act is applied more broadly than a tightly constrained 
     construction would approve \26\--
       (a) If thus construed (as it can be construed) to apply 
     only in circumstances consistent with the requirements of 
     Brandenburg v. Ohio, within that restricted field of 
     application, it may well be sustained in the Supreme Court;
       (b) However, as thus very tightly constrained, it will not 
     reach many--possibly not any--of the various kinds of ``flag 
     burning'' cases, or other ``flag desecration'' or ``flag 
     abuse'' cases involving varieties of political expression and 
     political demonstrations previously held by the Supreme Court 
     to be protected by the First Amendment.
       (c) Moreover, the cases it--the act--may clearly reach 
     without substantial risk of being held unconstitutional as 
     applied, are cases involving acts already so subject to such 
     criminal penalties (e.g., for incitement to violence or riot) 
     as state and federal criminal law already cover, as to raise 
     as a fair question respecting the need for or propriety of 
     this legislation at all. And in brief, if this is so, one 
     must finally ask, just what is there, if anything, of a 
     constitutionally proper concern, that is honestly sought to 
     be served by the act?
       V. I am frankly unable to answer this last question I have 
     just posed, and may be forgiven a reluctance to speculate. 
     Yet, whatever it is, it will be most unseemly, I cannot help 
     but believe, that Congress may exhibit no equal interest in 
     bringing to bear the full impact of harsh national criminal 
     sanctions against anyone mistreating the flags of other 
     nations in demonstrations of protest as may occur in this 
     country, as Congress appears so willing to provide for our 
     own. But evidently this is what some in Congress appear eager 
     and willing to do. Again, however, I cannot imagine why.
       Yet, if so, is this, then, finally to be the example of 
     ``liberty'' and of ``freedom'' we now mean to broadcast to 
     the world?--That Americans are free to burn the English Union 
     Jack, or despoil the French Tricolor, or trample the flag of 
     Canada, South Africa, Iraq, Pakistan, India, or Mexico, as 
     they like, in messages and demonstrations of discontent or 
     protest as they may freely occur in this country, but 
     assuredly not (or not so far as this Congress will be given 
     license by the Supreme Court to prevent it) as to make any 
     equivalent use of our own? And indeed that this is how we now 
     want to present ourselves to the world?
       But I would hope, Senator Hatch, that you and your 
     colleagues would think otherwise, and that you will conclude 
     that to ``wrap the flag'' in the plaster casts of criminal 
     statutes in this way--as this and virtually every similar 
     bill \27\ seeks to do--would be a signal mistake. Its 
     occasional burning, utterly unattended by arrest, by 
     prosecution, by sanctions of jail and imprisonment, is surely 
     a far better tribute to freedom than that it is never 
     burned--but where the explanation is not that no one is ever 
     so moved to do (we know some are) but are stayed from doing 
     so by fear of being imprisoned, as some would seek to have 
     done. That kind of inhibiting fear is merely the example even 
     now, half-way around the world. It is furnished in a place 
     called Tianamen Square. It is a quiet, well-ordered 
     place.\28\ But Tianamen Square is not what ought to appeal to 
     us--it is but a quietude of repression, it has a desuetude of 
     fear, it is a place occupied by the harsh regime of criminal 
     law. It furnishes no example whatever of a sort we should 
     desire to emulate or pursue.\29\
       So, I hope in the end that you and your colleagues may come 
     to believe the flag of the United States is not honored by 
     putting those who ``abuse'' it, whether in some egregious or 
     in some petty incendiary fashion, in prison or in jail. 
     Rather, let us regard them even as Jefferson spoke more 
     generally to such matters in his first Inaugural Address,\30\ 
     leaving them ``undisturbed as monuments of the safety with 
     which error of opinion may be tolerated where reason is left 
     free to combat it,'' as surely is true.
           Sincerely,
                                              William Van Alstyne.


                               footnotes

     \1\ It is the firm practice of the Supreme Court to construe 
     acts of Congress very stringently (i.e., narrowly) when any 
     broader construction would at once draw it into serious first 
     amendment question. (For useful and pertinent examples, see 
     National Endowment for the Arts v. Karen Finley et al., 118 
     S.Ct. 2168 (1998); Watts v. United States, 394 U.S. 705 
     (1969); Yates v. United States, 354 U.S. 198 (1957).)
     \2\ That controlling case is almost certain to be Brandenburg 
     v. Ohio, 395 U.S. 444 (1969) (discussed infra, in footnote 
     9).
     \3\ not a secondary or even related, co-equal, objective. . . 
     .
     \4\ To be sure, other sections do reach some other acts 
     (e.g., ``damaging a flag belonging to the United States'' 
     (Sec. 700(b)) or stealing or knowingly converting and 
     destroying a third person's flag (Sec. 700(c)), but these 
     provisions are doubtless secondary in significance and so I 
     defer consideration for such slight discussion of these 
     provisions as they are worth. (Briefly, however, there is no 
     likely problem with the provision re ``a flag belonging to 
     the United States.'' (See e.g., Spence v. Washington, 418 
     U.S. 405, 409 (1974) (dictum) (``We have no doubt that the 
     State or National Governments constitutionally may forbid 
     anyone from mishandling in any manner a flag that is public 
     property.'') As to a flag merely

[[Page S1711]]

     owned by a third party, that one ``steal[s], knowingly 
     convert[s], and destroy[s],'' there may be--as the other 
     commentators have noted--a federalism problem (the act in 
     this regard would not appear to meet any of the requirements 
     under United States v. Lopez, 514 U.S. 549 (1996), nor does 
     the act appear to be connected to any other enumerated power 
     provided in Article I Sec. 8 of the Constitution (e.g., the 
     spending power, tax power, etc.). It remains arguable, 
     however, that the same (merely implied) power providing 
     Congress with legislative authority to establish incidental 
     insignia of nationhood (e.g., a flag, motto, seal, etc.) 
     could conceivably permit it to draw on the ``necessary and 
     proper clause'' to protect personal flag ownership from 
     interference (including interference by theft or conversion), 
     so the ultimate answer to this question is a bit unclear. I 
     agree with the other commentators, however, that without 
     doubt state criminal (and tort) laws already reach all 
     instances that would come within this provision--so it is at 
     best redundant and may inadvertently?) represent still one 
     more instance of gratuitously piling federal criminal 
     sanctions on top of pre-existing state sanctions (a practice 
     the American Bar Association, as well as the Chief Justice of 
     the United States, has recently asked Congress to use more 
     sparingly if at all). In brief, neither need for, nor any 
     special utility of, these provisions has been shown.)
     \5\ Subsection (a)(4) of Sec. 2, (``Findings and Purposes'') 
     declares (with emphasis and bracketed material added) that 
     ``destruction of the flag . . . can [but need not] be 
     intended to incite a violate response rather than make a 
     political statement and such conduct [presumably meaning by 
     `such conduct' only such conduct as is indeed intended to 
     incite a violent response and not intended to make a 
     political statement] is outside the protections afforded by 
     the first amendment. . . .'' As thus understood (i.e., 
     understood as aided by the words I have placed in brackets), 
     the subsection is not necessarily inaccurate as a strict 
     first amendment matter.
     \6\ (See discussion infra in text at II.).
     \7\ And to avoid first amendment objections, must probably be 
     construed to mean. . . .
     \8\ Whether as ``a political statement'' or for any other 
     purpose. . . .
     \9\ As thus construed and applied, it may meet the test 
     provided in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) 
     (``[Our decisions] have fashioned the principle that the 
     guarantee of free speech . . . do not permit a State to 
     forbid or proscribe advocacy of the use of force or of law 
     violation except where such advocacy is directed to inciting 
     or producing imminent lawless action and is likely to incite 
     or produce such action.''). If such ``advocacy'' (i.e., such 
     ``speech act'' as one engages in) is directed to ``inciting 
     or producing'' imminent lawless action (and is ``likely to 
     incite or produce such action''), on the other hand, the 
     Court plainly implies that ``the guarantees of free speech'' 
     do not immunize one from arrest or from prosecution under a 
     suitably framed, properly applied law.
     \10\ Moreover, to the extent there is any such useful work, 
     such as it might be thought to be, it would be largely merely 
     redundant of what is already subject to a multitude of state 
     and local criminal laws--laws that already reach incitement 
     to riot, violence, or breach of the peace, whether or not it 
     involves torching a flag. Nor is there any reason at all to 
     believe that any of the states--all of which already have 
     such laws--are either unable or unwilling to bring the full 
     force of any such merely standard criminal statutes to bear 
     when any actual case would arise of a kind any of these 
     criminal statutes can validly reach. In brief, this is simply 
     not a subject where state or local law enforcement 
     authorities lack encouragement or means to apply the regular 
     force of applicable state criminal law, nor do I think the 
     sponsors of the bill could readily provide examples of such 
     local or state prosecutorial laxity. Far from this being the 
     case, quite the opposite tends to be the rule--prosecutorial 
     zeal in this area is surely the more usual response. The 
     ``need'' for some overlapping, largely duplicative, criminal 
     statute by Congress in this area, in short, is thus fare from 
     clear.
     \11\ 491 U.S. 397 (1989).
     \12\ 486 U.S. 310 (1990).
     \13\ Indeed, however, the observation is fully applicable as 
     well to virtually every other case the Supreme Court and 
     indeed the lower courts have had occasion to consider during 
     the past fifty years, involving politically controversial 
     uses of the flag. Some of these are discussed infra in the 
     text.
     \14\ (--For which he was promptly prosecuted under the 
     relevant Texas statute punishing acts of physical desecration 
     of venerated objects including the American flag as one such 
     object, ultimately and successfully appealing that conviction 
     to the Supreme Court.).
     \15\ 491 U.S. 397, 399 (1989).
     \16\ Johnson was not arrested or prosecuted for ``inciting, 
     or attempting to incite, a riot or violence,'' nor is there 
     any reason to think he would not have been charged with that 
     offense had the arresting officers believed there were 
     suitable grounds (rather there was simply no evidence that 
     this was his intent--to incite or to provoke a riot--in 
     burning the flag in a public plaza--as an incident of 
     expressing bitter feelings for ongoing proceedings in the 
     Republican Convention then in progress, in Dallas).
     \17\ 491 U.S. at 399.
     \18\ In one instance the defiance of Congress' handiwork was 
     demonstrated very publicly indeed, specifically, as noted in 
     the Court's subsequent Opinion, by several persons who 
     ``knowingly set[] fire to several United States flags on the 
     steps of the United States Capital while protesting various 
     aspects of the Government's domestic and foreign policy'' and 
     virtually simultaneously by others, ``by knowingly setting 
     fire to a United States flag in Seattle while protesting the 
     Act's passage.'' (See United States v. Eichman, 496 U.S. 310 
     at 312 (1990).
     \19\ United States v. Eichman, 496 U.S. 310 (1990).
     \20\ 418 U.S. 405 (1974).
     \21\ Id at 406.
     \22\ Id at 412.
     \23\ And in Spence, note, too, that the Court had also 
     declared: ``Nor may appellant be punished for failing to show 
     proper respect for our national emblem [citing still previous 
     decisions of the Court].'' There was no novelty in any of 
     this. The Court has for decades made it perfectly plain that 
     the first amendment protected uses of flags (e.g., incidental 
     to political demonstrations) were not to be made subject to 
     any offended person's veto; nor may the state use the 
     disturbance of the peace, much less the threat of riot, by 
     persons affronted or made angry over one's provocative use of 
     first amendment rights (including flag uses) as a 
     justification to arrest the person exercising those rights. 
     See e.g., R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992); 
     American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985), 
     summarily aff'd, 475 U.S. 1001 (1986); Houston v. Hill, 482 
     U.S. 451 (1987); People v. Cohen, 403 U.S. 15 (1971) (``[T]he 
     issue is whether California can excise, as `offensive 
     conduct' one particular scurrilous epithet from public 
     discourse, either upon the theory . . . that it's use is 
     inherently likely to causes violent reaction or upon a more 
     general assertion that the State, acting as guardian of 
     public morality, may properly remove this offensive word from 
     the public vocabulary. * * * The argument amounts to little 
     more than the self-defeating proposition that to avoid 
     physical censorship of one who has not sought to provoke such 
     a response by a hypothetical coterie of the violent and 
     lawless, the State may more appropriately effectuate that 
     censorship [itself].''); Rosenfield v. New Jersey, 408 U.S. 
     901 (1972); Lewis v. New Orleans, 408 U.S. 913 (1972); Brown 
     v. Oklahoma, 408 U.S. 914 (1972); Gooding v. Wilson, 405 U.S. 
     518 (1972); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) 
     (``[A] 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.'') Cantwell v. Connecticut, 320 U.S. 296 
     (1940). See also Skokie v. National Socialist Party, 373 
     N.E.2d 21 (Ill. 1978).
     \24\ 394 U.S. 576 (1969).
     \25\ --Whether or not by means one could expect to stir some 
     to resentment or anger (that it may do so does not in any 
     degree make it less of a means of making a political 
     statement on that account).
     \26\ --In which event, if it is given any significantly 
     broader sweep it is likely to be held unconstitutional (even 
     as Professors Presser and Cassell suggested).
     \27\ --And even some proposed amendments to the Constitution 
     itself.
     \28\ No one would dare burn the national flag of The Peoples' 
     Republic, not now, not in Tianamen Square.
     \29\ The better contrasting example we should desire to 
     furnish, surely, is to be found in the compelling remarks by 
     Thomas Jefferson in his own first Inaugural Address. It was 
     Jefferson's straightforward view that--
     ``If there be any among us who would wish to dissolve this 
     union or change it republican form, let them stand 
     undisturbed as monuments of the safety with which error of 
     opinion may be tolerated where reason is left free to combat 
     it.''
     \30\ (See quotation supra, n. 29.)
                                  ____



                              Gen. Colin L. Powell, USA (Ret),

                                     Alexandria, VA, May 18, 1999.
     Hon. Patrick Leahy,
     U.S. Senate, Washington, DC.
       Dear Senator Leahy: Thank you for your recent letter asking 
     my views on the proposed flag protection amendment.
       I love our flag, our Constitution and our country with a 
     love that has no bounds. I defended all three for 35 years as 
     a soldier and was willing to give my life in their defense.
       Americans revere their flag as a symbol of the Nation. 
     Indeed, it is because of that reverence that the amendment is 
     under consideration. Few countries in the world would think 
     of amending their Constitution for the purpose of protecting 
     such a symbol.
       We are rightfully outraged when anyone attacks or 
     desecrates our flag. Few Americans do such things and when 
     they do they are subject to the rightful condemnation of 
     their fellow citizens. They may be destroying a piece of 
     cloth, but they do no damage to our system of freedom which 
     tolerates such desecration.
       If they are destroying a flag that belongs to someone else, 
     that's a prosecutable crime. If it is a flag they own, I 
     really don't want to amend the Constitution to prosecute 
     someone for foolishly desecrating their own property. We 
     should condemn them and pity them instead.
       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment in state legislatures for such an amendment. I feel 
     the same sense of outrage. But I step back from amending the 
     Constitution to relieve that outrage. The First Amendment 
     exists to insure that freedom of speech and expression 
     applies not just to that with which we agree or disagree, but 
     also that which we find outrageous.
       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will still be flying proudly long 
     after they have slunk away.
       Finally, I shudder to think of the legal morass we will 
     create trying to implement the body of law that will emerge 
     from such an amendment.
       If I were a member of Congress, I would not vote for the 
     proposed amendment and would fully understand and respect the 
     views of those who would. For or against, we all love our 
     flag with equal devotion.
           Sincerely,
                                                  Colin L. Powell.

  Mr. McCONNELL. Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. McCONNELL. Mr. President, I yield such time as he may need to 
Senator Bennett.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. BENNETT. Mr. President, I am not happy rising in this situation 
because it puts me in a difficult personal conundrum. I have enormous 
respect for my senior colleague, Senator Hatch, who is a primary 
sponsor of this resolution. He has been gracious to me as a junior 
Senator entering this Chamber. He has supported me and guided me and 
counseled me in ways that are invaluable.
  I do my very best, on every possible occasion, to stand with Senator 
Hatch and to support him and recognize his great wisdom, particularly 
in matters relating to the law. I am unburdened with a legal education, 
and he is one of

[[Page S1712]]

the better lawyers in this body, so I do what I can to listen to him 
and follow him. Unfortunately, on this issue, I am unable to follow 
him. That is why there is some personal angst in the fact that I take 
the floor to make this statement.
  I am not a lawyer, but I do have an academic background as a 
political scientist. That was my degree in college. In that situation, 
I spent a good deal of time studying the Constitution, studying the 
circumstances surrounding its adoption, and studying particularly the 
Federalist Papers, which were the political tracts written at the time 
to try to achieve ratification of the Constitution.
  From that study, I have come to the conclusion that this amendment to 
the Constitution would be a mistake. Because I have taken an oath in 
this Chamber to uphold and defend the Constitution to the best of my 
ability, and have come to the conclusion that I cannot be true to that 
oath, as I understand it--I cast no aspersions on those who interpret 
the oath differently--I will not vote for this amendment. People say: 
What is wrong with it? It is simply enabling language. You read the 
language, and it is indeed relatively innocuous. Do I think it would 
damage or mar the Constitution in some fundamental way if it were 
adopted? No, I don't. So why not go along with my colleague and go 
along with public opinion and go ahead and put it in the Constitution?

  Let me share with my colleagues my reasoning on this. The flag is a 
symbol. By itself, intrinsically, it is nothing more than a piece of 
cloth or several pieces of colored cloth sewn together. It has great 
power as a symbol because of what it represents, and we must do what we 
can to teach respect for that symbol among our youth and to maintain 
that respect as we mature.
  The Constitution is something more than a symbol. The Constitution is 
our fundamental basic law. Everything we do is measured against it. If 
we do something in this body that does not meet that measure, it is 
appropriately struck down and made invalid. The Constitution is more 
than a symbol.
  We are dealing here with a nonissue. No one is burning the flag in 
America today in any discernible numbers. No one is creating outcry 
throughout our populace. No one is doing anything to incite any kind of 
reaction over this issue. This is a nonissue that came out of the 1960s 
and 1970s. We are 30 years beyond the time when this was something 
really happening in this country.
  If we adopt this amendment, we will be putting a symbol in the 
Constitution that I do not want my name attached to. The symbol will be 
this: We will have decided that whenever the Congress, responding to 
public opinion, disagrees with a Supreme Court decision, they will 
amend the Constitution, and they will even do it if the issue is a 
nonissue. The words will lie there. I think they won't make much 
difference one way or the other, but they will be there as a symbol of 
our willingness to overturn more than 200 years of tradition with 
respect to individual rights as outlined in the first amendment. That 
is a symbol of what I consider to be our foolishness to which I do not 
want my name attached.
  For that reason, I am not in support of this amendment. I have taken 
the floor opposing this amendment on a previous occasion and so do now.
  I will make one other comment before I sit down. I have just come 
from a television interview where the issue was campaign finance 
reform. The Vice President has just made a very long and stirring call 
to arms that we must somehow protect the Nation against the rising 
cancer of what he calls ``special interest money.'' I think the Vice 
President is profoundly wrong in his understanding of what happens in 
the campaign situation. I will save that discussion for another time.
  The thing he did not say and that I tried to say in my television 
response to the Vice President was that he was ignoring the 
constitutional implications of what he was proposing. As I pointed out 
to the television audience, one of the more honest members of the 
Democratic Party, Senator Hollings, will be on the floor in this debate 
to recognize that you cannot do what the Vice President wants to do 
with respect to campaign finance reform unless you amend the first 
amendment, unless you amend the Constitution. There are some who are 
not as honest as Senator Hollings who are saying you can do it without 
amending the Constitution. Senator Hollings will have an amendment to 
the Constitution. Again, I think he is profoundly wrong, but he is at 
least honest and straightforward and open about his intentions.

  An editorial ran in the Washington Post some years ago, speaking of 
myself and other Republicans, and said: If they were really serious in 
their opposition to campaign finance reform on constitutional grounds, 
they would oppose the flag amendment as well. I had already made up my 
mind and had already made public statement of my intention to oppose 
the flag amendment. I say to those who are in favor of the flag 
amendment but claim they want the Hollings amendment, they should adopt 
the same kind of consistency that the Washington Post urged upon the 
rest of us. If they oppose the flag amendment, they should oppose the 
Hollings amendment with respect to campaign finance reform as well.
  The Hollings amendment on its history will lose. It will lose 
overwhelmingly because most people do not want to tinker with the first 
amendment. One of my colleagues said: I don't want to look back on my 
history as a Senator and say the most significant vote I cast the whole 
time I was there was one that weakened the Bill of Rights.
  I don't either. I do not intend to vote for the Hollings amendment, 
and I do not intend to vote for the Hatch amendment. I think it is 
consistent that we stand firm to protect the liberties of the people to 
express their views however much we disagree with them.
  A final footnote, if it is that: The Senator from Kentucky has shown 
great leadership in crafting a bill that can solve this nonexistent 
problem for those who insist that we must have a solution in a 
statutory way. It will not amend the Constitution. It will lay down a 
statutory marker to which all of us can repair. I urge the adoption of 
the statutory solution to this situation as drafted by the Senator from 
Kentucky and urge the Senate not to tinker with the first amendment and 
first amendment rights, either in the name of protecting the flag or in 
the name of clean elections, both of which are worthwhile goals. There 
are better ways to do it. In this Chamber, we can debate those ways.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. McCONNELL. Mr. President, I listened with great interest to the 
comments of the junior Senator from Utah, with whom I agree on this 
issue entirely.
  One of the items I would like to engage him on--I certainly didn't 
cover it in my comments, and in listening to his, neither did he--was 
the definitional difficulty, in addition to all the other reasons why 
the Constitution or the first amendment should not be amended for the 
first time in 200 years, for either one of these proposals.
  Focusing on the flag desecration amendment, it leads the Senator from 
Kentucky to ask the Senator from Utah if he understands what flag 
desecration is, because I have always had a little difficulty trying to 
figure out what that was. I remember I took my kids to the beach one 
time and saw lots of flags on T-shirts. I even saw one on the behind of 
some blue jeans. There are a variety of ways in which flags are 
displayed in this country that, it seems to me, might be arguably 
inappropriate.
  I wonder if the Senator from Utah thinks if this amendment were to 
become part of the Constitution, we would have a definitional problem 
here as well.
  Mr. BENNETT. Mr. President, the Senator from Kentucky has raised a 
very interesting question because, as I understand it, the requirement 
for a definition would fall to the Congress under this amendment, which 
means it would be decided by statute. It is the intention of the 
Senator from Kentucky to solve the whole problem by statute from the 
beginning. The constitutional amendment would end up being subject to 
congressional definition, as I understand it, and we would be right 
back where we are right now. We would have put this symbol in the 
Constitution and not have resolved any of the issues the Senator from 
Kentucky raises.

[[Page S1713]]

  I think it is a very appropriate issue to be raised at this point. I 
can't give you a definition of what constitutes desecration of the 
flag.
  Mr. McCONNELL. I had a marvelous friend who was a veteran of World 
War I. He lived up until a couple years ago. He lived in my hometown of 
Louisville, KY. His mission, toward the end of his life, was to make 
sure that flag etiquette was always followed. He had become an expert 
on the subject of flag etiquette, which is apparently quite complicated 
because it includes ways in which the flag can be displayed, in 
addition to what we are all familiar with as Boy Scouts, about folding 
the flag properly. He was constantly irritated and offended by ways in 
which well-meaning citizens groups used the flag that he felt were a 
violation of respect with which the flag should be treated in a 
category of behavior generally referred to as flag etiquette. Frankly, 
we were all somewhat confused in trying to do that properly.
  I wonder if we would not, here in the Congress, be right back in the 
same soup, so to speak, as the Senator from Utah points out, in trying 
to determine what is and what isn't proper respect for the flag.
  Mr. BENNETT. Mr. President, the Senator from Kentucky reminds me of a 
similar individual in the State of Utah who constantly berates me every 
time he gets the opportunity on what he considers to be a desecration 
of the flag, which is the addition of gold fringe to the edge of the 
flag. He insists that has a particular legal implication and, indeed, 
went to the point of insisting that if a Federal judge presides in a 
courtroom where the flag has gold fringe on its edge, the actions of 
that Federal judge are not legal and that the flag, to be properly 
displayed, must have no gold edge.
  I noted on one of the rare times I have been in the Oval Office with 
President Clinton, the flag that hangs behind the President's desk has 
a gold edge on it. If indeed we were to come to the conclusion that 
that was a desecration of the flag and that all acts taken in the 
presence of a flag thus desecrated were illegal, then every bill signed 
by the President in the Oval Office under that definition would be 
illegitimate. Obviously, I don't think it will go to that point. But I 
think the Senator from Kentucky has made a legitimate point as to who 
is going to argue which position with respect to what constitutes 
improper handling of the flag.
  Mr. McCONNELL. Mr. President, it could be argued that we might even 
need ``Federal flag police'' to go around and look after proper respect 
to the flag under this amendment. It seems to me if we were going to 
take it seriously and amend the first amendment for the first time in 
200 years and enshrine this in the Constitution, presumably we would 
take this as a serious matter.
  Mr. BENNETT. There is no question but that there would be pressures 
to move in the direction the Senator from Kentucky is talking about. I 
come back to my same observation, which is that if we wanted to do 
that, we could do it by statute. We could do it right now. We don't 
need to amend the Constitution in order for the Congress to pass laws 
with respect to appropriate flag etiquette and apply penalties to those 
who violate the flag etiquette. I am not sure I would vote for those 
kinds of laws, but we have the authority to do that. I think the 
statute offered by the Senator from Kentucky, of which I have the 
privilege and honor of being a cosponsor, moves us in the sensible 
direction to that extent, without leaving behind, as I say, a symbol 
of, in my view, overreaction in the Constitution itself.
  Mr. McCONNELL. Finally, I am not an expert on these matters, but I am 
told that the appropriate way to dispose of a flag that is tattered and 
really torn--in fact, I saw one recently at a school where I brought 
them a flag that had been flown over the Capitol as a replacement for a 
flag that had flown at this elementary school for a long time; it was 
battered and torn and was going to be destroyed. I am told the 
appropriate way to do that is to burn it. I wonder if the Senator from 
Utah shares my view with regard to if that is, in fact, the appropriate 
way to dispose of a flag that actually has reached the end of its 
useful life, how would we determine which flag burning was a 
desecration and which was actually an honor?
  Mr. BENNETT. The Senator raises a very worthwhile point. It is my 
understanding as well that the appropriate way to destroy a flag that 
has outlived its usefulness, or destroy its remnants, is to burn it. 
That is considered an act of great respect. So it becomes a question of 
determining motive; and you can't simply regulate the act, you have to 
go into an understanding of the motive of the act, and, once again----
  Mr. McCONNELL. You have to understand intent, I say to the Senator.
  Mr. BENNETT. Yes, intent. And, once again, if you are dealing with 
the first amendment, the first amendment is very clear that Congress 
shall make no law that impacts on intent; it only has to do with actual 
acts. If you speak against the Government, that is fine. If you enter 
into a conspiracy to actually overthrow the Government, it becomes an 
overt act, and the act is dealt with, but not your intention to 
demonstrate your disapproval.
  So I think the Senator from Kentucky raises a very significant point 
as to how pernicious this could be if it were part of the Constitution 
as opposed to a statute.
  Mr. McCONNELL. Mr. President, I thank the Senator for his important 
contributions. It reminds me of when we discussed this issue 
previously. It leads me to believe that the appropriate way to deal 
with someone who desecrates the flag might be a punch in the nose as 
opposed to evisceration of the first amendment to the U.S. 
Constitution, which we have not changed--and I think wisely--in the 
200-year history of our country.
  I thank the Senator from Utah.
  I yield such time as he may desire to the distinguished Senator from 
North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, I thank the Senator from Kentucky and the 
Senator from Utah. This has always been a very difficult issue for me. 
I voted against a constitutional amendment to prohibit flag desecration 
both as a Member of the House of Representatives and also previously as 
a Member of the Senate. But it has been very difficult, largely because 
I believe, as do most Americans, that desecrating our flag is 
repugnant. It is an act that none of us would find anything other than 
disgusting. Yet the question is not that; the question is, Shall we 
amend the Constitution of the United States?
  As I said on two previous occasions, I have voted against a 
constitutional amendment to prohibit the desecration of the flag, not 
because I believe the flag is not worth protecting--I believe it is 
worth protecting--but because I believe the Constitution should be 
altered only rarely and only in circumstances where it is the only 
method available to achieve a desired result.
  The Constitution was written by 55 men over a couple of centuries 
ago. The room in which they wrote that document still exists, the 
assembly room in Constitution Hall. I was privileged to go back there 
for the 200th birthday of the writing of the Constitution. On that day, 
55 of us went back into the chamber where they wrote the Constitution. 
Men, women, and minorities were among the 55 of us who went into that 
room. Sitting in that room, I got the chills because I saw the chair 
where George Washington sat as he presided over the Constitutional 
Convention. You can see where Ben Franklin, Mason, Madison, and others 
sat as they discussed the development of a constitution for this new 
democracy of ours. That Constitution begins with the three words: We 
the people. Then it describes the framework for self-government, 
representative democracy.
  That framework has served this country very, very well over a very 
long period of time. As I understand it, there have been over 11,000 
proposals to change the Constitution since the Bill of Rights. There 
have been 11,000 different ideas on how to alter the U.S. Constitution. 
Fortunately, over two centuries, 17 have prevailed. The framers of the 
Constitution actually made it fairly difficult to amend the 
Constitution. They did that for good reason. Only 17 of the 11,000 
proposals have actually prevailed. Those 17, of course, are 
significant. Three of them are Reconstruction-era amendments that 
abolished slavery and gave African Americans and women the right to 
vote. There have been amendments

[[Page S1714]]

limiting the President to two terms and establishing an order of 
succession for a President's death or departure from office.
  We have had proposals, for example, to amend the Constitution to 
provide that the Presidency shall be rotated with one term by a 
President from the southern part of the United States and then the next 
term by a President from the northern part. That is just one example of 
the 11,000 proposals to change the U.S. Constitution. It has been done 
only very rarely.
  I indicated to those who support a constitutional amendment that when 
we are confronted with this question again--I greatly respect their 
views; I know they have great passion in doing so; they are patriots--I 
would do a significant review once again, and I have. I reviewed 
virtually all of the writings of the constitutional scholars on this 
issue. I read almost anything anyone has written about it, evaluated 
all of the research, and concluded once again that I think the best 
approach would be to pass a statute of the type described by the 
Senator from Kentucky and the Senator from Utah, and provide protection 
for the flag in that manner which constitutional scholars of the 
Congressional Research Service say will be upheld by the Supreme Court. 
I believe that is the more appropriate and right approach as opposed to 
amending the Constitution.
  I will read something from Gen. Colin Powell, former Chairman of the 
Joint Chiefs of Staff. He puts it probably better than I can. I read it 
only to describe again that there are some who say, well, if you are 
not supporting a constitutional amendment to prohibit desecration of 
the flag somehow you don't support the flag or you are unworthy. That 
is not the case at all. I hope all of us will respect the various 
positions on this.
  Let me read the letter from Gen. Colin Powell.
  He said:

       I love our flag, our Constitution and our country with a 
     love that has no bounds. I defended all three for 35 years as 
     a soldier and was willing to give my life in their defense.
       Americans revere their flag as a symbol of the Nation. 
     Indeed, it is because of that reverence that the amendment is 
     under consideration. Few countries in the world would think 
     of amending their Constitution for the purpose of protecting 
     such a symbol.
       We are rightfully outraged when anyone attacks or 
     desecrates our flag. Few Americans do such things and when 
     they do they are subject to the rightful condemnation of 
     their fellow citizens. They may be destroying a piece of 
     cloth, but they do no damage to our system of freedom which 
     tolerates such desecration.
       If they are destroying a flag that belongs to someone else, 
     that's a prosecutable crime. If it is a flag they own, I 
     really don't want to amend the Constitution to prosecute 
     someone for foolishly desecrating their own property. We 
     should condemn them and pity them instead.
       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment in state legislatures for such an amendment. I feel 
     the same sense of outrage. But I step back from amending the 
     Constitution to relieve that outrage. The First Amendment 
     exists to insure that freedom of speech and expression 
     applies not just to that with which we agree or disagree, but 
     also that which we find outrageous.
       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will be flying proudly long after 
     they have slunk away.
       Finally, I shudder to think of the legal morass we will 
     create trying to implement the body of law that will emerge 
     from such an amendment.
       If I were a member of Congress, I would not vote for the 
     proposed amendment and would fully understand and respect the 
     views of those who would. For or against, we all love our 
     flag with equal devotion.

  I think this letter from Gen. Colin Powell says it well, particularly 
when he says:

       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will be flying proudly long after 
     they have slunk away.

  The statute that has been introduced by my colleagues from Utah and 
Kentucky, cosponsored by myself, Senator Conrad and others, is a 
statute that offers some protection. I am convinced that it would be 
upheld constitutionally, and the constitutional scholars of the 
Congressional Research Service have written us with their opinion that 
it would be upheld as well.
  I believe in every circumstance we ought to find ways to do that 
which is necessary and which is important without the resulting desire 
to change the framework of this democracy, the Constitution.
  I greatly respect those who disagree with me, but I believe that over 
a long period of time--a decade, a half a century, a century--America 
will be better served if we resist the impulse to amend the 
Constitution in ways that will create unintended consequences.
  Once again, that room in which George Washington, Madison, Mason, 
Franklin, and others wrote the Constitution of the United States with 
the advice and consent of Thomas Jefferson, who was serving in Europe 
at the time and contributed most to the Bill of Rights, contains a 
great sense of history for those of us who have been there, as well as 
an understanding that the framework for our democracy, the U.S. 
Constitution, is a very special and very precious document. It should 
be changed only in rare circumstances, and even then only when it is 
the last method available for achieving a result we deem imperative for 
this country.
  I believe the statute that has been offered as an amendment is a 
statutory approach that will solve this issue in an appropriate way, 
and will at the same time preserve the Constitution as intended, 
especially with the Bill of Rights and most especially with the care 
that Congress and the American people have nurtured over nearly two 
centuries.
  Mr. President, let me commend the Senator from Kentucky. I know this 
amendment has been offered before on the floor of the Senate. I heard 
the debate by the Senator from Kentucky and the Senator from Utah. I 
concur with that discussion and hope we can achieve a positive vote on 
this proposal when it is voted on.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Grams). The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I thank the Senator from North Dakota 
for his remarks. I listened carefully to them and am glad to have him 
cosponsor the amendment. I hope the amendment will prevail this time, 
as opposed to the constitutional amendment.
  I thank my friend from North Dakota.
  The PRESIDING OFFICER. Who yields time? The Senator from New 
Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, this is one of those 
issues that is very emotional. We have people on both sides who truly 
have the same goals. We believe alike--that those who burn the flag or 
desecrate the flag in any way are despicable people for whom we should 
have no sympathy.
  I say up front, before I make my remarks, that I certainly have the 
deepest respect for all of my colleagues who believe that we do not 
need a constitutional amendment, especially Senator McConnell for whom 
I have the greatest respect.
  I think we need to look very carefully at this issue. The 
Constitution has been amended. Actually, it has been amended 27 times--
not 17--once with the first 10 amendments, of course, and 17 times 
later. When it was amended, it was amended to clarify, to make clear. 
That is why we have an amendment process. That is why the founders put 
it in there.
  I do not think the constitutional Republic will tremble, shake, and 
fall because we decide to deal with an issue such as flag desecration 
with an amendment. That seems to be the gist of what we are hearing, 
perhaps in an overly legalistic argument that somehow the 
constitutional Republic will have acted irresponsibly to pass an 
amendment to the Constitution which would stop the desecration of the 
flag.
  I am an original cosponsor of the constitutional amendment introduced 
by Senator Hatch, S.J. Res. 14. I am proud to be a cosponsor of that 
amendment.
  The act of the desecration of the U.S. flag is an aggressive and a 
provocative act. It is also an act of violence against a symbol of 
America, our flag. Even more disturbing, it is an act of violence 
against our country's values and principles.
  The Constitution guarantees freedom. There is no question about it. 
It guarantees freedom of speech. But it also seeks to ensure, in the 
words of the Preamble, ``domestic tranquility.''
  Many Americans have given their lives to protect this country as 
symbolized by that flag. My own family, as thousands of other families, 
endured

[[Page S1715]]

the same thing. My dad died in World War II, and my family has that 
flag. It is a very important item in our home, as it is in Senator 
McConnell's home when he mentioned his father.
  I believe the flag deserves the constitutional protection because it 
is more than just a flag. It is more than just a symbol.
  I use the example of a $5 bill which I happen to have in my hand. If 
this is merely a symbol and has no other meaning, then I suppose I 
could ask millions of Americans to send me $5 bills and I will be happy 
to send them back plain pieces of paper because it is just paper. This 
is paper, therefore it is a symbol, and it doesn't have any meaning. So 
I can take all these pieces of paper and send them back to you in 
return for $5 bills.
  If anybody does choose to do this, I will be happy to provide it to 
some charity. I am not looking for $5 bills to be mailed to me.
  There is something beyond the meaning of just this piece of paper on 
this $5 bill, and there is something beyond the meaning of just a piece 
of cloth with the flag of the United States. Some people believe 
outlawing the desecration, which this amendment would authorize 
Congress to do, will lead somehow to the destruction of freedom. I 
disagree. Our Constitution was carefully crafted to protect our 
freedoms, not to diminish them. It also was crafted to promote 
responsibility. We are stepping on very dangerous ground when we allow 
reckless behavior such as flag desecration, whether burning, trampling, 
or whatever the desecration may be.
  This Constitution has served the test of time very well. It has been 
amended on 27 occasions. Interestingly enough, the first ten 
amendments, the Bill of Rights, passed shortly after the Constitution 
itself was passed. Why? Because they wanted to clarify. They didn't 
want anybody to misunderstand that we needed to have certain basic 
freedoms such as the freedom of speech, freedom of religion; the second 
amendment, the right to keep and bear arms, and so forth.
  Oftentimes in the debates on the floor of the Senate many of my 
colleagues pick and choose which amendments they choose to support and 
which they choose to ignore. It is all the Constitution.
  Under our discussion, I don't think the Supreme Court has more power 
than the people. If we were to vote today or tomorrow or the next day 
on this constitutional amendment on flag desecration, it goes to the 
people. It goes to the State legislatures. We are not making a final 
judgment. This is a constitutional process. It was very carefully laid 
out by the founders so that amendments would be very difficult to pass. 
If the American people support Congress if it passes, then we will have 
an amendment to the Constitution, No. 28. If they don't, it will not 
happen. All we are asking is the opportunity to let the people make the 
decision.
  Amending the Constitution is serious, but a simple statute is not 
enough. We tried that and the Court struck down the statute.
  A little bit of history on the legal history of flag burning is 
relevant. Over the years, Congress and the States have recognized the 
devotion our diverse people have for the flag and they have enacted 
statutes over the years that both promote respect for the flag and 
protect the flag from desecration.
  In the Texas v. Johnson case in 1989, by 5-4 vote, referred to 
earlier in the debate, the Supreme Court overturned a conviction of 
Gregory Lee Johnson who desecrated an American flag. Johnson burned an 
American flag at the 1984 Republican National Convention. A fellow 
protester had taken a flag from a flagpole and had given the flag to 
Johnson. At Dallas City Hall, Johnson unfurled the flag, poured 
kerosene on it and burned it.

  That is not speech, I say in all humbleness, candor, and with respect 
to my colleagues. That is not speech. That is an action. That is a 
direct action of desecrating the symbol of America. While the flag 
burned, protesters chanted ``America, the red white and blue, we spit 
on you.''
  A few moments ago, my colleague from Utah, Senator Bennett, was 
saying he didn't know whether we would be able to determine whether or 
not somebody who takes the flag with respect and disposes of it the way 
we are supposed to dispose of it under law --burning it in a respectful 
way--whether there would be any confusion. I do not think there is any 
confusion between that act and what I just referred to, ``America, the 
red white and blue, we spit on you,'' when the flag was torn down from 
a flagpole and kerosene was poured on it. I don't know why anybody 
would be confused by that.
  Johnson was convicted of desecration of a venerated object, in 
violation of section 42.09 of the Texas Penal Code which, among other 
things, made illegal the intentional or knowing desecration of a 
national flag. The Court held the government's interest did not 
outweigh the interest of the flag burner. The act was not oral or 
written political speech; it was conduct. It was conduct, not speech. 
There is a difference.
  Justice Rehnquist, for himself and Justices White and O'Connor, 
stated in dissent: For more than 200 years, the American flag has 
occupied a unique position as the symbol of our Nation, a uniqueness 
that justifies a governmental prohibition against flag burning in the 
way respondent Johnson did here.
  The constitutional amendment would enable Congress to punish the next 
flag burner or the next flag desecrator. In 1989, Congress enacted a 
fairly neutral statute, the Flag Protection Act of 1989, with an 
exception for the disposal of worn or soiled flags as a response to the 
Johnson decision. Based on the new rule announced in Johnson, the 
Supreme Court struck down the statute by a 5-4 vote in United States v. 
Eichman in 1990. S.J. Res. 14 would restore the traditional balance to 
the Court's first amendment interpretation.
  That is all it does. Only a constitutional amendment can restore the 
traditional balance between a society's interest and the actor's 
interest concerning the flag. The first amendment prohibits abridgement 
of freedom of speech. There is always a balancing of society's interest 
with the individual's interest in expression.
  A few examples have been used many times on the floor in debate. Here 
is a good example: Can you yell ``fire'' in a crowded theater?
  Could anyone yell something out now? You would be removed if you were 
in the galleries making a loud comment that disrupted the proceedings. 
You would be removed.
  There are limits on speech. It is simply incorrect to say there are 
no limits to free speech. There are limits to free speech, and it has 
been held as being constitutional. ``Fire'' in a crowded theater was 
held to be unconstitutional in Schenk v. U.S. in 1919.
  There is no constitutional right to disclose State secrets. Some have 
gotten away with it, but we don't have the constitutional right to go 
out to the media and announce all the national secrets that we have 
access to as Senators, along with many individuals who work for the 
U.S. Government who have access to U.S. secrets. They don't go out and 
hold press conferences, nor do they tell our enemies what those secrets 
are. There is not a constitutional right to disclose those secrets.
  There is no constitutional right to defame or libel a person's 
character. That was upheld in Gertz v. Welch. There is no 
constitutional right to engage in partisan political activity in 
working for the Federal Government.
  There is no constitutional right to commercially promote promiscuous 
activity by minors.
  The American flag has not been given that protection by the Supreme 
Court. Congress has a compelling interest in protecting the flag. 
Congress needs to preserve the values embodied by the flag--liberty, 
equality, freedom, and justice for all.
  The flag enhances national unity and our bond to one another in our 
aspiration for national unity. If we read history about the fall of the 
Roman Empire, it is when Rome lost the glue that held it together, when 
they became too big, they became so splintered and there was no unity, 
no cohesion, that they lost their symbol of what the Roman Empire 
meant.
  When we lose the symbol of what we are about, we will lose this 
country. The flag enhances national unity. It enhances the bond. Even 
if we are wrong, even if we do not need the

[[Page S1716]]

amendment--and I do not make that case--even if perhaps Senator 
McConnell and others are correct that we do not need this amendment, so 
what? We err on the side of caution.
  We survived an amendment on prohibition, and we survived an amendment 
to repeal prohibition. The Constitution and the constitutional Republic 
did not fall and die as a result of those amendments which were 
controversial, to say the least. So good amendments and bad amendments 
occur, and the Constitution survives because that is the way it is 
supposed to be.
  Let's err on the side of caution. Let's err on the side of caution. 
It sends a good message to everyone--to young and old, those who fought 
and died, those who survived, and those young people in first, second, 
and third grade classes, and all through our schools all across 
America, that the flag is more than just a symbol. It represents that 
cohesion, that bond, that special thing that makes us Americans. We can 
carry it into battle. We can have it standing behind the Presiding 
Officer. We salute it every morning, as Senator McConnell said, before 
we start our proceedings. If we can salute it, we can protect it. What 
is wrong with that?
  I repeat for emphasis, err on the side of caution. It is not going to 
cause the destruction of America because we reinforce something we 
believe in by amending the Constitution.
  James Madison stated that desecration of the flag is ``a dire 
invasion of sovereignty.''
  Thomas Jefferson considered violation of the flag worthy of a 
``systematic and severe course of punishment.''
  S.J. Res. 14 would remove the Government sanction of flag desecration 
and flag burning. The Judiciary Committee found in hearings that there 
have been between 40 and several hundred acts of flag desecration over 
the past decade. Our Supreme Court has granted the flag burner a 
sanction under the first amendment to engage in the conduct of burning 
an American flag.
  Forty-nine State legislatures and most of the American people want an 
amendment to protect the American flag. All we are doing, if we can get 
the requisite number of votes, is to pass an amendment on to the people 
and the legislatures to make a final decision.
  Our heritage, sovereignty, and values are uniquely represented by 
this flag.
  The flag of the United States of America has long unified our 
countrymen during times of great strife, upheaval, and during the more 
common times of prosperity and pride. It inspired men and women to win 
our independence in the Revolutionary War. Over the years, it has 
represented to a people of all nations freedom and all the values that 
has made America the envy of the world.
  I say to my colleagues, regardless of the technical/legal aspect of 
this, as to whether or not it is legal, whether or not it is 
constitutional, whether it is necessary or not, what is the message we 
send to the world? They will not understand that the Congress of the 
United States, the Senate, refused to pass an amendment to protect the 
flag. It will be misperceived, in my view.
  It is an inspiration. It has been praised in song and in verse. It 
has been honored with a day of its own--Flag Day--and its own code of 
etiquette on how to store it, how to salute it, and what to do with it. 
It has been given allegiance by our schoolchildren and given honor by 
the Supreme Court. The Supreme Court recognizes ``love both of common 
country and of State will diminish in proportion as respect for the 
flag is weakened.'' That was a Nebraska case in 1907.

  How can one say it any better than that? Unfortunately, more recent 
court decisions have struck down State and Federal statutes banning the 
desecration of Old Glory.
  So we debate again. We have done this before. We are going to do it 
again. We debate a constitutional amendment. We should remember the 
important relationship over the years the American flag has had with 
American history, with American freedoms and, indeed, the American 
conscience.
  On June 14, 1777, the Marine Committee of the Second Continental 
Congress adopted a resolution that read:

       Resolved, that the flag of the United States be 13 stripes, 
     alternate red and white, that the union be 13 stars, white in 
     a blue field representing a new constellation.

  Red for hardiness and courage; white for purity and innocence; and 
blue for vigilance, perseverance, and justice.
  George Washington described the flag in much the same way:

       We take the stars from heaven and the red from our mother 
     country, separating it by white stripes, thus showing that we 
     have separated from her; and the white stripes shall go down 
     to posterity representing liberty.

  This new flag made one of its first appearances 2 months later at the 
Battle of Bennington. On August 16, 1777, the American soldiers faced 
the dreaded Hessian mercenaries. While the two forces clashed, American 
General John Stark rallied his troops by saying:

       My men, yonder are the Hessians. They were bought for 7 
     pounds and 10 pence a man. Are you worth more? Prove it. 
     Tonight the American flag floats from yonder hill or Molly 
     Stark sleeps a widow.

  The brave Americans triumphed under their new flag at the Battle of 
Bennington, and the new stars and stripes floated from the hill which 
the Hessians once possessed.
  It was the first time that liberty and freedom was advanced under the 
flag and, as we all know, it was most certainly not the last.
  I can go on and on. Of course, we all know the story of the ``Star-
Spangled Banner.'' How in 1814, Francis Scott Key, a Washington 
attorney, boarded a British warship in the Chesapeake Bay to negotiate 
the release of a prisoner taken when British forces burned the Capitol 
in August.
  While aboard the ship, the British fleet turned its attention to 
Baltimore, and that is where Key witnessed the bombardment of Fort 
McHenry on September 13, 1814. It continued most of the day and night, 
until the British abandoned their failed attack and withdrew.
  Shortly after dawn on the 14th, the morning fog parted and Key saw 
the flag had survived its night of 1,800 13-inch bombshells and 
rockets. Its ``broad stripes and bright stars,'' he said, were still 
``gallantly streaming.''
  Although the forces at Fort McHenry were like sitting ducks under the 
merciless British assault, they withstood the volleys and emerged 
victorious once again under the besieged but still-standing American 
flag.
  Key was inspired by this. It was not a piece of canvas that inspired 
Key to write these things. It was not a piece of cloth. It was more 
than that. It was a flag. There is a difference. It is the same reason 
the $5 bill is not a piece of paper. It has meaning. The flag has 
meaning.
  In 1931, Congress made the ``Star-Spangled Banner'' the official 
national anthem of the United States. We owe our flag, once again under 
siege, constitutional protection. In May 1861, just before the Civil 
War that would tear our Nation apart, Henry Ward Beecher gave a speech 
on ``The National Flag.'' It is worth mentioning a few of the things he 
said in that 1861 speech, bearing in mind that our Nation was about to 
be torn asunder in a war that almost destroyed us:

       A thoughtful mind, when it sees a nation's flag, sees not 
     the flag, but the nation itself. . . .
       Wherever [our flag has] streamed abroad men saw day break 
     bursting on their eyes. For the American flag has been a 
     symbol of Liberty, and men rejoiced in it. . . .
       If one, then, asks me the meaning of our flag, I say to 
     him, it means just what Concord and Lexington meant, what 
     Bunker Hill meant; it means the whole glorious Revolutionary 
     War. . . .
       . . . [it means] the right of men to their own selves and 
     to their liberties. . . .
       . . . our flag means, then, all that our fathers meant in 
     the Revolutionary War; all that the Declaration of 
     Independence meant; it means all that the Constitution of our 
     people, organizing for justice, for liberty, and for 
     happiness, meant.

  Whatever that meant, that is what the flag meant.

       . . . our flag carries American ideas, American history and 
     American feelings. . . .

  Again, my colleagues, err on the side of caution. If you think we do 
not need the amendment to protect it, we will not rock the Republic 
that much if we would just make that statement with the amendment.
  Henry Ward said:

       Every color [of our flag] means liberty; every thread means 
     liberty; every form of star and beam or stripe of light means 
     liberty; not lawlessness, not license; but organized 
     institutional liberty--liberty through law, and laws for 
     liberty!

  I could not agree more. Because the highest court in the land will 
not preserve the liberty represented by our

[[Page S1717]]

flag from lawlessness and license, we must protect it with a 
constitutional amendment.
  One of the most inspirational and emotional places to visit in 
Washington, DC, I say for those who are here who may be listening--you 
have all kinds of things out there that you can visit, from the 
Treasury Building, to the White House, to the Washington Monument, to 
the Lincoln Memorial, to the Jefferson Memorial. They are all 
wonderful. I have been to them all. Let me add one to the list you 
ought to see before you leave: The raising of the flag on Iwo Jima; the 
Iwo Jima Memorial right here in Washington--an image that signifies the 
steep price of freedom.
  On February 19, just last month, we remembered the 55th anniversary 
of that bloody battle. Six thousand Americans gave their lives on Iwo 
Jima. What were they fighting for? Most of them probably did not know 
where Iwo Jima was when they went into the service.
  After 4 days, some Marines finally made it to the top of Mount 
Suribachi. They tried twice to plug a wooden flag pole into the ground. 
Both times it broke. The third time, they wrapped the flag to a metal 
pole. Later during the battle, the second flag was ordered raised when 
commanders on the beach could not easily recognize the first one, which 
was considerably smaller.
  A photographer captured the moment, which has become the U.S. Marine 
Memorial outside Arlington at the National Cemetery.
  Marines later said they could see the flag from a quarter of a mile 
away, and it gave them the courage and inspiration to overcome their 
exhaustion and fear to keep fighting.
  It is amazing. It is not just a flag; it is more than a piece of 
cloth. Ask those guys who were at Iwo Jima. Go see that memorial, and 
see how you feel about an amendment after you see that monument.
  It goes on. We could talk all day--``Buzz'' Aldrin, when he planted 
the flag on the moon. The only good thing about it, I guess, is there 
is no oxygen on the moon so no one could burn it there. Maybe we ought 
to put a few more up there.
  Obviously, there have been many treasured moments in American history 
intertwined with our flag. History shows our laws have reflected the 
values represented by our flag and our Government's interest in 
preserving it.

  In 1634, Massachusetts colonists prosecuted, tried, and convicted a 
person who defaced the Massachusetts State flag. The court concluded 
that defacing the flag was an act of rebellion. This case, called the 
``Endicott's Case,'' reflects the traditional balance between the 
interests of society in preserving the flag and freedom of expression.
  We have early examples of why we can make a strong and powerful case 
for a constitutional amendment. The colonists saw the need to punish 
the act, flag desecration, that violated Government sovereignty.
  The framers of our Constitution, through their words and actions, 
clearly showed the importance of protecting the flag as essential to 
American sovereignty.
  James Madison, in 1800, an expert certainly of the Constitution, if 
there ever was one--he wrote it--denounced the hauling down of the 
American flag from the ship the George Washington as a ``dire invasion 
of [American] sovereignty.''
  In 1802, Madison pronounced an act of flag defacement in the streets 
of Philadelphia to be a violation of law.
  We sometimes overanalyze and overdebate what the founders meant. I am 
amazed by the people in the 20th, now in the 21st century, who know 
what the founders meant. They know all about what they meant. Even 
though they said something different, they still know what they meant, 
which is the exact opposite of what they said. It seems to me we should 
go back and look at what the founders said.
  Madison wrote the Constitution. I think he had a little understanding 
about what he meant. If he said something, then it ought to be pretty 
good support to say: You know, he might have meant what he said. He 
said it. He said that an act of flag defacement in the streets of 
Philadelphia was a violation of law.
  In 1807, when a British ship fired upon and ordered the lowering of 
an American ship's flag, Madison told the British Ambassador that ``the 
attack on the [ship] was a . . . flagrant insult to the flag and the 
sovereignty of the United States.''
  As the author of the first amendment, Madison knew what freedom of 
speech was. However, his repeated stands for the integrity of the flag 
show that he believed that there had been no intent to withdraw the 
traditional physical protection from the flag.
  Thomas Jefferson also believed in the sovereignty and the integrity 
of the flag. While he was Washington's Secretary of State, there were 
many foreign wars and naval blockades. The American flag was a neutral 
flag during this time, and other countries wanted to fly it. Jefferson 
instructed American consuls to punish ``usurpation of our flag.''
  To prevent the invasion of the sovereignty of the flag, Jefferson did 
not think that the first amendment was an obstacle to a ``systematic 
and severe'' punishment for people who violated the flag.
  Both Madison and Jefferson considered protecting the flag and 
punishing its abusers very important.
  There are all kinds of examples in American history from our greatest 
founders, and all kinds of resources to draw from in support of this 
amendment. They believed that sovereign treatment for the flag was not 
inconsistent with protecting free speech.
  They consistently demonstrated that they wanted to protect commerce, 
citizenship, and neutrality rights through the protection of the flag. 
They did not mean to suppress ideas or views or free speech. That was 
not what they were about. They just wanted to protect the Government's 
interests in protecting the sovereignty of the Nation as personified in 
the flag. Freedom of speech protects that, not conduct. There is a 
difference.
  William Rehnquist said:

       The uniquely deep awe and respect for our flag felt by 
     virtually all of us are bundled off under the rubric of 
     ``designated symbols'' that the First Amendment prohibits the 
     government from ``establishing.'' But the government has not 
     ``established'' this feeling; 200 years of history have done 
     that. The government is simply recognizing as a fact the 
     profound regard for the American flag created by that history 
     when it enacts statutes prohibiting the disrespectful public 
     burning of the flag.

  We have seen the Supreme Court defy the ``deep awe and respect'' that 
the American people, through their elected representatives, have for 
that flag.
  The Supreme Court further denied the American people any voice in 
protecting the integrity of the flag in the RAV v. City of St. Paul 
case in 1992. In that decision, the Court ruled it will no longer 
balance society's interest in protecting the flag against an 
individual's interest in desecrating it.
  The Court's recent decisions have led us down this path. In order to 
preserve the values embodied by our flag, in order to enhance national 
unity, and in order to protect our national sovereignty, we, the 
people's representatives, have to take the first step here to amend the 
Constitution. It is going to be a slow and difficult process, as the 
Founding Fathers intended. They wanted it to be slow and difficult. It 
was not supposed to be easy.
  We should have this debate. We should rise up and take each other on 
directly. We should have a vote, and we should be recorded. If it 
prevails with the 67 votes necessary, it will move forward for the 
people and the legislatures. It is a necessary process in order to 
remove the Government's seal of approval of flag burning and 
desecration.
  Mr. President, I suggest the absence of a quorum and ask unanimous 
consent that the time be equally deducted from both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SMITH of New Hampshire. Mr. President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH of New Hampshire. Mr. President, how much time remains on 
both sides?
  The PRESIDING OFFICER. The Senator from New Hampshire has 25 minutes 
remaining, and the Senator from Kentucky has 20 minutes remaining.

[[Page S1718]]

  Mr. SMITH of New Hampshire. I thank the Chair and yield myself 15 
minutes.
  Turning to the substance of the McConnell amendment, I find that it 
fails to protect the flag or the people who revere it. This is a very 
narrow proposal. In order to be prosecuted under the statute Senator 
McConnell has proposed, one must: No. 1, intentionally destroy or 
damage the flag with an intent to incite or produce imminent violence 
or breach of the peace; No. 2, one must steal and intentionally destroy 
a flag belonging to the United States; or, No. 3, one must steal or 
intentionally destroy someone else's flag on Federal property.
  Now if you come to the conclusion that I have--and I think we all 
have on both sides--that flag desecration is wrong, why limit the 
desecration to those instances I just cited? Why make it legal to burn 
a flag in front of a crowd that loves flag desecration or on television 
or at some safe distance and yet make it illegal to burn a flag in 
front of people who would be upset? That is what is happening here.
  Let me repeat that. Why make it legal to burn a flag in front of a 
crowd that loves flag desecration and yet make it illegal to burn a 
flag in front of people who would be upset? That is pretty much what we 
have here. Why make it illegal to burn a post office flag but not a 
flag belonging to the hospital across the street? Why make it illegal 
for a lone camper to burn a flag at a campfire in Yellowstone Park when 
it is legal to burn a flag before hundreds of children at a public 
school? To anybody who is interested in protecting the flag from 
desecration, how does this make sense? It is not common sense.
  There are other problems with this statute as proposed. First, the 
Supreme Court is likely to hold that the amendment's attempt to 
prohibit flag burning that may breach the peace is unconstitutional. In 
Texas v. Johnson, the State of Texas defended its flag desecration 
statute on the ground that it was necessary to prevent breaches of the 
peace, and the Court rejected the argument because there was no showing 
that a disturbance of the peace was a likely response to Johnson's 
conduct regardless of Johnson's intent. So in order to qualify for the 
breach of the peace exception under Brandenberg v. Ohio, the Court said 
the flag burning must both be directed to inciting or protecting 
imminent lawless action and is likely to incite or produce such action.

  Since the McConnell amendment fails to require any showing that the 
destruction of a flag objectively is likely to incite or produce the 
breach of peace, the Court will strike it down as unconstitutional. 
This is a lot of legalese--legal gobbledygook, I might call it. This is 
what the lawyers like to do. But this is more than a legal issue. Your 
speech cannot be suppressed because it might breach the peace, even if 
you believe you are breaching the peace. You must have both intent and 
the objective likelihood that others nearby will be compelled to 
violent action because of your speech.
  So in this regard, I note that the Court, in Johnson, found that the 
flag burning did not threaten to breach the peace, nor was there any 
finding that Johnson intended to breach the peace. The Court also found 
that no reasonable onlooker would have considered the flag burning to 
be an invitation to a fight. In other words, the Court held that flag 
burning did not constitute fighting words. As a result, the McConnell 
amendment would not even apply to the flag burning in Johnson.
  Even if the McConnell statute satisfied the breach of peace exception 
to the first amendment, the other sections of the proposed statute 
wouldn't. The Johnson and Eichman cases seem to require that the same 
general analysis apply. Could the Government say that all racist 
fighting words are illegal on Government property but that others are 
not in some other location? Of course not. The Court has said that this 
amounts to impermissible content-based discrimination. But that is the 
effect of the amendment Senator McConnell offers because it only 
criminalizes stealing and destroying a flag rather than all Government 
property and because it only criminalizes the burning of a flag stolen 
from another on Government property rather than all other property that 
could be stolen and destroyed. A lot of legal language, but it is 
important because this is what we would be dealing with if the statute 
Senator McConnell proposes were to pass as opposed to the amendment.
  Even if these portions of the McConnell amendment could survive 
constitutional scrutiny, which I doubt they could, they are no 
substitute for real flag protection. The McConnell statute would not 
have punished Gregory Johnson's notorious flag burning. When he took it 
down from that pole, burned it, and spat on it, he didn't steal the 
flag from the United States; so he wouldn't be punished. It was stolen 
from a bank building; therefore the statute would not apply. Johnson 
didn't burn his stolen flag on Federal property; he burned it in front 
of city hall; therefore the bill would not apply. If the amendment 
would not punish Johnson, who would it punish? We need to be 
reasonable. We would look foolish to take this kind of legalistic 
approach rather than the substance of what Madison and Jefferson and 
Washington and so many others so eloquently put many years ago when 
they wrote this Constitution.

  Now, some say it is better than an amendment because they want to 
preserve the first amendment rights. But if we are going to punish flag 
destruction on Federal property during a political rally, if we are 
going to say that is not an infringement of free speech when the flag 
is stolen, then why does the first amendment protect desecrating the 
flag under the same circumstance?
  The ownership of the flag is not relevant to the first amendment 
analysis. It is not the ownership of the flag that matters, it is the 
flag. It is what it symbolizes. It is the act that matters. It seems to 
me that the statute by my friend from Kentucky is perfectly consistent 
without allowing flag desecration on city or State property regardless 
of whose flag it is. Once you make it a Federal crime to burn a flag, 
you are reaching communicative conduct the Supreme Court says is 
constitutionally protected. If you are prepared to punish flag 
desecration based on the theft of the flag and the location of the 
desecration as consistent with the first amendment, you cannot 
logically argue that punishing the desecration of one's own flag on 
that same property or other property is inconsistent with the first 
amendment.
  I think any Senator who can vote for this statute, frankly, can vote 
for an amendment that authorizes broader protection of our flag. We 
need to stop splitting hairs here and understand what we are talking 
about, understand the incitive act that we are talking about in the 
desecration of that flag and what it means to the fabric and fiber of 
our Nation. While the Federal connection to property may give you 
jurisdiction for a Federal statute, it simply does not change the first 
amendment analysis.
  Why would anyone vote for an ineffective statute? It is a weak way to 
say we don't want an amendment. It is not a good alternative. I would 
almost prefer that you voted no on the basis of it being 
unconstitutional in your mind than to offer this amendment. But 
adoption of the McConnell amendment will amount to the government's 
unintended declaration of open season on all American flags. It says: 
Do what you want to the flag--whatever you want--but don't start a 
riot, whatever you do. Don't steal it from the government; steal it 
from a bank, and whatever you do, don't burn it on government property. 
Otherwise, have a good time, burn away, desecrate away. Pick and choose 
where you want to burn, where you want to desecrate, and you will be 
fine.
  Now, really, does that make sense as an alternative to the amendment? 
We can do better than that. The proposed constitutional amendment 
allows us to do better than that. By giving Congress the power to enact 
a sensible flag protection statute, the flag amendment will allow for 
meaningful flag protection that doesn't make silly, legalistic 
distinctions. So let's have the courage of our convictions to say, yes, 
we need the constitutional amendment because without it, the flag can 
be desecrated, and this will have a harmful affect on our country and 
on its fabric, if you will. Or say, no, we don't need the amendment, it 
will have no impact, it doesn't matter, and let it go at that.
  I urge my colleagues who support protection for the flag to vote no 
on

[[Page S1719]]

the McConnell amendment and to vote yes on the constitutional 
amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Collins). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SMITH of New Hampshire. Madam President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH of New Hampshire. Madam President, how much time do I have 
remaining?
  The PRESIDING OFFICER. The Senator has 5\1/2\ minutes remaining.
  Mr. SMITH of New Hampshire. Madam President, opponents of the 
amendment like to say that America is not facing an epidemic, that we 
have a few acts of flag desecration. Depending on how you want to 
define them, they are usually by some crazy person or some nut, or 
whatever term you want to apply to it, or someone who is demented. But 
I think opponents try to downplay the number of desecration incidents 
that we have in this country. They not only use flawed statistics, but 
I think they also miss the point that numbers don't always tell the 
story, and who is doing it is another issue. I would like to give an 
example.
  I am a former schoolteacher. You are never a former teacher. You are 
always a teacher; once a teacher, always a teacher. I used to try to 
instill in my students the patriotism and respect for the country. I 
taught civics.
  I wonder if you will hear the opponents of our amendment talk about 
what happened a few weeks ago in a town called Somerset, MA. Two 
teenagers--just two--smashed several dozen Civil War-era gravestones, 
toppled several others, and burned and shredded 87 American flags that 
were placed on 60 gravestones in that cemetery--Civil War veterans. 
Sixty stones were toppled or vandalized. One hundred American flags 
marking the graves of war veterans were either stolen, ripped, or 
burned, according to the Boston Herald.
  Opponents who argue that no great and extraordinary occasions justify 
the proposed amendment are simply off the mark, in my view. Eighty-
seven burnt flags, particularly flags honoring heroes who made the 
supreme sacrifice defending the Union in the Civil War, is a great and 
extraordinary occasion.
  Regardless of how we count the number of desecration incidents, the 
point of our discussion today is not statistics. It is not how many but 
rather the impact that this kind of incident has on our values, on our 
culture, and on our children. What do we say to those children who did 
that? What do we say to the children who didn't do it, the vast 
majority of children, I might add? What do our children learn by 
hearing that our Government is powerless to punish those vandals? What 
do we want to teach our children about that incident? We can remain 
silent. It didn't happen on Government property, unless it was a VA 
cemetery. Maybe it was. So we couldn't punish them under the statute 
being proposed.
  If we don't have a constitutional amendment, maybe we can figure out 
some other way to punish them. But it is more than punishment of the 
vandals that is at stake. It is a message to the rest of America why 
this is wrong and why it is not right to go in there and desecrate 
those flags and those graves.
  Many people today--I am not alone--believe we live in a culture that 
suffers profoundly from a lack of common values, ideals, morals, and 
patriotism. Further, many people believe if it continues, that, in and 
of itself, will destroy the constitutional Government that we have.
  I will make this suggestion with all due respect. That kind of action 
and that kind of lack of statement or commitment to values will bring 
our country down a lot sooner than an amendment to the Constitution 
that prevents the desecration of our flag.
  My colleagues, an amendment doesn't mean the end of our 
constitutional Republic. It reinforces. It says this Senate, this 
country, this Congress, the people of America, the legislatures, your 
parents, their parents, and people all across America say: You don't do 
that. It is wrong. It can mean that our country may not survive with 
this kind of disrespect.
  The idea that everyone's viewpoint is just as good as anyone's can 
grow just a little bit too large. Is that free speech? Is that what we 
want to say in America, that it is free speech for two young people to 
go into a cemetery where Civil War veterans are buried, take the flags 
off their graves, desecrate the flags, and desecrate the tombstones, 
and say it is OK, free speech? I say that is conduct. I don't think it 
has one thing to do with speech. It is conduct, and it is conduct for 
which you should be held accountable.
  The fact is, the founders of our country developed some ideas about 
government that all Americans believe are the best, that all Americans 
find some common ground upon the ideals for which this Nation was 
founded--common ground, cement, glue--to bring us together. This 
divides us in a way that goes right to the essence and to the heart of 
what our country stands for and what it is. Our flag, those flags, 87 
of them on those graves, represent those ideals.
  As much as our culture downplays our common beliefs--God knows we 
hear enough about it--everybody has a right to be a free spirit these 
days; don't have anything in common; do what you want; instant 
gratification; you want to go desecrate a cemetery, go ahead; it is 
just free speech.
  As much as our culture downplays those beliefs, it is our duty as 
Americans--I am using the word ``duty''--to protect those beliefs and 
our duty to protect the one symbol that unites us. If you don't think 
desecration of that flag threatens us, then maybe you had better take 
another look.
  It is our responsibility to ensure the integrity of our country and 
to say that there is at least one principle that unites our society. We 
divide on every issue. You name it; we divide on it. There is somebody 
for and somebody against everything we debate.
  We need this amendment to say that our flag should be protected under 
the law. It is not enough to say if somebody walked up here now--a 
staff member, anyone--and took that flag, threw it on the floor and 
began to deface it, stomp on it, in the name of free speech that is OK. 
It is not speech. I will say again. It is not speech. It is conduct, 
and conduct you should be responsible for and responsible to someone 
for doing it. If we can't say that, if it is a threat to our 
constitutional Republic to have an amendment that precludes that 
action, then I am not sure what we could have a constitution for that 
really matters.

  We have survived amendments that weren't that great. The Constitution 
survived, the people survived, the American Government survived, 
because the Founders gave us the opportunity, provided that for us in 
the Constitution.
  We see evidence of moral decay and a lack of standards all around. 
Our families are breaking down, our communities are divided, our 
leaders are not providing appropriate moral leadership for the American 
public. Everyone knows what I am talking about--moral leadership comes 
from the White House. You can shake it off, you can say it doesn't 
matter, there is no personal accountability, say whatever you want. The 
bottom line is, if you are going out for the weekend and you want to 
leave your 14-year-old daughter home, most of you say: I don't know if 
I want to leave her with the President of the United States. That is 
pretty sad.
  I will make people angry saying that, but we are dividing ourselves. 
We have to stand for something. If we stand for something, we will 
stand up and be counted as a nation. If we don't stand for something, 
then we stand for nothing.
  We can laugh it off. We do it all the time. It is a gun's fault that 
children are dying. No, it is not the gun's fault the children are 
dying. The culture of death in this country is not about guns.
  The desecration of the flag and all of the other things happening is 
about us as a people. It is because we don't stand up often enough. If 
we are threatened because we want an amendment to the Constitution to 
stop that, then we have a problem. We have moral decay in this country. 
We are falling apart at the seams because people should be able to do 
what they want. There is no personal accountability.

[[Page S1720]]

 Desecrate the graves, stomp the flag, disrespect the veteran. It is 
OK. Spit on the flag. That is OK, it is free speech.
  Look at our culture. If you are a parent, look at movies to which 
your kids have access. Look the at video games, look at the music, look 
at the TV. Our children are bombarded every day with messages of 
violence, selfishness. The incidence of gun violence, particularly at 
our public schools, is a predictable result of a culture that is afraid 
to teach that certain ideas are right and certain ideas are wrong.
  That is what this is about. It is wrong to desecrate the flag. Color 
it up any way you want, hide it any way you want, take another position 
and say the law is OK, I don't care. The point is, it is wrong to 
desecrate the flag for the same reason it is wrong to overturn 
gravestones, it is wrong to be disrespectful to veterans, and it is 
wrong to leave your children alone and give them access to this kind of 
violence. Frankly, it is wrong for some in society to give them access 
to that violence.
  Why don't we do something about it? No, we have a right, they say, to 
be free spirits.
  Blame somebody else. It is not our fault. It must be the Government's 
fault, the church's fault, our minister's fault, the Senator's fault; 
it has to be somebody else's fault, not mine. It couldn't possibly be 
my fault; I didn't do anything.
  Do you see what is happening to this country? This is just a perfect 
example of it. It is one symbol of what is wrong with America.
  From the 1800s and the 1900s, wave after wave after wave of 
immigrants came to this country; they built this country. It was the 
glue. They saw the Statue of Liberty. They became a part of the essence 
of America. That flag is the essence of America. We ought to pass a 
constitutional amendment so it not be desecrated.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. How much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 10 minutes remaining.
  Mr. McCONNELL. I yield whatever time the Senator from North Dakota 
may desire.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. CONRAD. I thank the Chair. I thank Senator McConnell.
  Madam President, I rise today to support the McConnell-Bennett-
Dorgan-Conrad effort to pass a statute to protect the flag, rather than 
to amend the Constitution of the United States for that purpose.
  It seems to me that anybody who advances an amendment to the 
Constitution has to clear a very high threshold. I personally believe 
the Constitution of the United States is one of the greatest documents 
in human history. It is not to be amended lightly. It is certainly not 
to be amended when there are other ways of addressing a problem.
  I believe in this circumstance the issue is really quite clear. Flag 
burning and flag desecration are unacceptable to me and I think 
unacceptable to a majority of Americans, certainly unacceptable to the 
people of the State that I represent. But the first answer cannot and 
should not be to amend the Constitution of the United States.
  In our history, more than 10,000 amendments to the Constitution have 
been proposed. Only 27 have been approved. Since I have been in the 
Senate, more than 850 constitutional amendments have been offered. 
Thank goodness we have not adopted them. Many of them would have made 
that document worse. Many of them would have taken positions that are 
really things that ought to be done by statute.
  The Constitution is a framework. It does not deal with specifics. It 
deals with the larger framework of how this Government should operate. 
Individual laws, individual statutes are meant to deal with the 
specific problems that we encounter as a society within the framework 
provided by the Constitution. Some would have us change that basic 
organic document to deal with this problem. I believe that would be a 
mistake, and we would look back on it in future years and say: My, that 
was an overreaction.
  Yes, it is unacceptable to engage in flag desecration. Yes, it is 
abhorrent to desecrate the flag. Those are obviously true statements 
and those are genuine feelings. But we have an alternative. The 
alternative is to pass a statute.
  The proponents of the constitutional amendment will say to you: But 
that will be ruled unconstitutional, as has the previous attempt to 
pass a statute.
  This statute has not been ruled unconstitutional, and the American 
Law Division of the Library of Congress tells us it would be upheld as 
constitutional.
  I ask unanimous consent that the letter from the American Law 
Division addressed to me 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, November 8, 1995.
     To: Honorable Kent Conrad Attention: Dan Kelly
     From: American Law Division
     Subject: Analysis of S. 1335, the Flag Protection and Free 
         Speech Act of 1995
       This memorandum is furnished in response to your request 
     for an analysis of the constitutionality of S. 1335, the Flag 
     Protection and Free Speech Act of 1995. This bill would amend 
     18 U.S.C. Sec. 700 to criminalize the destruction or damage 
     of a United States flag under three circumstances. First, 
     subsection (a) of the new Sec. 700 would penalize such 
     conduct when the person engaging in it does so with the 
     primary purpose and intent to incite or produce imminent 
     violence or a breach of the peace and in circumstances where 
     the person knows it is reasonably likely to produce imminent 
     violence or a breach of the peace.
       Second, subsection (b) would punish any person who steals 
     or knowingly converts to his or her use, or to the use of 
     another, a United States flag belonging to the United States 
     and who intentionally destroys or damages that flag. Third, 
     subsection (c) punishes any person who, within any lands 
     reserved for the use of the United States or under the 
     exclusive or concurrent jurisdiction of the United States, 
     steals or knowingly converts to his or her use, or to the use 
     of another, a flag of the United States belonging to another 
     person and who intentionally destroys or damages that flag.
       The bill appears intended to offer protection for the flag 
     of the United States in circumstances under which statutory 
     protection may still be afforded after the decisions of the 
     Supreme Court in United States v. Eichman \1\ and Texas v. 
     Johnson.\2\ These cases had established the principles that 
     flag desecration or burning, in a political protest context, 
     is expressive conduct if committed to ``send a message;'' 
     that the Court would review limits on this conduct with 
     exacting scrutiny; and legislation that proposed to penalize 
     the conduct in order to silence the message or out of 
     disagreement with the message violates the First Amendment 
     speech clause.
---------------------------------------------------------------------------
     Footnotes at end of analysis.
---------------------------------------------------------------------------
       Subsections (b) and (c) appear to present no constitutional 
     difficulties, based on judicial precedents, either facially 
     or as applied. These subsections are restatements of other 
     general criminal prohibitions with specific focus on the 
     flag.\3\ The Court has been plain that one may be prohibited 
     from exercising expressive conduct or symbolic speech with or 
     upon the converted property of others or by trespass upon the 
     property of another.\4\ The subsections are directed 
     precisely to the theft or conversion of a flag belonging to 
     someone else, the government or a private party, and the 
     destruction of or damage to that flag.
       Almost as evident from the Supreme Court's precedents, 
     subsection (a) is quite likely to pass constitutional muster. 
     The provision's language is drawn from the ``fighting words'' 
     doctrine of Chaplinsky v. New Hampshire.\5\ In that case the 
     Court defined a variety of expression that was unprotected by 
     the First Amendment, among the categories being speech that 
     inflicts injury or tends to incite immediate violence.\6\ 
     While the Court over the years has modified the other 
     categories listed in Chaplinsky, it has not departed from the 
     holding that the ``fighting words'' exception continues to 
     exist. It has, of course, laid down some governing 
     principles, which are reflected in the subsection's language. 
     Thus, the Court has applied to ``fighting words'' the 
     principle of Brandenburg v. Ohio,\7\ under which speech 
     advocating unlawful action may be punished only if it is 
     directed to inciting or producing imminent lawless action and 
     is likely to incite or produce such action.\8\
       A second principle, enunciated in an opinion demonstrating 
     this continuing vitality of the ``fighting words'' doctrine, 
     is that it is impermissible to punish only those ``fighting 
     words'' of which government disapproves. Government may not 
     distinguish between classes of ``fighting words'' on an 
     ideological basis.\9\

[[Page S1721]]

       Subsection (a) reflects both these principles. It requires 
     not only that the conduct be reasonably likely to produce 
     imminent violence or breach of the peace, but that the person 
     intend to bring about imminent violence or breach of the 
     peace. Further, nothing in the subsection draws a distinction 
     between approved or disapproved expression that is 
     communicated by the action committed with or on the flag.
       There is a question which should be noted concerning this 
     subsection. There is no express limitation of the application 
     of the provision to acts on lands under Federal jurisdiction, 
     neither is there any specific connection to flags or persons 
     that have been in interstate commerce. Therefore, application 
     of this provision to actions which do not have either of 
     these, or some other Federal nexus, might well be found to be 
     beyond the power of Congress under the decision of the Court 
     in United States v. Lopez.\10\
       In conclusion, the judicial precedents establish that the 
     bill, if enacted, while not reversing Johnson, and Eichman, 
     should survive constitutional attack on First Amendment 
     grounds. Subsections (b) and (c) are more securely grounded 
     in constitutional law, but subsection (a) is only a little 
     less anchored in decisional law.
       We hope this information is responsive to your request. If 
     we may be of further assistance, please call.

                                               John R. Luckey,

                                             Legislative Attorney,
                                            American Law Division.


                               footnotes

     \1\ 496 U.S. 310 (1990).
     \2\ 491 U.S. 397 (1989).
     \3\ See, 18 U.S. Sec. Sec. 641, 661, and 1361.
     \4\ Eichman, supra, 496 U.S., 316 n. 5; Johnson, supra, 412 
     n. 8; Spence v. Washington, 418 U.S. 405, 408-409 (1974). See 
     also R. A. V. v. City of St. Paul, 112 S. Ct. 2538 (1992) 
     (cross burning on another's property).
     \5\ 315 U.S. 568 (1942).
     \6\ Id., at 572.
     \7\ 395 U.S. 444 (1969).
     \8\ Id., at 447. This development is spelled out in Cohen v. 
     California, 403 U.S. 15, 20, 22-23 (1971). See, also NAACP v. 
     Claiborne Hardware Co., 458 U.S. 886, 928 (1982); Hess v. 
     Indiana, 414 U.S. 105 (1973).
     \9\ R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).
     \10\ 115 S. Ct. 1624 (1995).

  Mr. CONRAD. Madam President, here we have the American Law Division 
of the Library of Congress, which houses the Congressional Research 
Service, telling us this statute authored by Senator McConnell would be 
upheld as constitutional. That is the best advice we have available to 
us as Members of Congress. They are saying to us this statute would be 
upheld.
  Why ever would we go out and amend the Constitution when we have a 
statute that our own legal advisers inform us would be upheld as 
Constitutional. Why would we do that? It makes no sense to me. Not only 
does it make no sense to me, it makes no sense to veterans 
organizations. I ask unanimous consent that resolutions of support by 
veterans organizations in the State of North Dakota be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. CONRAD. Madam President, these are resolutions in support of the 
Flag Protection Act of 1999 by AMVETS of North Dakota, by the AMVETS 
Ladies Auxiliary of North Dakota, and by the North Dakota State Council 
of the Vietnam Veterans of America. All of these veterans 
organizations, some of the finest in my State, have said this is the 
proper approach; that we ought to attempt to pass this statute rather 
than amend the Constitution of the United States.
  I just got word, moments ago, that the editor of the 164th Infantry 
Association Newsletter, of my State, has contacted my office and agrees 
with the position that I am taking, that it is not necessary to amend 
the Constitution of the United States.
  I think he is exactly right. I would just conclude by saying, not 
only do veterans organizations back home support the position I am 
taking, but many who are in the American Legion have contacted me and 
told me they support the position that I am taking.
  Finally, Gen. Colin Powell was quoted at length in a full page ad of 
a major newspaper in my State today as saying that he does not believe 
that the appropriate response is to amend the Constitution of the 
United States. Gen. Colin Powell, former Chairman of the Joint Chiefs 
of Staff, the man who led us in Desert Storm, a man for whom I have 
profound respect, saying to us, yes, it is abhorrent to desecrate the 
flag, yes, it is abhorrent to burn the flag, but that flag is going to 
survive long after, as he describes it, these miscreants who desecrate 
the flag are long gone. Long after they are gone, that flag is still 
going to be flying proudly over this great Nation.
  One of the reasons this is a great Nation is because of the 
Constitution of the United States. What a brilliant document. I doubt 
very much anything we are going to be doing in the next 2 days would 
improve upon that Constitution that is the organic law for our country.
  I urge my colleagues to take a look--take a serious look --at the 
work Senator McConnell has done and that the four of us, on a 
bipartisan basis, are offering our colleagues as an alternative to 
taking the very drastic step of amending the Constitution of the United 
States.
  I hope my colleagues will support this approach.
  I commend my colleagues who have joined in offering this--with a 
special thanks to Senator McConnell, who has drafted this approach--
Senator Bennett, and Senator Dorgan.
  I believe this is the wiser course. It is the right course. It is one 
that will stand the test of time.
  I thank the Chair and yield the floor.

                               Exhibit 1

  AMVETS Ladies Auxiliary, Department of North Dakota, Resolution To 
              Support the ``Flag Protection Act of 1999''

       Whereas: the delegates of the 15th Annual Convention of the 
     AMVETS Ladies Auxiliary, Department of North Dakota, 
     assembled in Minot on this 15th day of May, 1999, desire to 
     support Senator Dorgan and Senator Conrad on ``The Flag 
     Protection Act of 1999'' which they are co-sponsoring, 
     therefore be it
       Resolved: We support the ``Flag Protection Act of 1999'' 
     for the protection of the flag, free speech, and other 
     purposes, to ensure our symbol of national pride and freedom 
     be protected, that the embodiment of our democracy and unity 
     be preserved, especially since our veterans fought for this 
     freedom, it further be
       Resolved: That a copy of this courtesy resolution be spread 
     upon the records of this annual convention and a copy be 
     presented to the above mentioned.
     Angie Lekander,
       President.
     Vickie Trimmer,
       Secretary.
                                  ____

                                      Vietnam Veterans of America,


                                   North Dakota State Council,

                                       Bismarck, ND, May 10, 1999.
     Hon. Kent Conrad,
     U.S. Senator, Hart Office Building, Washington, DC.
       Dear Senator Conrad: On behalf of the North Dakota State 
     Council of Vietnam Veterans of America, it is my honor to 
     inform you that at our quarterly meeting on May 8, 1999 in 
     Bismarck, the following action was taken regarding the Flag 
     Protection Act of 1999, which you are cosponsoring.
       ``Bob Hanson moved that the North Dakota State Council of 
     the Vietnam Veterans of America support enactment of 
     legislation by Congress to protect the nation's flag, such as 
     that cosponsored by Senators Byron Dorgan and Kent Conrad and 
     that a copy of this resolution be forwarded to our state's 
     entire Congressional delegation. Seconded by Richard Stark. 
     Approved unanimously.''
       Thank you for continual support of veterans and we wish you 
     success in your endeavors in this matter.
           Sincerely,
                                                       Bob Hanson,
     State Secretary, ND VVA.
                                  ____


Resolution No. 9911--A Resolution To Support the ``Flag Protection Act 
                               of 1999''

       Whereas, a Constitutional amendment to protect the 
     desecration of the American flag has been before Congress for 
     several years and has failed to garner the votes for passage, 
     and
       Whereas, those opposed to the Constitutional amendment 
     believe that a statute can effectively provide protection and 
     be upheld by the Supreme Court, and
       Whereas, Senator Mitch McConnell of Kentucky has introduced 
     a statute, ``The Flag Protection Act of 1999'', cosponsored 
     by Senator Kent Conrad of North Dakota, Senator Byron Dorgan 
     of North Dakota, and Senator Bennett of Utah, and have been 
     assured by the Congressional Research Service and 
     constitutional scholars that it would be upheld by the 
     courts, and
       Whereas, the AMVETS of North Dakota have consistently 
     supported a statutory remedy over a Constitutional amendment 
     at our annual conventions, now therefore be it
       Resolved, that the AMVETS of North Dakota express 
     appreciation to Senators McConnell, Conrad, Dorgan and 
     Bennett and further supports the Flag Protection Act of 1999 
     and urge the National Department to also support the Flag 
     Protection Act of 1999.

       Submitted for consideration at the Department Convention by 
     the Department Commander.
                                              Randall A. LeKander,
                                                        Commander.
       Adopted as amended by AMVETS Department of North Dakota in 
     convention at Minot this 16th day of May, 1999.

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. I thank the distinguished Senator from North Dakota 
for his outstanding remarks in support of

[[Page S1722]]

the effort we have, on a bipartisan basis, put together to try to deal 
with the flag desecration problem through statute rather than by 
amending the first amendment to the United States Constitution for the 
first time in its 200-year history. It has been a pleasure working with 
the distinguished Senator from North Dakota. I thank him for his 
support.
  We hope all of our colleagues will take a look at a different 
approach to this problem when the vote occurs tomorrow afternoon.
  Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 30 seconds.
  Mr. McCONNELL. I yield it back.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I believe we are now about to move to the Hollings 
amendment. Is that the next agenda item?
  The PRESIDING OFFICER. The Senator from West Virginia, Mr. Byrd, 
still controls 30 minutes of time which, under the previous order, was 
to occur prior to moving to the Hollings amendment.
  Mr. SESSIONS. Are there 2 hours equally divided on the Hollings 
amendment?
  Mr. HOLLINGS. Madam President, I understand that the Senator from 
West Virginia is not going to use that 30 minutes. So I am authorized 
to yield back that time. I yield back Senator Byrd's 30 minutes.
  The PRESIDING OFFICER. All time has been yielded back.
  Under the previous order, the Senator from South Carolina is to be 
recognized to offer a first-degree amendment. Under the previous order, 
there shall be 4 hours of debate on the amendment, equally divided, 
with one of the 4 hours to be under the control of the Senator from 
Arizona, Mr. McCain.
  Mr. SESSIONS. I am prepared to yield the floor to the Senator from 
South Carolina and ask unanimous consent that I be allowed to have 30 
minutes on this subject.
  The PRESIDING OFFICER. Is there objection?
  Mr. HOLLINGS. Thirty minutes when?
  Mr. SESSIONS. Whenever.
  The PRESIDING OFFICER. Out of the 2 hours that has been set aside?
  Mr. SESSIONS. In the next hour.
  The PRESIDING OFFICER. Following Senator Hollings?
  Mr. SESSIONS. Yes. If we can finish in 1 hour.
  Mr. HOLLINGS. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from South Carolina.


                           Amendment No. 2890

  (Purpose: To propose an amendment to the Constitution of the United 
 States relating to contributions and expenditures intended to affect 
                               elections)

  Mr. HOLLINGS. Madam President, has the amendment been reported?
  The PRESIDING OFFICER. The amendment is at the desk.
  Mr. HOLLINGS. I ask that the clerk report the amendment.
  The legislative clerk read as follows:

       The Senator from South Carolina [Mr. Hollings], for 
     himself, Mr. Specter, and Mr. Reid, proposes an amendment 
     numbered 2890.

  Mr. HOLLINGS. 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:

       On page 2, line 4, strike beginning with ``article'' 
     through line 10 and insert the following: ``articles are 
     proposed as amendments to the Constitution of the United 
     States, either or both of 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 7 
     years after the date of submission for ratification:''.

                             `` `Article --

       `` `Section 1. Congress shall have power to set reasonable 
     limits on the amount of contributions that may be accepted, 
     and the amount of expenditures that may be made by, in 
     support of, or in opposition to, a candidate for nomination 
     for election to, or for election to, Federal office.
       `` `Section 2. A State shall have power to set reasonable 
     limits on the amount of contributions that may be accepted 
     by, and the amount of expenditures that may be made by, in 
     support of, or in opposition to, a candidate for nomination 
     for election to, or for election to, State or local office.
       `` `Section 3. Congress shall have power to implement and 
     enforce this article by appropriate legislation.

                            ```Article--''.

  Mr. HOLLINGS. Madam President, this amendment is offered on behalf of 
myself, the distinguished Senator from Pennsylvania, Mr. Specter, and 
the distinguished Senator from Nevada, Mr. Reid.
  Let me go right to the heart of some comments just made because I 
want to emphasize what the distinguished Senator from North Dakota 
said.
  One, with respect to the matter of actually passing a statute whereby 
the statute would suffice, I only refer specifically, because I have 
been reading it at length, to the decision of the U.S. Supreme Court in 
Nixon v. Shrink, that for nearly a half century the Court has extended 
first amendment protection to a multitude of forms of speech, such as 
making false inflammatory statements, filing lawsuits, dancing nude, 
exhibiting drive-in movies with nudity, burning flags, and wearing 
military uniforms. It goes on to cite even more examples.
  That is why this Senator would not vote for the statute. I think that 
is dancing around the fire and a putoff. On the contrary, I intend to 
support the constitutional amendment. But I do agree with the 
observation of the distinguished Senator from North Dakota that the 
Constitution should not be amended lightly, and, as the Senator stated, 
not amended when there are other ways.
  There is a definite difference between the matter of burning the 
flag--there is really no threat to the Republic. There is no threat to 
our democracy. There is no corruption. I do not like it; others do not 
like it. I hope we can pass the amendment.
  But there is basis for the concern that a constitutional amendment is 
not in order because there is no threat to the Republic. We have seen 
and, unfortunately, been hardened in a sense to observing the flag 
being burned. I happen to be like the man: Convinced against his will 
is of the same opinion still. They can keep on saying that is 
constitutional. I do not believe it.
  I think an amendment to the Constitution is necessary. But only look 
around us. Where is everybody? Out raising money. The Senator from 
South Carolina is not charging that an individual is bribed. I know of 
no bribes. That is not my argument.
  My argument and position is that this Congress, the process, and the 
Government have been corrupted by the money chase. We all know the 
amount of money. But all you have to do is have been around here for 
30-some years and you get the feel, very definitely, that the money 
chase has taken over and we are thoroughly corrupted.
  I say that because here it is Monday. It is really a wash day. There 
are no votes. There is nobody here to hear you. This is no deliberative 
body. That is really a nasty joke on all of us because we do not 
deliberate anymore. I remember over 30 years ago when we would come in 
on Monday morning and work all day, have votes at 9 o'clock on Monday 
morning, go throughout Tuesday, Wednesday, Thursday, Friday, and hope 
to get through by 5 on Friday and take Saturday and Sunday off and go 
back to work on Monday. But we start the week here with no votes, 
nobody around, no deliberation, no exchange of ideas, no legislation, 
just a sort of fill-in so you can give those who are concerned their 
time at bat, limited as it is, because it is only half time. Nobody is 
here to listen, so you can learn the fallacy in your arguments or the 
substance thereof. But there is no really good exchange out here by the 
Members themselves. Monday is gone, and Tuesday morning follows suit 
because we have to wait for everybody to get back from their Monday 
evening fundraisers. Then we have Tuesday afternoon, Wednesday, 
Thursday, and Friday is gone.

  If you don't think it is corrupted, go up and ask the majority 
leader, if you please, to take up a bill. ``Oh'', he says, ``wait a 
minute, that might take 3 or 4 days.'' It's a given, that you are not 
going to call a bill that is going to take 3 or 4 days of consideration 
and debate by colleagues. It is not going to be called. Nothing is 
called unless the jury is fixed.
  Why haven't we taken up the budget? Because they haven't been able to 
fix the vote of the Senator from Texas. They fixed all the others. They 
got them in line. I don't know what their budget is. There has been 
give and take

[[Page S1723]]

among the members on the Budget Committee on the Republican side, but 
we on the Democratic side have yet to see a budget, even though it is 
the end of March. We are supposed to have had the markup for several 
weeks and be ready to report it out by this weekend. We do have notice, 
but you can bet your boots if we come together tomorrow afternoon and 
Thursday, they will use Thursday night and the threat of, ``wait a 
minute, you will have to work on Friday, so hurry up, let's vote until 
1 o'clock in the morning,'' whatever it is, because none of your 
amendments is going to pass; we have the votes.
  That is the most deliberative process. That is the corruption the 
money chase has gotten us into. You can't consider anything here. Come 
Tuesday, they say, ``well, we will have a caucus.'' In the main, that 
is about money and how we are going to collect it, and how we will dock 
each other so many thousands of dollars, and who has been to meetings, 
and everything else of that kind. Otherwise, come evening, ``hurry up 
and let's adjourn early because I have a fundraiser Tuesday evening.'' 
Or, on Wednesday we have a window. ``Can we make sure; I have to go all 
the way downtown at lunchtime, so let's not have any real conduct of 
the Senate or work of the Congress because I want a window so we can go 
down and have that fundraiser; or wait until the evening.'' The same 
thing occurs on Thursday.
  By the way, there is a special Wednesday afternoon set up where we 
are supposed to go over to our campaign committees and get on the phone 
for hours in the afternoon. To do what? To call for money. I thought 
when we got elected, the campaign was over and we were going to work 
for the people. Instead, we go to work for ourselves. The entire 
process has been corrupted. That is why we need a constitutional 
amendment.
  No, not likely. We have tried for 25 years to get around Buckley v. 
Valeo. We got a little squeak from Justice Stevens in the Nixon v. 
Shrink decision. He said: Money is property, not speech. But he was 
only one. The rest of the Court, in other words, had every opportunity 
to consider it being property and not speech, but they reiterated Nixon 
v. Shrink, that money is speech. My gracious, if you read that 
dissenting opinion with Scalia and the other two Justices, they read it 
to go with removing the limits on contributions. Just buy it. This 
thing is a real disaster; it is an embarrassment.
  Just coming on the floor, they called my staff and said: Why in the 
world would you want to amend the Constitution here but not with the 
flag? Well, of course, I corrected that. I would amend the Constitution 
with the flag. But those who have some concern about the flag amendment 
to the Constitution need not hesitate with respect to this particular 
amendment. Otherwise, they have been living in a cocoon somewhere, or 
they have been in China during the last campaign, because all you have 
to do is look at the primaries and see that the one thing, whether it 
was Independent, Democratic, Republican or any other kind of votes, 
that they were trying to clean up this system.

  Senator Gore, Vice President Gore, got the message. He said: The 
first thing I will do as President of the United States is introduce 
McCain-Feingold and do away with soft money.
  Governor George W. Bush said that was a terrible thing. I read that 
in the news. But I remembered back to January 23, in his interview with 
George Will, when Governor Bush said soft money, both corporate and 
labor, should be banned. I agree. But I will have to agree with the 
distinguished Senator from Kentucky that it is patently 
unconstitutional according to the Court. All we are trying to do is 
constitutionalize McCain-Feingold or any and every other idea you want, 
whether you want to publicly finance, whether you want to give free TV 
time, whether you want to limit, whether you want to not limit, whether 
you want to increase the limit--whatever you want to do. Don't give me 
the argument on this one because this only constitutionalizes your 
particular idea.
  Let me read exactly what it says:

       Congress shall have the power to set reasonable limits on 
     the amount of contributions that may be accepted by, and the 
     amount of expenditures that may be made by, in support of, or 
     in opposition to, a candidate for nomination for election to, 
     or for the election to, Federal office.

  We have had this up for over 10 years, Senator Specter and myself. I 
have had it up for over 20 years. I can tell you, the States in 
unanimity, the Governors' conference and all, came and said: Please put 
us in. We have the same problem, not just for Federal office but for 
State office. It is costing $1 million to get elected to the city 
council. It has corrupted the entire process over the land, and 
everybody knows it.
  Section 2--this is why we added it--

       A State shall have power to set reasonable limits on the 
     amount of contributions that may be accepted by, and the 
     amount of expenditures that may be made by, in support of, or 
     in opposition to, a candidate for nomination for election to, 
     or for election to, State or local office.

  Of course, Congress is empowered to implement and enforce the article 
by appropriate legislation.
  That is a very simple amendment. You can bet your boots it is far 
more important at this particular hour of our history. The 27th 
amendment has to do with our pay. Well, it is certainly more important 
than the Fed raising his pay because if he votes that way, they are 
going to jump all over him at the next election. So they didn't even 
need this. This was just puffing and blowing and demonstrating and 
flagellating. That is all we have been doing up here this year. We 
figured as long as we could put the people off and sneak back in, we 
could get the money to buy the time to buy the office.
  The 22nd amendment, Presidential term limits. More important than 
that. The 23rd amendment, D.C. electoral votes. This is more 
important--this particular corruption to be corrected. The elimination 
of the poll tax, the 24th amendment, and the 25th amendment, 
Presidential succession. The 26th amendment, giving 18-year-olds the 
right to vote. You have taken away the vote of all the people, not just 
the 18-year-olds.
  I ask unanimous consent that this short article be printed in the 
Record at this point.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Mar. 19, 2000]

                               Pander Gap

                           (By Richard Morin)

       This may be really hard to believe: Neither Congress nor 
     the President panders to public opinion. And they don't craft 
     policy to match the latest poll numbers, either.
       You scoff. But those are the claims of two political 
     scientists who have documented the gap between what Americans 
     say they want and what their politicians deliver. ``We have 
     found a dramatic decline of political responsiveness to the 
     wishes and preferences of the public on major policy 
     decisions in at least the past 20 years,'' assert Lawrence R. 
     Jacobs of the University of Minnesota and Robert Y. Shapiro 
     of Columbia University in their forthcoming book, 
     ``Politicians Don't Pander.''
       The researchers tracked Americans' views on a range of 
     political issues and compared them with the relevant 
     legislation that Congress eventually approved. Twenty years 
     ago, lawmakers did what a majority of Americans wanted about 
     two-thirds of the time, they found. Today, Congress is on the 
     same page with the public only about 40 percent of the time. 
     This growing disconnect, the authors argue, is at the heart 
     of America's mistrust of politicians, government and the 
     political process.
       The reputation that President Clinton has developed for 
     governing by poll isn't accurate, the contend. Certainly, 
     Clinton and other politicians do a lot of polling, but not to 
     make policy; instead, the authors say, the surveys are used 
     to figure out how to sell policies that have already been 
     constructed (much as market researchers convene focus groups 
     and sponsor surveys to find new ways to get you to buy soap).
       Rather than hewing to the demands of voters, the 
     researchers say, today's lawmakers answer to ``the extreme 
     ideological elements of their parties, to their contributors, 
     and to special interests.'' They say the split between 
     politicians and the people accelerated in the 1990s, as 
     Congress became increasingly partisan.
       In their book, Jacobs and Shapiro offer two revealing case 
     studies of how the sausage is really made in Washington. The 
     first was the failed Clinton health care plan; the second was 
     the ``Contract With America,'' led by former House speaker 
     Newt Gingrich. These peeks inside the process included 
     interviews with dozens of policymakers as well as access to 
     reams of memorandums and policy drafts.
       ``Our research showed that public opinion played no role, 
     or [was] secondary at best,'' Jacobs said, `We don't trust 
     public opinion. . . . Constituencies are important to us.' ''
       Remarkably, Jacobs said, Republicans told them ``much the 
     same thing, sometimes using nearly the same words.'' Partisan 
     concerns, special interest pleadings and narrow

[[Page S1724]]

     ideological concerns consistently trumped the vox pop. ``What 
     a majority of Americans really wanted was never a driving 
     factor,'' he said.
       Jacobs says he's not suggesting that politicians should 
     march in lock step with the polls. ``There are times, like 
     Nixon's opening to China, when politicians should disregard 
     public opinion. But it should be part of a larger discussion 
     about why the public will is being ignored. These should be 
     the exceptions.''

  Mr. HOLLINGS. This is entitled ``Pander Gap.'' We are not pandering 
to the people. We have taken away the votes of all the people, not just 
the 18-year-olds. The survey is used to figure out this so-called 
polling. They say we followed the polls. I am quoting this part of it:

       . . . the surveys are used to figure out how to sell 
     policies that have already been constructed (much as market 
     researchers convene focus groups and sponsor surveys to find 
     new ways to get you to buy soap).
       Rather than hewing to the demands of voters . . . today's 
     lawmakers answer to ``the extreme ideological elements of 
     their parties, to their contributors, and to special 
     interests.''

  In short, to money, money, money, millions and millions. The year 
before last I was supposed to run a race in South Carolina on about $3 
million at the most. I had to spend $5.5 million. Since the South has 
gone Republican, it made it more difficult. With two Republican 
Senators from Alabama, two from Mississippi, two from Texas, two from 
Tennessee, it seems everywhere I look, I've got Republicans buzzing 
around me.
  I am not critical because I got a lot of good Republican votes. I am 
grateful for the Republicans who did vote for me. But, in essence, it 
was tough to get those contributions because they didn't want their 
names to appear, and then go to the club and have to explain why in the 
world they contributed to that scoundrel Hollings? They were ready to 
give me the money, but they could not. So I had to travel the land and 
tell my story. I was lucky. They gave me a rather hard-working fellow 
as an opponent who was all over the place. Didn't know what he was 
talking about, about the polls and everything, and trying to take a 
fellow who had been in office almost 50 years, and being arrogant about 
it. You can't be arrogant and get elected seven times to the Senate. I 
can tell you that. You respond to the people, and I happily do so. I am 
responding to the people of this country.
  I am not amending the Constitution lightly. I will yield in a moment 
to give my colleague from Alabama time. Let's hearken back to 1971 and 
1974, the Federal Election Campaign Practices Act. I will never forget 
in the 1968 race, Maurice Stans was running around almost like the 
Chamber of Commerce. He told various businesses: Your fair share is 
this. He came to the textile industry in South Carolina and said it is 
$350,000. This was 30-some years ago. They had never raised $350,000 
for this fellow, and I had done everything in the world for the textile 
industry. They got together 10 of them with $35,000 apiece.
  What happened was individuals gave a million, or $500,000, $2 
million, different amounts in cash. And it so happened that after 
President Nixon had taken office, the Secretary of Treasury, John 
Connolly came to the President and said: Mr. President, a lot of people 
have given you a lot of money. You haven't met them, you haven't shaken 
their hands, you haven't been able to thank them. I think it would be 
in order for you to come down to the ranch. I will put it on at the 
ranch.
  Nixon said: Fine business, that's what we will do.
  A few weeks later, they turned into the ranch. But as they turned 
into the ranch in Texas, there was old Dick Tuck with the Brinks 
truck--you know the prankster from the Kennedy years. My heavens, the 
Government was up for sale. We were all embarrassed, Republican and 
Democrat. We got to the floor and presented the 1974 Campaign Practices 
Act--we said to our friend, the Senator from Massachusetts: You can't 
buy it. We looked over there to the Senator from New York, Mr. Buckley 
and he said: You can't tell me. I am going to buy it. We passed it with 
an overwhelming bipartisan majority. But Senator Buckley then sued the 
Secretary of the Senate and took it all the way to the Supreme Court. 
That is where we got this distortion which causes the corruption. It 
was by one vote, 5-4.

  If you want to raid the erudite decisions on this particular matter, 
read Justice White and Justice Marshall in the dissenting opinion. They 
foresaw this corruption in the process, where we can't get anything 
done, where we have the unmitigated gall to stand up and say: I am 
going to buy this office. Of course, they say: Freedom of speech; 
freedom of speech. Nobody is listening to that. I never thought the day 
would come when they would stand on the floor and proudly say, ``I am 
going to buy the office,'' or a particular party would come and say, 
``We are going to buy the Presidency.'' That is exactly what they have 
done. The Republican Party said: Get out of the way, Steve Forbes, and 
all the rest of you; we are going to get our candidate, Governor Bush 
down in Texas, and we are going to raise him $70 million. He has 
already spent $63 million, and it is only March. We have almost 7 or 8 
months to go before the election. They are not worried about that. We 
just never did think.
  I can see Senator Long of Louisiana. Every mother's son ought to be 
able to run for the Presidency. That is why we have the checkoff on the 
income tax return and the matching funds for those who qualify. We 
thought that was good and plenty. But they spent, by the first of 
March, $63 million, and they will spend another $63 million very 
easily. That crowd has an investment.
  If I were going to run for the Presidency, I would run on one 
particular message: Let the people of America know here and now this 
office is not for sale. That ought to be a fundamental Americanism--
that you can't buy the office.
  Now, we have several in the body who had millions in their campaigns 
and have gotten to the Senate. I will say in the same breath, I look at 
them and their service, and they would have done the same without the 
millions, but they did spend millions to get here. That is the kind of 
body we are turning it into more and more each year. You can't consider 
anything. You can't debate anything. You can't take time to speak to 
your colleagues. It is a veritable money chase. That is exactly why we 
are not doing anything this year. It is the year 2000, the year that 
the U.S. Congress squats and does nothing. There is an old political 
axiom: When in doubt, do nothing, and stay in doubt all the time. That 
reelects a lot of people. That is what we are motivated by on this 
particular afternoon.

  I am going into the details of the amendment again out of necessity 
and will emphasize why we need a constitutional amendment, because we 
have tried it every other way. The Court has found, more and more, free 
speech implications in any and all legislation. Unless we can amend the 
Constitution to extract this cancer and this corruption from the body 
politic, we are goners. I can tell you that democracy is gone.
  I yield the floor. I reserve the remainder of my time.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Alabama is recognized for up to 30 minutes.
  Mr. SESSIONS. Madam President, I always enjoy the remarks of the 
Senator from South Carolina. I am glad he doesn't speak with an accent. 
I can understand him better than most around this body. He is a 
straight shooter and a skilled lawyer who understands what the legal 
system is about and what we are doing in the Senate. I respect that.
  I respect his conclusion, which I believe is legally sound, that most 
of the campaign proposals which have been proposed in recent years run 
afoul of the Constitution, according to a majority of the U.S. Supreme 
Court. That is a fact. I believe that is a good fact.
  Some would say: Well, you want to limit free speech when you want to 
stop burning the flag and you want to prohibit that and that is free 
speech. The Supreme Court, by a 5-4 majority, held that the act of 
burning a flag is free speech. I don't agree with that. In 1971, the 
Supreme Court didn't agree with that. For over 200 years they didn't 
agree with that. Over 40 States have laws against it.
  When it passed this time recently, it was a 5-4 majority. But in my 
view, the flag of the United States is a unique object and prohibiting 
its desecration will not in any way fundamentally alter the free 
expression of ideas in this country. You can speak about why the

[[Page S1725]]

flag ought to be burned and that sort of thing, but we know the act of 
it is different from speech. It seems to me if it is speech, and if the 
Court is correct in saying it is speech, then the people of the United 
States care deeply about protecting the flag. They have an avenue to 
adopt a restricted, narrow constitutional amendment that doesn't in any 
way jeopardize the ability of our people in this country to speak 
freely but would allow States to prohibit the burning of a flag. That 
is what I think we ought to do.
  I think it would be healthy for this country to adopt a 
constitutional amendment that would allow the protection of the flag 
because people on the battlefield have died for that flag. More Medals 
of Honor have been awarded for preserving and fighting to preserve the 
flag than any other. We know the stories of battle when time after time 
the soldier carrying the flag is the target of the enemy. When he fell, 
another one would pick it up. When he fell, another one would pick it 
up. When he fell, another one would pick it up. That is the history.
  We pledge allegiance to the flag, not the Constitution, not the 
Declaration of Independence. We pledge allegiance to the flag because 
it is a unifying event. It is a unifying symbol for America, and having 
a special protection for it is quite logical for me. I do not believe 
we should never amend the Constitution. I do not think we amend the 
Constitution enough. But we want to have good amendments that are 
necessary, that are important, that enrich us, and that make us a 
stronger nation. I support that.
  With regard to the amendment of the Senator from South Carolina, I 
respect his honesty and his direct approach. I think by his amendment 
he recognizes in the most fundamental sense that when you constrain the 
right of people in this country to come together, raise money, and 
speak out on an issue that they care deeply about, you are indeed 
affecting independent thought, free debate, and freedom of speech.
  The Constitution of the United States says Congress shall make no law 
abridging the freedom of speech.

  I am really surprised to look at this amendment. It goes in just the 
opposite way. It says Congress shall have the power to place reasonable 
limits. So right away we are amending the first amendment. We are 
saying Congress shall have the power to place reasonable limits on the 
amount of contributions that may be made and accepted, and the amount 
of expenditures made by and in support of or in opposition to a 
candidate for office in the United States, State and Federal--the two 
clauses of this amendment. We are saying incumbent politicians in this 
body ought to be seeking to encourage laws that would prohibit people 
from gathering together and raising funds and speaking out. The Senator 
said we want a constitutional amendment because it will allow any other 
thing you want to do, whatever you want. He said it will allow that in 
terms of campaign finance. That is a scary thing to me--whatever we 
want.
  What do incumbents want? They want many times to keep down debate. 
They want to keep from the people the errors they may have made, or the 
acts they have carried out with which the people do not agree. Many 
times the only way we can ever know what the truth is, is for people 
who care about those issues to raise money and speak out against it.
  I feel very strongly about this. I think this is a major event. If 
the flag amendment is a 1 on a constitutional scale, this Hollings 
amendment is a 9 or a 10. It is the first time in the history of this 
country I know of where we have submitted a constitutional amendment 
that does not increase our freedom, our liberties, and our ability to 
act and speak as we choose. It will be the first time I know of where 
we are proposing a constitutional amendment that would clearly dampen, 
reduce, and control the free rights of American citizens to speak out 
on issues they care deeply about.
  The Cato Foundation, a conservative think tank, and the ACLU, a 
liberal group, are horrified at the very thought of this.
  This is basic constitutional law. We are talking about restricting 
the right of people to run advertisements during a campaign season to 
say why they care about issues. What more is free speech about?
  Chief Justice Rehnquist, in talking about the flag burning, said, 
``At best, burning a flag is a grunt or a roar.'' It is not really 
speech at all, if you consider it some sort of expression, which I 
think is a stretch. But even then, you consider it inarticulate speech. 
That is not of great value compared to the unifying symbol of the flag.
  But when you talk about taking away the right of American citizens to 
run ads on television, to buy newspapers, to print handbills and pass 
them out, and to say they can't do that; why? Well, you just can't do 
it during an election cycle. When do you want to speak out? What good 
is it if you do not want to do it during an election cycle?
  I do not want to use all the time I have. We have two excellent 
scholars who care deeply about this issue who wanted to speak before I 
got unanimous consent. I don't want to take their time.
  I will just say this before I yield the floor and ask that my time be 
given back to them.
  We do not need to be retreating from freedom. We do not need to be 
retreating from free debate. We do not need to be adopting a 
constitutional amendment that will allow our children and grandchildren 
not to rise up, raise money, and speak out and condemn a group of 
incumbents who they believe are not doing the right thing in America. 
Sometimes that is the only way you can get the message out.
  Frankly, I am not one of those who believes our national news media 
is fair. I think it is ludicrous to expect and to suggest they are fair 
and objective. They are clearly, in my view, biased toward big 
government and liberal activity.
  I am not going to say I am going to subject my campaigns to constant 
reinterpretation of what I do to some media outlet that may get worse 
than it is today. Apparently, they have unlimited rights to run their 
programs every day and call it ``news'' if they want to. Somebody who 
has a different view cannot raise money, buy time on their program, and 
rebut that?
  This is fundamental stuff. This is right to the core of what the 
first amendment was all about. The first amendment is about intelligent 
debate, argument, concern over policy issues--not whether or not you 
have a ``grunt'' or a ``roar'' in burning a flag. I don't believe that 
was ever intended to be covered by the Constitution.
  If so, we don't need to go in this direction. It is one of the most 
adverse steps we could take. It would be an error of colossal 
proportions if this Senate were to vote to amend the great charter of 
freedom, the first amendment to the Constitution of the United States, 
out of some vain, hopeless effort that we are going to suppress the 
right of free American citizens to raise money and speak out on what 
they believe in.
  I am prepared to vote on reasonable controls on campaign funding as 
long as it can pass constitutional muster. I believe fundamentally our 
best protection is to allow people to speak; if people give money, 
disclose how much money they give, and let everybody know promptly and 
immediately. If the public knows where the money is coming from, they 
may judge the value of the ads.
  In my Republican primary 3 years ago for the Senate, I had eight 
opponents. They spent $5 million among them. I spent $1 million. Two of 
my opponents spent more than $1 million of their own money. I had to 
raise every dime I could raise, some $900,000. I worked hard, and I won 
the race. John Connolly, mentioned earlier, spent more money per vote 
than any man, and he got clobbered. Other senatorial candidates have 
spent tens of millions of dollars and have been clobbered in races.
  I do not believe money always tells the tale. It was difficult for me 
when I faced the guy spending $1.5 million of his own money on a 
Republican primary in Alabama, but that is the way it is. I do not see 
how I can tell that person he cannot spend that money and express what 
he believes and cares about in that election about why he would be an 
outstanding candidate.
  Many gave to me because they believed I could be an effective voice 
for their concerns. That is what America is all about. I don't believe 
it corrupts politicians. I believe it sucks them into

[[Page S1726]]

the system and makes them be participants. They speak, run ads, and 
attack, sometimes, unfairly. If we can figure out a way to do a better 
job of disclosing how this money is spent and from whom it comes, I 
think that will help the public.
  I appreciate the leadership of Senators Bennett and McConnell, who 
are scholars on these issues. I believe the Senate should do well to 
listen to them. I agree with the Senator from South Carolina, this is 
really important. More Senators need to be paying attention to this 
crucial issue in our Nation's history.
  I yield to the Senator from Kentucky.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. I thank the Senator from Alabama, who has faithfully 
participated in the campaign finance debates in the years he has been 
here, always very skillfully. I am sure some of the things I will say 
will be repetitious because he was right on the mark in his 
observations about the Hollings amendment.
  It is important to note at the beginning of the debate, the last time 
we had a vote on the Hollings amendment was March 18, 1997. Only 38 
Senators voted for the Hollings amendment, an effort to amend the first 
amendment for the first time in the 200-year history of our country, 
restricting avenues of political speech. Only 38 of the 100 Senators 
believe it necessary, no matter what our views on the various campaign 
finance proposals before the Senate, to carve a chunk out of the first 
amendment to give the Government this kind of truly draconian power to 
control everybody's speech.
  I know Senator Feingold of McCain-Feingold fame is also going to 
oppose this amendment. I note that the Washington Post, with which I 
have essentially never been aligned with on a campaign finance issue, 
also opposes this amendment.
  With due respect to the Senator from South Carolina, he has framed 
the issue correctly by pointing out that in order to do what many of 
the so-called reformers have tried to do, you do need to amend the 
first amendment. Of course, that is a terrible idea, I respectfully 
suggest.
  The campaign finance debate is all about constitutional freedom. Soft 
money, hard money, issue advocacy, express advocacy, PACs, independent 
expenditures, bundling, and the other terms of art in the campaign 
finance debate are euphemisms for freedoms of speech and association 
protections under the first amendment to our Constitution, freedoms 
belonging to citizens groups, candidates, and parties. It is no more 
complicated than that.
  The measure before the Senate, the Hollings constitutional amendment 
to empower the Federal and 50 State governments to restrict all 
contributions and expenditures ``by, in support of, or in opposition to 
Federal and State candidates,'' illustrates this simple fact 
beautifully and succinctly. The Hollings amendment is a blunt 
instrument. Where a statutory approach such as a Shays-Meehan or 
McCain-Feingold and their ilk slices and dices at this freedom--a cut 
here, an evisceration there--the Hollings amendment reaches out and 
rips the heart right out of the first amendment.
  Before this week is out, we could be on our way to getting rid of the 
first amendment protection for everyone except pornographers. But I 
rather enjoy this debate. No pretense, no artifice, no question about 
it: If you believe that the Government, Federal and State, ought to 
have the unchecked power to restrict all contributions and spending 
``by, in support of, or in opposition to Federal and State 
candidates,'' then, by all means, vote for the Hollings amendment. If 
you believe that the U.S. Supreme Court should be taken out of the 
campaign finance equation, then the Hollings constitutional amendment 
is for you.
  If the Hollings amendment had been in place 25 years ago, there would 
have been no Buckley decision; Congress would have gotten its way. 
Independent expenditures would be capped at $1,000. Any issue advocacy 
that the FEC deemed capable of influencing elections would be capped at 
$1,000. Everyone would be under mandatory spending limits. There would 
be no taxpayer funding. It would not be necessary because spending 
limits would not have to be voluntary.
  That is why the American Civil Liberties Union counsel, Joel Gora, 
who was part of the legal team in the Buckley case, has called the 
Hollings constitutional amendment a ``recipe for repression.''
  The media, news and entertainment industries, ought to take note. 
There is no exemption for them in the Hollings constitutional 
amendment, no media loophole. Under the Hollings constitutional 
amendment, the Federal and State governments could regulate, restrict, 
even prohibit the media's own issue advocacy, independent expenditures, 
and contributions just as long as the restrictions were deemed 
reasonable.
  What we have traditionally done in order to assert what the Congress 
might consider reasonable is look to the American people and their 
views. Let's look at their views with regard to the press.
  Eighty percent of Americans want newspapers' political coverage 
regulated. You cannot do that under the first amendment; you could 
under the Hollings amendment.
  Eighty-six percent want mandatory equal coverage of candidates by 
newspapers. You cannot do that under the first amendment; you could do 
it under the Hollings amendment.
  Eighty percent want newspapers required to give equal space to 
candidates against whom they editorialize. You can't do that under the 
first amendment; you could under the Hollings amendment.
  Seventy percent believe reporters' personal biases affect campaign 
and issue coverage.
  They are right about that. Sixty-eight percent believe newspaper 
editorials are more important than a $10,000 contribution.
  Sixty-one percent believe that a newspaper-preferred candidate trumps 
the better-funded candidate.
  Forty-two percent of Americans believe editorial boards ought to be 
forced to have an equal number of Republicans and Democrats.
  Finally, 45 percent of Americans think newspapers should be required 
to give candidates free ad space.
  I mention this survey to make the point that if Congress is going to 
have the power to regulate all of this speech, presumably, it will 
refer to the opinions of the American people in trying to make these 
regulatory decisions, and all of those items I mentioned could be fair 
game in determining what is reasonable to be spent ``by and on behalf 
of or in opposition to a candidate.''
  Again, I commend the Senator from South Carolina for offering this 
amendment insofar as he lays on the table just what the stakes are in 
the campaign finance debate. To do what the reformers say they want to 
do, limit ``special interest influence,'' requires limiting the U.S. 
Constitution which gives special interests--all Americans--the freedom 
to speak, the freedom to associate, and the freedom to petition the 
Government for redress of grievances. That is called lobbying.
  We have to gut the first amendment and throw on the trash heap that 
freedom which the U.S. Supreme Court said six decades ago is the 
``matrix, the indispensable condition of nearly every other form of 
freedom.''
  Some would call that horror reform. A few dozen Senators may even 
vote for it. As I said, last time 38 voted for it. We can all agree to 
disagree on campaign finance. We can even agree to disagree on what is 
reform. But surely we can also agree that this business of amending the 
Constitution whenever the Supreme Court hands down a result we do not 
like is wrong and is dangerous. We trivialize that sacred document 
which so embodies the spirit of America, which guarantees the success 
of America, and we treat it as if it were a rough draft. To be 
seriously contemplating chopping off a huge chunk of the Bill of Rights 
must seem incomprehensible to the casual viewer of this discussion.
  This debate, like the debate over Shays-Meehan and McCain-Feingold, 
is not only about politicians' first amendment freedoms. The ``in 
support of or in opposition to'' components of the Hollings 
constitutional amendment refer to the freedom of everyone else in 
America--private citizens and groups and, yes, as I pointed out, even 
the media, the entire universe of political speech.

[[Page S1727]]

  What makes the Hollings amendment on many orders of magnitude so much 
more egregious than the statutory proposals is that the Supreme Court 
cannot intervene and save America from whatever folly we would engage 
in on the floor in defining what ``reasonable'' is.
  As I said, I recoil in horror from the substance of the Hollings 
amendment while I embrace the clarity of the choice it presents us. It 
exposes the fallacy of McCain-Feingold and other such speech 
suppression schemes. If one believes that McCain-Feingold is 
constitutional, as its advocates claim it is, then we do not need the 
Hollings constitutional amendment. If my colleagues vote for the 
Hollings constitutional amendment, then they have affirmed what so many 
of us inside and outside the Senate have been saying: That to do what 
McCain-Feingold proponents want to do--restrict spending by, in support 
of, and in opposition to candidates--then we need to get rid of the 
first amendment. That is what the Hollings constitutional amendment 
does: No more first amendment protection of political speech for 
anyone, politician or not.
  Fifteen years ago, when I first took the oath of this office to 
support and defend the Constitution of the United States against all 
enemies foreign and domestic, I had no idea how much time and energy I 
would expend doing just that--defending the Constitution, not from 
foreign enemies, mind you, but from the Congress itself. I certainly 
could not have imagined that the Senate would spend so much time 
seriously discussing whether we should wipe out core political 
freedoms. We need to stop this, and I am confident and hopeful that the 
Hollings amendment will be defeated overwhelmingly tomorrow, as it has 
been defeated overwhelmingly in the past.

  I will mention a couple of recent letters in relation to this 
amendment. One is from Roger Pilon at the Cato Institute who says in 
pertinent part:

       . . . I am heartened to learn that those who want to 
     ``reform'' our campaign finance law are admitting that a 
     constitutional amendment is necessary. But that very 
     admission speaks volumes about the present 
     unconstitutionality of most of the proposals now in the air. 
     It is not for nothing that the Founders of this nation 
     provided explicitly for unrestrained freedom of political 
     expression and association--which includes, the Court has 
     said, the right to make political contributions and 
     expenditures. They realized that governments and government 
     officials tend to serve their own interests, for which the 
     natural antidote is unfettered political opposition--in 
     speech and in the electoral process.
       In the name of countering that tendency this amendment 
     would restrict its antidote. It is a ruse--an unvarnished, 
     transparent effort to restrict our political freedom and, by 
     implication, the further freedoms that freedom ensures. That 
     it is dressed in the gossamer clothing of ``reform'' only 
     compounds the evil--even as it exposes its true character.

  I also have a letter from the ACLU, dated March 24, 2000, indicating 
its opposition to the Hollings constitutional amendment. In pertinent 
part, the ACLU says the constitutional amendment:

       . . . would also give Congress and every state legislature 
     the power, heretofore denied by the first amendment, to 
     regulate the most protected function of the press--
     editorializing. Print outlets such as newspapers and 
     magazines, broadcasters, Internet publishers and cable 
     operators would be vulnerable to severe regulation of 
     editorial content by the government. A candidate-centered 
     editorial, as well as op-ed articles or commentary printed at 
     the publisher's expense are most certainly expenditures in 
     support of or in opposition to particular political 
     candidates. The amendment, as its words make apparent, would 
     authorize Congress to set reasonable limits on the 
     expenditures by the media during campaigns, when not strictly 
     reporting the news. Such a result would be intolerable in a 
     society that cherishes the free press.
       Even if Congress exempted the press from the amendment, 
     what rational basis would it use to distinguish between 
     certain kinds of speech? For example, why would it be 
     justified for Congress to allow a newspaper publisher to run 
     unlimited editorials on behalf of a candidate, but to make it 
     unlawful for a wealthy individual to purchase an unlimited 
     number of billboards for the same candidate? Likewise, why 
     would it be permissible for a major weekly news magazine to 
     run an unlimited number of editorials opposing a candidate, 
     but impermissible for the candidate or his supporters to 
     raise or spend enough money to purchase advertisements in the 
     same publication? At what point is a journal or magazine that 
     is published by an advocacy group different from a daily 
     newspaper, when it comes to the endorsement of candidates for 
     federal office? Should one type of media outlet be given 
     broader free expression privileges than the other? Should 
     national media outlets have to abide by fifty different state 
     and local standards for expenditures? These are questions 
     that Congress has not adequately addressed or answered.

  All of which would be before the Congress if the Hollings amendment 
were to become law.
  Madam President, I ask unanimous consent that the letter from the 
Cato Institute, the ACLU, and an editorial from the Washington Post, 
also opposing the Hollings amendment, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Cato Institute,

                                   Washington, DC, March 24, 2000.
     Hon. Mitch McConnell,
     Chairman, Committee on Rules and Administration, U.S. Senate, 
         Washington, DC.
       Dear Chairman McConnell: Your office has invited my brief 
     thoughts on S.J. RES. 6, offered by Senator Hollings for 
     himself and Senators Specter, McCain, and Bryan, which 
     proposes an amendment to the Constitution of the United 
     States that would grant power to the Congress and the States 
     ``to set reasonable limits on the amount of contributions 
     that may be accepted by, and the amount of expenditures that 
     may be made by, in support of, or in opposition to, a 
     candidate for nomination for election to, or for election 
     to,'' any federal, state, or local office.
       It is my understanding that on Monday next, Senator 
     Hollings is planning to offer this resolution as an amendment 
     to the flag-burning amendment now before the Senate. For my 
     thoughts on the proposed flag-burning amendment, please see 
     the testimony I have given on the issue, as posted at the web 
     site of the American Civil Liberties Union, and the op-ed I 
     wrote for the Washington Post, copies of which are attached.
       Regarding the proposed campaign finance amendment, I am 
     heartened to learn that those who want to ``reform'' our 
     campaign finance law are admitting that a constitutional 
     amendment is necessary. But that very admission speaks 
     volumes about the present unconstitutionality of most of the 
     proposal now in the air. It is not for nothing that the 
     Founders of this nation provided explicitly for unrestrained 
     freedom of political expression and association--which 
     includes, the Court has said, the right to make political 
     contributions and expenditures. They realized that 
     governments and government officials tend to serve their own 
     interests, for which the natural antidote is unfettered 
     political opposition--in speech and in the electoral process.
       In the name of countering that tendency this amendment 
     would restrict its antidote. It is a ruse--an unvarnished, 
     transparent effort to restrict our political freedom and, by 
     implication, the further freedoms that freedom ensures. That 
     it is dressed in the gossamer clothing of ``reform'' only 
     compounds the evil--even as it exposes its true character. If 
     the true aim of this amendment is incumbency protection, then 
     let those who propose it come clean. Otherwise, they must be 
     challenged to show why the experience of previous ``reforms'' 
     will not be repeated in this case too. Given the evidence, 
     that will not be an enviable task.
       Fortunately, candor is still possible in this nation. This 
     is an occasion for it. I urge you to resist this amendment 
     with the focus that candor commands.
           Yours truly,
                                                      Roger Pilon,
     Vice President for Legal Affairs.
                                  ____

                                   American Civil Liberties Union,


                                   Washington National Office,

                                   Washington, DC, March 24, 2000.
       Dear Senator: The American Civil Liberties Union strongly 
     opposes S.J. Res. 6, the proposed constitutional amendment 
     that permits Congress and the states to enact laws regulating 
     federal campaign expenditures and contributions.
       Whatever one's position may be on campaign finance reform 
     and how best to achieve it, a constitutional amendment of the 
     kind here proposed is not the solution. Amending the First 
     Amendment for the first time in our history in the way that 
     S.J. Res. 6 proposes would challenge all pre-existing First 
     Amendment jurisprudence and would give to Congress and the 
     states unprecedented, sweeping and undefined authority to 
     restrict speech protected by the First Amendment since 1791.
       Because it is vague and over-broad, S.J. Res. 6 would give 
     Congress a virtual ``blank check'' to enact any legislation 
     that may abridge a vast array of free speech and free 
     association rights that we now enjoy. In addition, this 
     measure should be opposed because it provides no guarantee 
     that Congress or the states will have the political will, 
     after the amendment's adoption, to enact legislation that 
     will correct the problems in our current electoral system. 
     This amendment misleads the American people because it tells 
     them that only if they sacrifice their First Amendment 
     rights, will Congress correct the problems in our system. Not 
     only is this too high a price to demand in the name of 
     reform, it is unwise to promise the American people such an 
     unlikely outcome.
       Rather than assuring that the electoral process will be 
     improved, a constitutional

[[Page S1728]]

     amendment merely places new state and federal campaign 
     finance law beyond the reach of First Amendment 
     jurisprudence. All Congress and the states would have to 
     demonstrate is that its laws were ``reasonable.'' 
     ``Reasonable'' laws do not necessarily solve the problems of 
     those who are harmed by or locked out of the electoral 
     process on the basis of their third party status, lack of 
     wealth or non-incumbency. The First Amendment properly 
     prevents the government from being arbitrary when making 
     these distinctions, but S.J. Res. 6 would enable the Congress 
     to set limitations on expenditures and contributions 
     notwithstanding current constitutional understandings.
       Once S.J. Res. 6 is adopted, Congress and local governments 
     could easily further distort the political process in 
     numerous ways. Congress and state governments could pass new 
     laws that operate to the detriment of dark horse and third 
     party candidates. For example, with the intention of creating 
     a ``level playing field'' Congress could establish equal 
     contributions and expenditure limits that would ultimately 
     operate to the benefit of incumbents who generally have 
     higher name recognition, greater access to their party 
     apparatus and more funds than their opponents. Thus, 
     rather than assure fair and free elections, the proposal 
     would enable those in power to perpetuate their own power 
     and incumbency advantage to the disadvantage of those who 
     would challenge the status quo.
       S.J. Res. 6 would also give Congress and every state 
     legislature the power, heretofore denied by the First 
     Amendment, to regulate the most protected function of the 
     press--editorializing. Print outlets such as newspapers and 
     magazines, broadcasters, Internet publishers and cable 
     operators would be vulnerable to severe regulation of 
     editorial content by the government. A candidate-centered 
     editorial, as well as op-ed article or commentary printed at 
     the publisher's expense are most certainly expenditures in 
     support of or in opposition to particular political 
     candidates. The amendment, as its words make apparent, would 
     authorize Congress to set reasonable limits on the 
     expenditures by the media during campaigns, when not strictly 
     reporting the news. Such a result would be intolerable in a 
     society that cherishes the free press.
       Even if Congress exempted the press from the amendment, 
     what rational basis would it use to distinguish between 
     certain kinds of speech? For example, why would it be 
     justified for Congress to allow a newspaper publisher to run 
     unlimited editorials on behalf of a candidate, but to make it 
     unlawful for a wealthy individual to purchase an unlimited 
     number of billboards for the same candidate? Likewise, why 
     would it be permissible for a major weekly newsmagazine to 
     run an unlimited number of editorials opposing a candidate, 
     but impermissible for the candidate or his supporters to 
     raise or spend enough money to purchase advertisements in the 
     same publication? At what point is a journal or magazine that 
     is published by an advocacy group different from a major 
     daily newspaper, when it comes to the endorsement of 
     candidates for federal office? Should one type of media 
     outlet be given broader free expression privileges than the 
     other? Should national media outlets have to abide by fifty 
     different state and local standards for expenditures? These 
     are questions that Congress has not adequately addressed or 
     answered.
       Moreover, the proposed amendment appears to reach not only 
     expenditures by candidates or their agents but also the truly 
     independent expenditures by individual citizens and groups--
     the very kind of speech that the First Amendment was designed 
     to protect.
       If Congress or the states want to change or campaign 
     finance system, then it need not throw out the First 
     Amendment in order to do so. Congress can adopt meaningful 
     federal campaign finance reform measures without abrogating 
     the First Amendment and without contravening the Supreme 
     Court's decision in Buckley v. Valeo. Some of these reform 
     measures include:
       Public financing for all legally qualified candidates--
     financing that serves as a floor, not a ceiling for campaign 
     expenditures,
       Extending the franking privilege to all legally qualified 
     candidates,
       Providing assistance to candidates for broadcast 
     advertising,
       Improving the resources for the FEC so that it can provide 
     timely disclosure of contributions and expenditures,
       Providing resources for candidate travel.
       Rather than argue for these proposals, many members of 
     Congress continue to propose unconstitutional measures, such 
     as the McCain/Feingold bill that are limit-driven methods of 
     campaign finance reform that place campaign regulation on a 
     collision course with the First Amendment. Before Senators 
     vote to eliminate certain First Amendment rights, the ACLU 
     urges the Congress to consider other legislative options, and 
     to give these alternatives its considered review through the 
     hearing and mark-up processes.
       The ACLU urges Senators to oppose S.J. Res. 6. As Joel 
     Gora, Professor of Law of the Brooklyn Law School recently 
     stated, ``This constitutional amendment is a recipe for 
     repression.''
           Sincerely,
                                                  Laura W. Murphy,
     Director.
                                  ____


                [From the Washington Post, Dec. 2, 1996]

                     Wrong Way on Campaign Finance

       Campaign finance reform is hard in part because it so 
     quickly bumps up against the First Amendment. To keep offices 
     and officeholders from being bought, proponents seek to limit 
     what candidates for office can raise and spend. That's 
     reasonable enough, except that the Supreme Court has ruled--
     we think correctly--that the giving and spending of campaign 
     funds is a form of political speech, and the Constitution is 
     pretty explicit about that sort of thing. ``Congress shall 
     make no law . . . abridging the freedom of speech'' is the 
     majestic sentence. So however laudable the goal, you end up 
     having to regulate lightly and indirectly in this area, which 
     means you are almost bound to achieve an imperfect result.
       As a way out of this dilemma, Senate Minority Leader Tom 
     Daschle added his name the other day to the list of those who 
     say the Constitution should be amended to permit the 
     regulation of campaign spending. He wasn't just trying to 
     duck the issue by raising it to a higher level as some would-
     be amenders have in the past. Rather, his argument is that 
     you can't win the war without the weapons, which in the case 
     of campaign finance means the power not just to create 
     incentives to limit spending but to impose spending limits 
     directly.
       But that's what everyone who wants to put an asterisk after 
     the First Amendment says: We have a war to fight that we can 
     win only if given the power to suppress. It's a terrible 
     precedent even if in a virtuous cause, and of course, it is 
     always in a virtuous cause. The people who want a flag-
     burning amendment think of themselves as defenders of civic 
     virtue too. These amendments are always for the one cause 
     only. Just this once, the supporters say. But have punched 
     the one hole, you make it impossible to argue on principle 
     against punching the next. The question becomes not whether 
     you have exceptions to the free speech clause, but which 
     ones?
       Nor is it clear that an amendment would solve the problem. 
     It would offer a means but not the will. The system we have 
     is a system that benefits incumbents. That's one of the 
     reasons we continue to have it, and future incumbents are no 
     more likely to want to junk it than is the current crop.
       The campaign finance issued tends to wax and wane, 
     depending on how obscene the fund-raising was, or seemed, in 
     the last election. The last election being what it was, 
     Congress is under a fair amount of pressure to toughen the 
     law. The Democrats doubtless feel it most, thanks to the 
     revelations of suspect fund-raising on the part of the 
     president's campaign, though the Republicans have their own 
     sins to answer for--not least their long record of resistance 
     to reform. With all respect to Mr. Daschle, a constitutional 
     amendment will solve none of this.
       The American political system is never going to be 
     sanitized, nor, given the civic cost of the regulations that 
     would be required (even assuming that a definition of the 
     sanitary state could be agreed upon), should that be anyone's 
     goal. Rather, the goal should be simply to moderate the role 
     of money in determining elections and of course the policies 
     to which the elections lead. The right approach remains the 
     same: Give candidates some of the money they need to run, but 
     exact in return a promise to limit their spending. And then 
     enforce the promise. Private money would still be spent, but 
     at a genuine and greater distance from the candidates 
     themselves. It wouldn't be a perfect world, and that would be 
     its virtue as well as a flaw.

  Mr. McCONNELL. Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 32 minutes remaining.
  Mr. McCONNELL. I yield to the distinguished Senator from Utah 
whatever time he may need.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. BENNETT. Madam President, I have enjoyed this discussion because 
it is always enlightening and is the kind of discussion the American 
people need to hear in the present atmosphere, when there is a rush to 
blame all of our problems on our campaign finance system, and say: If 
we only reform the campaign finance system, the millennium will come. 
Everything will be marvelous. We will vote on Mondays. Our political 
system will take care of itself. There will be purity throughout all 
the land.
  I come to this debate not as a lawyer but as a businessman. One of 
the things I learned in the business world is: Find out if it works. It 
is very interesting to have the theory laid out before you, but the 
question is, Does it work? Will the situation be as advertised before 
you make the purchase?
  We have enough examples before us that I think make it clear that the 
current reforms being talked about--whether it is a constitutional 
amendment or McCain-Feingold, which I believe would be struck down as 
unconstitutional--do not work. Let's look at the evidence. Let's see 
what we have.
  Stuart Rothenberg has a column in Roll Call, a newspaper with which 
all

[[Page S1729]]

of us on the Hill are familiar. This appeared on March 20, 1997, but it 
is still applicable. It is talking about campaign finance reform 
applied in the State of Colorado. The headline is: ``Look Before You 
Leap: Colorado's Lesson on Campaign Finance.'' It goes through and 
describes the reforms that were established in Colorado, backed by 
Common Cause and the League of Women Voters, setting limits on 
candidates and limits on contributions. To quote Rothenberg:

       Now, however, most seasoned political operatives and many 
     candidates will tell you privately that they think the law is 
     terrible. They complain that the limits are too low . . . and 
     they note that the law doesn't address independent 
     expenditures, which will now balloon.

  That is the point I want to make over and over again: ``independent 
expenditures, which will now balloon.''
  He goes on in the column to say:

       So instead of making candidates more responsible for the 
     campaign environment, the law actually encourages independent 
     forces to become active.

  Here is where they have tried it. They have found that special 
interest power has gone up, not down, and that candidates have been 
forced out of the equation to a great degree, while special interests 
have filled the vacuum.
  He concludes his column by saying:

       Clearly, the voters don't like the current campaign finance 
     system, and they are eager for change. But they haven't 
     considered the ramifications of many of the proposals, and 
     most of the suggestions for reform have ignored the realities 
     of political campaigns. Reformers would be well advised to 
     start at the beginning, not at the end.

  If I may be a little parochial for a moment, there is an editorial 
that appeared in the Salt Lake Tribune, my hometown newspaper, entitled 
``Don't Ban Soft Money.'' The Salt Lake Tribune is not known for its 
friendliness to Republican candidates. But they have raised this issue, 
as is their first amendment right as a newspaper. They say:

       The campaign-reform prescription of the moment is ``ban 
     soft money.'' Beware. The cure could be worse than the 
     disease.

  They go on to describe all of that, and then they make the same point 
as Stuart Rothenberg:

       A ban on soft money would simply encourage big donors to 
     run issue campaigns themselves. Then a candidate's supporters 
     could do a hatchet job on an opponent without any 
     accountability to anyone. Some groups already are adept at 
     this tactic.

  I do not know if they ever met, but the Salt Lake Tribune and Stuart 
Rothenberg are making the same point: If you put the campaign finance 
reform pressure on the candidate, you increase the power of independent 
expenditures, you increase the power of special interest groups.
  Here is a column by Dane Strother, a Democratic political consultant. 
I am trying to not just quote Republicans here. This appeared in the 
New York Times on February 1, 1997. He said:

       Limiting candidates' spending usually succeeds only in 
     giving special interests even more clout.

  Once again, that is the same statement as these others. I will repeat 
it:

       Limiting candidates' spending usually succeeds only in 
     giving special interests even more clout. Consider recent 
     ``reform'' efforts in Kentucky and the District of Columbia.

  We are dealing with actual results here. We are not dealing with 
theory. He describes how, when he was living in the District of 
Columbia, campaign contributions were limited. He says:

       In 1993, Washington limited contributions in mayoral races 
     to $100--

  Boy, that is draconian--

     down from $2,000 per election cycle. Some candidates 
     struggled mightily to raise even $30,000, and couldn't get 
     their messages to the public. I lived in the District then, 
     and didn't receive a single political flier or piece of mail. 
     Some do-gooders would find this an improvement, but 
     information is the basis of an educated vote.

  Then here is the punch line--the same point. He said:

       Special interests filled the vacuum. Unions and big 
     business set up independent campaigns to help the candidates 
     of their liking, while politicians were reduced to begging 
     them for support. After the election, the City Council 
     returned to the old system.

  ``Special interests filled the vacuum''--it is the pattern that has 
been repeated again and again. When you put limits on the ability of a 
candidate to express himself, to raise the money and get his message 
out, you create an enormous opportunity for special interests to fill 
the vacuum.
  Here is another example. This one had to do with an election in 
Chicago. It is written by R. Bruce Dold. He talks about the 1984 race 
where Charles Percy lost his seat to Paul Simon.
  He said this was brought about, in large measure, because of a 
campaign run by an outsider whom he identifies as a man named Michael 
Goland who had no connection whatsoever to Paul Simon but who did not 
like Charles Percy's voting record. So he ran a series of ads. He spent 
more than $1 million running his ads, independent of either Percy or 
Durbin, attacking Percy as a chameleon. He said, if you put pressure on 
the candidates, you will see far more chameleon ads.
  He points out that in 1996, the AFL-CIO spent millions of dollars to 
run ``Mediscare'' ads against Republicans; and then, to balance it, he 
shows that the Christian Coalition and the National Rifle Association 
tried similar maneuvers. He says, summarizing once again:

       If these groups want to express a political opinion, more 
     power to them. But McCain-Feingold would make them more 
     powerful than the candidates themselves.

  That is another example, another place. You go to Colorado, you go to 
Utah, you go to Washington, DC, you go to Chicago--everywhere it is 
tried, it is demonstrated again and again, the more pressure you put on 
the candidates in the name of campaign finance reform, the more you 
give to the special interest groups who then, in the words of one of 
the columnists there, fill the vacuum.
  I have more that I would like to say, but I see my colleague from 
Washington is here, and I want to close so we can hear from him.
  I simply want to commend to the Members of the Senate an article 
reprinted from the University of West Los Angeles Law Review written by 
James Bopp, Jr., and Richard E. Coleson, in which I think they 
summarize it all in the title of their article. The title is: ``The 
First Amendment Is Not A Loophole.'' I cannot think of a better summary 
of this entire debate than that title of this article by these lawyers 
in this law review: ``The First Amendment Is Not A Loophole.'' Then 
they add the subhead: ``Protecting Free Expression In The Election 
Campaign Context.''
  I may come back to this article at a later point in the debate. But 
as I say, now I wish to wind up so we can hear from the Senator from 
Washington. I cannot think of a better summary than that of this title, 
and I leave it at that: ``The First Amendment Is Not A Loophole.''
  Mr. McCONNELL. Madam President, again I thank my good friend from 
Utah for his support and important contribution to this debate. We will 
have another hour in the morning where I hope he will be available and 
we will discuss that further.
  How much time do I have left?
  The PRESIDING OFFICER. The Senator has 21 minutes remaining.
  Mr. McCONNELL. I yield to the distinguished Senator from Washington 
such time as he may need.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mr. GORTON. Madam President, Members of this body, in speaking 
against a similar, though not identical, attempt to amend the 
Constitution of the United States 2 or 3 years ago, I spoke of amending 
the first amendment.
  As I read this short and very simple proposal from the Senators from 
South Carolina and Arizona with respect to political speech, it does 
not amend the first amendment. It repeals it. It states that the 
Congress of the United States has the power reasonably to limit 
contributions or expenditures with respect to elections for Federal and 
State offices. That is exactly the power the Congress of the United 
States would have were there no first amendment to the Constitution of 
the United States. Our actions in that respect would have to meet some 
test of reasonableness under the 14th amendment in that field as they 
do in every other. But for all practical purposes, the first amendment 
to the Constitution of the United States, ratified by the States 209 
years ago, would be repealed with respect to political speech.
  Now, it is not deemed that obscenity is a significant enough threat 
to the people of the United States to repeal or even to amend the first 
amendment in that respect. It is not considered important enough to 
change the first

[[Page S1730]]

amendment with respect to tobacco or alcohol advertising. But it is 
considered that free and open political speech, through anything other 
than an individual's voice, is now such a great threat to the free 
institutions of the United States that Congress--that is to say, 
incumbent officeholders--ought to be able to limit it in any way they 
deem reasonable. This is clearly, as was its predecessor in 1997, the 
most profound threat to first amendment rights, literally, since that 
Constitution was adopted.
  The Alien and Sedition Acts in the last decade of the 18th century 
were, after all, only statutes that were subject to challenge under the 
Constitution. They also had an automatic termination date to them. They 
are nonetheless constant examples of how a Congress can misuse its 
powers to limit speech and are considered such in almost any thorough 
history of the Constitution and of the United States itself.
  Now, what is it that leads us to this moment? Clearly, it is the 
feeling, the opinion, that too much money is spent on politics, that 
there is too much political speech, and that it is clearly too free. 
The distinguished colleague who sits in front of me and was recently a 
candidate for President was, I think, rightly critical of two Texas 
millionaires who advertised in a way he considered misleading and 
false. This proposal would say that they could be completely muzzled, 
that they could be denied the right to speak at all, if it was deemed 
unreasonable. And certainly the candidate who was the victim of such 
speech deems it to be unreasonable, as would many incumbents in many 
Congresses in the United States.
  We are here dealing with this proposition: Too much money is being 
spent on politics. Not that too much money is being spent on regulating 
the activities of the people of the United States, not that too much 
money is being spent on social or political programs of the United 
States, but that too much money is spent in responding to those 
programs and to that regulation and that somehow or another the power 
of the Federal Government to regulate economic, environmental, and 
social activities is so benign that we can muzzle the criticisms of 
those who are adversely affected by that regulation. At least we can 
muzzle those expressions which are directed at changing the people who 
write the very laws that impose those regulations.
  We can at the very least ascribe consistency and thoughtfulness to 
the promoters of this constitutional amendment who are also eloquent 
spokespersons for the original McCain-Feingold legislation, legislation 
that limits, that comes close to eliminating the right of an outside 
person so much as to mention the name of a candidate 6 weeks before an 
election.
  Yes, if you want to say that anyone--including a newspaper 
editorialist but even more significantly, someone who does not own a 
newspaper--who wants to criticize a candidate for office in the 6 weeks 
before an election, if you want to eliminate that right, if you think 
it is desirable to limit or to eliminate that right, you do, in fact, 
need this constitutional amendment.
  McCain-Feingold, as it came before this body, in that respect at 
least is clearly and blatantly and openly in violation of a 
constitutional provision, the first amendment, that says: ``Congress 
shall make no law respecting freedom of speech or of the press.'' That 
may be the single most quoted line in the entire Constitution of the 
United States. But the proponents of this amendment here today propose 
effectively to strike it from the Constitution as it relates to 
election campaigns for Federal or State or local office.
  The statement of the case should assure its defeat. The statement of 
the case that somehow or another we are too political, that campaigns 
for office are too robust as they deal with this massive engine of the 
Federal Government, and that we should repeal one of the founding 
theories of this Government, the right of completely untrammeled and 
totally free political speech, to state that proposition is to defeat.
  We should not repeal the first amendment to the Constitution of the 
United States with respect to free political speech. We should not 
modify the first amendment to the Constitution of the United States 
with respect to free political speech. We should, though we may lack 
the imaginations of James Madison and his colleagues in the first 
Congress, at least have the wisdom and the humility not to destroy what 
they wrought at the very founding of this constitutional Republic.
  Mr. McCONNELL. Madam President, how much time does my side have 
remaining?
  The PRESIDING OFFICER. The Senator from Kentucky has 9 minutes 
remaining.
  Mr. McCONNELL. Madam President, I am not sure I will use the entire 9 
minutes. I thank the Senator from Washington for his contribution to 
this debate once again, and also my friend from Utah, and remind 
everyone the last time we voted on the Hollings amendment, it only got 
38 votes. Even the Washington Post, with whom I am seldom aligned on 
this subject, opposes the measure. Senator Feingold opposes the 
measure.
  Mr. GORTON. Will the Senator from Kentucky yield for a question?
  Mr. McCONNELL. I yield to the Senator from Washington for a question.
  Mr. GORTON. Is it appropriate, I ask my friend from Kentucky, to 
describe 38 votes to repeal the first amendment to the Constitution as 
``only'' 38?
  Mr. McCONNELL. I say to my friend from Washington, it is discouraging 
that there were even 38, but I say also to my friend from Washington, 
in earlier Congresses the Hollings amendment got greater support, 
including up to 52 votes in favor of the proposition back in 1988. So I 
prefer to look at the bright side of this, I say to the Senators. It 
makes progress. We are moving in the right direction and, hopefully, 
tomorrow there will be even fewer than 38 votes. I think we are heading 
in the right direction. We have some time remaining. I don't know 
whether the Senator from Utah would like to speak further. I would be 
happy to give him the remainder of the time. It is my understanding 
there are 2 hours equally divided in the morning?

  The PRESIDING OFFICER (Mr. Roberts). The Senator is correct in that 
assumption.
  Mr. McCONNELL. It is not yet determined when that would begin, is it?
  The PRESIDING OFFICER. At 9:30.
  Mr. McCONNELL. Two hours equally divided beginning at 9:30 a.m.?
  The PRESIDING OFFICER. That's correct.
  Mr. McCONNELL. I yield the remainder of the time on this side to the 
distinguished Senator from Utah.
  Mr. BENNETT. Mr. President, I wish to add another point to the points 
I made earlier when I said that holding down the ability of candidates 
to express themselves in terms of the amount of money they can raise 
and the amount of advertising they can do only creates an opportunity 
for special interests to fill the vacuum. There is one other point I 
need to make with respect to the perceptions on this issue. The first 
perception, which I have attacked, is that holding down the 
expenditures and the contributions will somehow control the special 
interests. I am sure the results of where it has been tried has been in 
the opposite direction.
  The special interest rule now through campaign contributions --I want 
to share this with the Senate. A survey was done in Fortune magazine, 
published in December of 1999, byline, Jeffrey Birnbaum, who, again, is 
not normally known for his sympathy of the positions of this Senator, 
he talks about the impact of money on politics in Washington in this 
article. Fortune magazine does an annual survey of who has the most 
clout in Washington, which special interests are the most powerful.
  For 3 years running now--and in this article it is the same one--the 
No. 1 special interest that has the most power in Washington, rated by 
those who have done the survey, is--the envelope please--the AARP, 
which is a group that, by its rules, does not give any campaign 
contributions to anyone. The group that is considered the most powerful 
special interest in Washington by this independent survey is a group 
that does not give campaign contributions, hard or soft.
  One of the individuals involved in pulling together the survey, a man 
from the Mellman Group--Mark Mellman is his name--he is one of the

[[Page S1731]]

pollsters. He normally polls on the Democratic side of the aisle. I 
think my Democratic colleagues might recognize his name. He made this 
comment, ``We couldn't find any direct relationship between campaign 
donations and clout.''

  I think that is worth repeating in this superheated atmosphere about 
how campaign contributions are ``buying'' the Congress. Here is an 
outsider coming in to do a survey of the most powerful special interest 
groups in Washington and how they got their power, and he says: ``We 
couldn't find any direct relationship between campaign donations and 
clout.''
  The question arises: if their clout does not come from the campaign 
contributions, why does the AARP have so much power? It is because they 
have so many members. It is voters who make the difference.
  What is the group in second place behind the AARP. It is the National 
Federation of Independent Businessmen. Why do they have so much power? 
Because they have so many members. It is voters who make the 
difference.
  I am sure that no one would want to say to the AARP, in the name of 
campaign finance reform, we are going to forbid you to tell your 
members what you think about how people vote in Washington. Are we 
going to say to the NFIB we are going to forbid you to talk to your own 
members in the name of campaign finance reform? Those are the groups 
that are 1 and 2 in this independent survey.
  You can go through the whole thing and you will begin to realize that 
all of the conversation about contributions and power in Washington is 
conversation that takes place in the press gallery. In the reality of 
where we compete in the election process, it misses the mark.
  I remember during the hearings someone said: Senator, with this 
process you are allowing people to buy access to you. I responded then 
as I respond now: The best way for you to get access to me is to 
register to vote in the State of Utah. If you are a voter in the State 
of Utah, I will do my best to get access to you, greet you, sign 
autographs, make you feel good about me. It will not cost you anything, 
particularly if you live in Utah. If you don't live in Utah, it would 
be a little hard to register there. So I think there are some myths 
that need to be dispelled.
  The final one I want to address has to do with this question of the 
amount of money that is flowing and is being raised. I am quoting now 
from a paper presented by Professor Joel Gora from the Brooklyn Law 
School, another Democrat, a man who was heavily involved in Senator 
Eugene McCarthy's insurgent campaign for the Presidency in 1968. He 
makes this point:

       Senator McCarthy's landmark and principled 1968 
     Presidential campaign raised more money, adjusted for 
     inflation, than George W. Bush's campaign this year . . .

  I didn't hear anybody complaining in 1968 that Eugene McCarthy was a 
tool of special interests bought with special interest money. He raised 
more money, adjusted for inflation, than George W. Bush has raised this 
year. And Professor Gora goes on to say:

       . . . and did so relying on an extremely small handful of 
     extremely wealthy individuals who shared the ideals and 
     values of Senator McCarthy and his supporters. Only in the 
     perverted post-Watergate world of campaign ``reform'' would 
     the word ``corruption'' or ``the appearance of corruption'' 
     possibly be used to describe that noble endeavor.

  I didn't support Eugene McCarthy in 1968, but I agree that nobody 
would have said that Eugene McCarthy in 1968 was a tool of special 
interests or that he was part of corruption or the appearance of 
corruption? Why? He disclosed every dollar immediately when it was 
received, and everybody knew who his supporters were and why they were 
with him. They were with him because they opposed the war in Vietnam.
  There is much more that can be said, and undoubtedly will be said, 
but I want to leave it at that. A number of myths are swirling around 
this whole debate. We need to look at the reality, which is that every 
time campaign finance reform has been tried at the State level, the 
power of special interest groups have gone up, not down, as a result. 
The reality of it is that we do not have an inordinate amount of money 
washing through politics today. If you take it on an inflation-adjusted 
basis, it is the same today as it was back in 1968. We do have a great 
deal of hysteria which, if we don't puncture the balloon of that 
hysteria, could lead us to make a seriously significant mistake. I 
don't want us to do that. That is why I am as vigorous as I can be to 
see to it that we do not pass the Hollings amendment and we do not, 
subsequent to that, pass McCain-Feingold.

  I yield the floor.
  The PRESIDING OFFICER. The distinguished Senator from Pennsylvania.
  Mr. SPECTER. I thank the Chair.
  The PRESIDING OFFICER. Who yields time to the Senator?
  Mr. HOLLINGS. I yield such time as is necessary.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. SPECTER. I thank my distinguished colleague from South Carolina.
  Mr. President, on January 30, 1976, the Supreme Court of the United 
States handed down a most extraordinary decision equating freedom of 
speech with money. That was a shock to me on the day the decision came 
down, and it remains a shock, because in a democracy political power 
ought not to be determined by who has the most money.
  Since 1988, for more than 12 years, Senator Hollings and I have 
proposed a very basic constitutional amendment which would permit 
Congress to regulate contributions and expenditures. There is nothing 
in this amendment which would limit political speech otherwise, but 
deals solely with the issue of contributions and expenditures.
  The amendment states Congress shall have the power to set reasonable 
limits on the amount of contributions that may be accepted by and the 
amount of expenditures that may be made by or in support of or in 
opposition to a candidate for nomination or election to or for election 
to Federal office. Section 2 gives similar power to the States in 
identical language.
  In 1976, the day Buckley v. Valeo was handed down, I was an announced 
candidate for the Republican nomination for the Senate in the State of 
Pennsylvania. I had entered into that contest on the basis of the 1974 
Campaign Finance Act, which said that a candidate for nomination for 
the Senate in the State the size of Pennsylvania would be limited to 
spending of $35,000. My opponent in that primary contest was 
Congressman John Heinz. On January 30, the Supreme Court said that John 
Heinz could spend millions, which he did, and my brother, Morton 
Specter, who might have been able to finance my campaign, was limited 
to $1,000. I had a little bit of a hard time understanding at that 
point why Congressman Heinz's speech was different from Morton 
Specter's speech.
  When I came to the Congress, I pursued this issue. As I say, since 
1988, Senator Hollings and I have pursued this constitutional 
amendment. This is the 106th Congress. It was in the 105th Congress and 
the 104th Congress, et cetera. I believe it is a very important 
amendment if we are to eliminate certain dangers, and certainly the 
perception of dangers, in our election system.
  In the 1996 Presidential campaign, the expenditures were some $400 
million. In the congressional campaigns in 1996, there was almost $300 
million in the Senate, and more than $477 million in the House. In the 
1988 congressional campaigns, the Senate spending level remained at 
about the same, while the House spent about $452 million. The time that 
it takes Members of Congress to raise the money has been well 
documented. There is a perception in the land that Members of 
Congress--Senators and Representatives--are for sale. I think that 
votes are not for sale, but I believe there is no doubt of the public 
perception to the contrary.
  The amendment which has been presented is necessary because of the 
decision in the Buckley case, and it is improperly characterized as an 
amendment to the first amendment of the U.S. Constitution. In my 
personal view, the first amendment to the U.S. Constitution is 
inviolate. Those words have stood this country tremendously well, and I 
would fight any effort to change the language of the first amendment. 
But a decision by the Supreme Court of the United States in 
interpreting the first amendment is not inviolate. It is not Holy Writ. 
These judgments are handed down by individuals who are nominated and 
confirmed in the Senate, and they write opinions because that is their 
opinion as to what the first amendment means.

[[Page S1732]]

  I submit that to say speech is equivalent to money is basically 
outrageous. But until that is changed and our Constitution requires 
that in the form of a constitutional amendment, it ought more 
accurately to be said that it is the opinion of the Congress by a two-
thirds vote backed up by the opinion of the State legislatures, three-
fourths of which are necessary to have the amendment come through, that 
the opinion of the Supreme Court is not correct.
  We are debating at the same time a constitutional amendment on the 
flag-burning issue. Here again, it is not the Constitution which says 
that in the first amendment a citizen or anyone has a constitutional 
right to burn a flag. But five Justices said in opinions the first 
amendment raises that implication. Four Justices said the first 
amendment did not raise that implication. They are opinions. With all 
due respect to the men and women who occupy the chambers of the Supreme 
Court, with the columns lining directly up with the Senate Chamber, 
having participated in my tenure in eight confirmation proceedings, 
their opinions are not inviolate. And their opinions are subject to 
modification. As our Constitution is written, they have the last word 
unless the provisions of the Constitution are followed to have a change 
and an amendment.
  When the Constitution was formulated, the Congress was in the first 
article, and I think the drafters of the Constitution thought that 
Congress was the primary article I body. The executive branch came in 
in article II. The Court came in in article III. There is nothing in 
the Constitution which says the Supreme Court of the United States has 
the power to invalidate an act of Congress. There is nothing in the 
Constitution which says that. But the Supreme Court of the United 
States, in 1803, in perhaps the most famous of all Supreme Court 
decisions, in Brown v. Board of Education--perhaps some others--said 
that the Supreme Court had that authority. I believe it was a wise 
decision because someone has to have the last word. But their 
pronouncements are not statements from the tabernacles, from the Ten 
Commandants, or Holy Writ. They are their opinions. It is a very tough 
mountain to climb to have this amendment adopted because it brings 
together a coalition of people who articulate the sanctity of the first 
amendment really misstating it as the sanctity of the opinions of the 
Justices.
  Buckley v. Valeo was a split decision. Those individuals, 
institutions, agencies, are combined with the people who want to 
maintain the money chase for elective office the way it is at the 
present time, so there is no doubt it is a very tough proposition.
  Go into the Cloakrooms of both parties and you find in common 
parlance the people who say they are for campaign finance reform really 
are not but say so because it will not pass. It is like the 
constitutional amendment for a balanced budget that requires 67 votes. 
There are people who say they are going to vote for it, but until it 
gets to 66, nobody will cast that 67th vote, so there is a fair amount 
of posturing on the issue before anything can be adopted.
  It is important to focus on the fact that this provision, this 
amendment, this change in the opinions of the Justices of the Supreme 
Court in Buckley v. Valeo does not adopt any specific kind of change in 
the campaign laws. It does not say what will happen to soft money, it 
does not say what will happen to corporate contributions, it does not 
say what will happen to the union money, it does not say what will 
happen to money of millionaires or billionaires.
  As we speak, there are campaigns underway for $25 million in one 
State in a primary. Is a seat in the Senate something that ought to be 
up for sale? I think $25 million for a primary is too high. Our seats 
ought not to be up for sale. There is too much of a public trust here 
for any individual to buy a seat in the Senate or the House of 
Representatives. That is the practical fact of life.
  When the Supreme Court of the United States decided Buckley v. 
Valeo--and it is one of the most challenging opinions to read; it goes 
on for 128 pages of single-spaced opinions--the Court said at one 
point:

       We agree that in order to preserve the provision against 
     invalidation on vagueness grounds, section 608(e)1 must be 
     construed to apply only to expenditures for communications 
     that in express terms advocate the election or defeat of a 
     clearly identified candidate for Federal office.

  Then they have a footnote which says: The Constitution would restrict 
the application to communications containing express words of advocacy 
of election or defeat such as ``vote for, elect, support, cast your 
ballot for, Smith for Congress, vote against, defeat, reject,'' et 
cetera.
  That interpretation, on what is called express advocacy, has led to 
extraordinary approval of political advertisements, so-called ``issue 
advertisements,'' not regulatable by campaign finance and which can be 
paid for by soft money which corporations or individuals or unions or 
anyone can put up in large amounts--millions of dollars.
  Let me read a couple of commercials from the 1996 election early on 
purchased with soft money, which really turned the election. This is 
not a Democrat issue or a Republican issue. Both sides comport 
themselves about the same.
  This is a commercial for President Clinton's reelection.

       American values. Do our duty to our parents. President 
     Clinton protects Medicare. The Dole/Gingrich budget tried to 
     cut Medicare $270 billion. Protect families. President 
     Clinton cut taxes for millions of working families. The Dole/
     Gingrich budget tried to raise taxes on eight million of 
     them. President Clinton proposes tax breaks for tuition. The 
     Dole/Gingrich budget tried to slash college scholarships. 
     Only President Clinton's plan meets our challenges, protects 
     our values.

  Could anybody with hearing and sanity say that is not an 
advertisement for President Clinton? The Supreme Court of the United 
States says it is not. That is an issue ad. Why? Because it doesn't say 
``elect Clinton.'' It doesn't say ``defeat Dole.'' But it says 
President Clinton protects Medicare. It says Dole-Gingrich tried to 
raise taxes on 8 million citizens.
  Try another one:

       60,000 felons and fugitives tried to buy handguns--but 
     couldn't--because President Clinton passed the Brady bill--
     five-day waits, background checks. But Dole and Gingrich 
     voted no. One hundred thousand new police because President 
     Clinton delivered. Dole and Gingrich? Vote no, want to repeal 
     'em. Strengthen school anti-drug programs. President Clinton 
     did it. Dole and Gingrich? No, again. Their old ways don't 
     work. President Clinton's plan. The new way. Meeting our 
     challenges, protecting our values.

  Try this one on for size:

       Protecting families. For millions of working families, 
     President Clinton cut taxes. The Dole-Gingrich budget tried 
     to raise taxes on eight million. The Dole-Gingrich budget 
     would have slashed Medicare 270 billion. Cut college 
     scholarships. The President defended our values. Protected 
     Medicare. And now, a tax cut of 1,500 a year for the first 
     two years of college. Most community colleges are free. Help 
     adults go back to school. The President's plan protects our 
     values.

  That is not a commercial for President Clinton, that is an issue 
advertisement, so says the law of the land handed down by the Supreme 
Court of the United States. To say it is ridiculous or to say it is 
outrageous or to say it is nonsensical, to say it is stupid is an 
understatement. Those are the laws we are operating under now.
  We face very determined opposition. I heard a lot of arguments about 
myths and facts, arguments that the Constitution's right to freedom of 
speech would be changed by what Senator Hollings and I and others are 
proposing. That is not so. It doesn't deal with the right to freedom of 
speech under the Constitution. It deals with campaign contributions and 
campaign expenditures.
  When you talk about a good bit of the legislation which is pending, 
it is not going to do the job even if it is enacted. Better to try than 
not to try, but if you are dealing with soft money, it is going to be 
rejected under the clear-cut language of Buckley v. Valeo on what is 
express advocacy contrasted with what is issue advocacy.
  The only way to get this job done is to adopt an amendment. We call 
it a constitutional amendment, but it really is not a constitutional 
amendment. It is not a constitutional amendment because it does not 
seek to change the words of the Constitution. It does not seek to 
change the words of the first amendment. It seeks only to say the 
opinions of the Justices in a split Court

[[Page S1733]]

are not correct. Those are men and women, not too dissimilar from 
Senator Hollings, a very distinguished lawyer who could have been on 
the Supreme Court if he had chosen to be on the Supreme Court. In a 
fact not widely known, you don't have to be a lawyer to be on the 
Supreme Court.
  Parenthetically, I tried to urge Senator Hatfield to become a Supreme 
Court Justice at one stage because I thought he had extraordinary 
qualifications, one of which was he wasn't a lawyer, but there are 
others who have different opinions.
  When you equate money with speech, Justice Stevens said in his 
concurring opinion in Nixon v. Shrink Missouri Government PAC: Money is 
property, it is not speech.
  It seems fundamental that in a democracy the power of a person with 
money is greater than the power of a person without money. The 
proportion of the power goes directly in line with how much money that 
person has. It is not good for America.
  Senator Hollings and I are going to be around for a while pushing 
this constitutional amendment. We may even push it until Senator 
Hollings is a senior Senator. He has only been here since 1966. He has 
a record of being the senior junior Senator in the history of the 
Senate. I say that only in a moment of light jest. We have a very 
distinguished senior Senator from South Carolina, Mr. Thurmond, who is 
the longest serving Senator in the history of the Senate.
  We intend to keep pushing this. The votes go up and down as the 
constituency of the Senate changes. We believe very strongly that we 
are right and that money is not speech. One day we will prevail.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. HOLLINGS. Mr. President, I thank my distinguished colleague from 
Pennsylvania. He is so learned in the law and so long on common sense. 
He just laid out what the situation is and how we are going about, in a 
very deliberate, constitutional way, repairing the tremendous damage 
done by Buckley v. Valeo.
  There is no question about the process being corrupted. He mentioned 
a minute ago that I have been here since 1966. I have been here when we 
have had everybody here at 5:30 and we would debate these things and, 
yes, on a Monday. But we do not meet on Mondays. Why? Because we have 
been corrupted by the money chase.
  I have gone to the leaders on both sides: Give me a window; how about 
seeing if we do not go late on Thursday night because I have to get 
back to South Carolina for a fundraiser. Every Senator has done it. We 
are not here on Monday. We are not here on Friday. In 1966 and 1967, 
under Senator Mansfield, I can tell you right now, we worked until late 
Friday afternoon and we reported back for rollcalls at 9 o'clock on 
Monday morning.
  We worked the full time. We worked the full months. We did not have 
January off and then another big break in February and another break in 
March and another break in April and another break in May-June and 
another break of a month in August. Why the breaks? To raise the money. 
If you are not raising it for yourself, you are supposed to go out and 
raise it for your colleagues.
  The whole process has been corrupted. Recognize it. We cannot get a 
bill. We cannot get debate. We cannot talk to each other. Nobody is 
here. They are not expected to be here. TV has corrupted that. If one 
wanted to know what was going on in the Chamber, they had to get out of 
their office and come to the floor. We always had 15 or 20 Members on 
one side and 20 or 30 Members on the other side listening and joining 
in, and we had debates on serious matters. We debated. The most 
deliberative body in the world was our reputation.
  Now we do not bring up a serious matter unless it is fixed. We cannot 
produce a budget unless the vote is fixed in the Budget Committee, and 
when they can get it through it is late Thursday evening, when it is 
quite obvious none of the amendments are going to be adopted. The vote 
is fixed. The jury is fixed. There is no deliberation. They will bring 
that up, and then they have fixed time on it.
  Go to the leader and say: We want to take up this measure, and it 
takes 3 or 4 days; and he will look at you as if you are stupid: Don't 
you know better, we don't have time to deliberate, we don't have time 
to debate.
  The system is corrupted. Get a life. Get along. Go out. Collect some 
money. After all, it is the money chase. We have to work for ourselves 
to stay in office or to keep our colleagues in office. That is the name 
of the game.
  Important issues, I can go down the list--but when they want money, 
oh, wait a minute, there is an exception. That sham, that fraud, that 
charade of Y2K. For 30 years, the computer industry had notice of the 
year 2000. For 30 years, they all could have changed. They still have 7 
months or so to change.

  There was a big debate. Why? Because the lawyers got the Chamber of 
Commerce to gin up Silicon Valley. The gentleman from Intel told me 
there was not a real problem, and everybody else said there was not a 
real problem. But we had a problem. It was a money chase for getting 
Silicon Valley's money in Y2K, and the media covered it: How much Bush 
had received, how much Gore had received, how much this group had 
received, and we continue to invite Silicon Valley here for special 
sessions. We are really interested.
  That is not middle America, and they are not going to create our 
industrial backbone. We admire their ingenuity and their talent. We are 
not jealous of the money. Let them all make millions. We just want our 
share.
  Y2K came, and we passed it. Nothing happened. In opposition to the 
States, in opposition to the States' supreme court justices, in 
opposition to the American Bar Association, we repealed 200 years of 
State tort law. Why? Because of the money. Why, we spent 4 days on that 
one. That was highly important. Just put up a straw man, knock it down, 
and then go home, boldly and proudly saying: Look what we have done; we 
took care of Y2K.
  Yet, on the other hand, if we have a real problem, they will not call 
it up. Why? On account of the money. I have a TV violence bill. There 
is no mystery to this. Europe, Australia, and New Zealand do not have 
children shooting each other in schools. They have a safe harbor 
practice so that violence appears on television after hours.
  I introduced the same thing, and it was in the Commerce Committee in 
the last two Congresses. Senator Dole was there. When he went out to 
the west coast, he came back and said: Oh, this is terrible. I said: 
Senator Dole, why don't you be the chief sponsor, you run it, you take 
credit for it. It has already been debated and we have had testimony on 
it, and it was reported out by a vote of 19-1 from the Commerce 
Committee. It is on the calendar. Call it.
  Oh, no, it wasn't called. We needed the Hollywood money. I have it on 
the calendar now. Again, we debated it. We brought out the study the 
industry conducted, and the motion picture industry itself found that 
violence was on the rise.
  It is a real problem in this country, but we talk a little bit here 
and there. When we want to get a tried and true approach and it is on 
the calendar, they say: Wait a minute, don't call that, let's not 
debate it.
  It is not called up because of the money. This attitude has corrupted 
the process, and we have a gang over there that loves the corruption. 
They come here with their octopus defense. I have seen it before. We 
used to try cases, and if you do not have the facts and you do not have 
the lawyer beaten on the desk, you squirt out that dark ink of freedom 
of speech, first amendment, 2,000 years, 20,000 amendments. This is a 
shocking thing.
  They were not shocked when the 1976 decision of Buckley v. Valeo came 
down because that decision is what amended the freedom of speech. It 
said: If you have the money, you have all the speech you want. If you 
don't have the money, you get lockjaw. Shut up. You don't have speech.
  In that Buckley v. Valeo decision, read what they said in this 
distortion: ``Money is property; it is not speech,'' said Justice 
Stevens.
  Then Justice Kennedy:

       The plain fact is that the compromise the Court invented in 
     Buckley set the stage for a new kind of speech to enter the 
     political system. It is covert speech.

  This is, of course, the famous case of Nixon v. Shrink, the most 
recent decision of this Court:


[[Page S1734]]


       The Court has forced a substantial amount of political 
     speech underground, as contributors and candidates devise 
     ever more elaborate methods of avoiding contribution limits, 
     limits which take no account of rising campaign costs. The 
     preferred method has been to conceal the real purpose of the 
     speech. . ..
       Issue advocacy, like soft money, is unrestricted, see 
     Buckley, supra, at 42-44, while straightforward speech in the 
     form of financial contributions paid to a candidate, speech 
     subject to full disclosure and prompt evaluation by the 
     public, is not. Thus has the Court's decision given us covert 
     speech. This mocks the First Amendment.

  That is what Justice Kennedy talks about. That is what I am talking 
about. Don't give me this: Freedom of speech and first amendment. What 
a shocking thing it is with that black ink like the octopus, putting up 
all the billboards about the freedom of the press and how people want 
editorial writers to be equally Democratic and Republican--what kind of 
nonsense is all of that? And what about getting up and saying: All I 
want is for you to register and vote.
  Quoting further:

       The current system would be unfortunate, and suspect under 
     the First Amendment, had it evolved from a deliberate 
     legislative choice; but its unhappy origins are in our 
     earlier decree in Buckley, which by accepting half of what 
     Congress did (limiting contributions) but rejecting the other 
     (limiting expenditures) created a misshapen system, one which 
     distorts the meaning of speech.

  The Senator from North Dakota said: Let's don't do it lightly. Let's 
don't amend the Constitution willy-nilly. I agree. But what about when 
you have a threat to the democracy, to the Republic itself, this 
corruption of the process here, where the Congress does nothing because 
of the money chase that we are in.
  Quoting further:

       The irony that we would impose this regime in the name of 
     free speech ought to be sufficient ground to reject Buckley's 
     wooden formula in the present case. The wrong goes deeper, 
     however. By operation of the Buckley rule, a candidate cannot 
     oppose this system in an effective way without selling out to 
     it first.

  We all have to sell out. I am running around trying to get money to 
help my colleagues right this minute.

       Soft money must be raised to attack the problem of soft 
     money.

  Listen to this sentence:

       In effect, the Court immunizes its own erroneous ruling 
     from change.

  Let me quote that one more time:

       In effect, the Court immunizes its own erroneous ruling 
     from change.

  That is why you need a constitutional amendment. That is why we are 
here. If you enjoy the corruption, if you want to continue on, not 
being able to debate anything around here, not having to amend, just 
going through the motions of arriving and going home, and getting 
another break and going home to collect some more money, and coming 
back and going back to collect more money, and acting as if you are 
doing the people's business--it is an embarrassment.

  They sure know embarrassment when they try to equate it with free 
speech, when they can jump on Vice President Gore and the Buddhist 
temple. The Christian right, that fellow Pat Robertson with the 
Christian right, I have had to face that insidious trickery in all of 
my campaigns--that Bob Jones crowd. I am glad it is out from under the 
radar.
  Let me tell you, it has been going on. I wish Senator McCain had had 
a chance to get organized in the State because that is the only way I 
survived. You have to sort of out-organize it. But they had Ralph Reed 
in there, and he had been working in there since last June. He had it 
all greased.
  They had the poor Senator from Arizona's family in the Mafia. They 
had him fathering illegitimate children. And he was in prison. They had 
him getting along with the North Vietnamese and going against the 
veterans. They had more dirty rumors--totally false--of anything you 
can think of. I mean, you never heard such things. He had no chance.
  The Christian right and Pat Robertson: They come on Sunday. They 
brag. I can show you the statement, 75 million leaflets. They come out 
and give them out to the church on Sunday morning. They distort your 
record, and everything else of that kind. You cannot answer because the 
vote is on Tuesday.
  He said he spent $500,000 carrying Virginia for George W. Bush. Pat 
Robertson, he gets respect. He's on TV. We think that is great. He is a 
bum, I can tell you. I know him. I knew his father Willis. He was a 
real gentleman. Willis Robertson was one of the finest gentlemen you 
would ever meet. That fellow is a scoundrel, whining and weaseling and 
dealing around.
  But then, of course, the poor Buddhists, they want to get in the act. 
There is nothing wrong with the Buddhists getting in the act. They tell 
me now what had happened is that this young lady, she had gotten 
contributions from everybody and then reimbursed them. They found her 
guilty of the--what?--contributions, not of free speech.
  See, when we find Johnny Huang guilty, that is in violation of the 
contribution laws. That is not free speech. That is money. Oh, boy, I 
wish I was a lawyer before the jury with that crowd.
  When they held the committee here with Charlie Trie, we had the 
Governmental Affairs Committee conduct the activities. I do not know 
how many months, but 70 witnesses, 200 witness interviews, 196 
depositions under oath, 418 subpoenas, with a final report published in 
1998 with six volumes, 9,575 pages--about contributions, not free 
speech.
  But now this afternoon, we pushed that aside. The Senator from Texas 
says, You Democrats have all the labor unions and we have the corporate 
money. However, in South Carolina, I don't have either one. So let me 
give you George W. Bush's statement on soft money, because he's an 
authority on the subject.
  This is on January 23. George Will, questioning Governor Bush:

       In which case would you veto the McCain-Feingold bill or 
     the Shays-Meehan bill?

  Governor Bush:

       That is an interesting question. Yes, I would. And the 
     reason why is two for one. And I think it does restrict--

  I am quoting it verbatim here as written.

     --free speech for individuals. As I understand how the bill 
     was written, I think there has been two versions of it. But 
     as I understand, the first version restricted individuals 
     and/or groups from being able to express their opinion. I've 
     always said that I think corporate soft money and labor union 
     soft money--which I do not believe is individual free speech, 
     this is collected free speech--ought to be banned.

  We have Vice President Gore. He got the message about the corruption. 
He said: The first thing I will do when I am your President is submit 
to Congress the McCain-Feingold bill.
  The people are tired of this political mess up here. I am tired of 
being a part of it. They will hear from me again and again. The reason 
you hadn't heard about it is that they forbid a joint resolution from 
coming up. I studied the calendar and waited for a joint resolution so 
that my joint resolution won't be objected to on a point of order. It 
is finally in order and so we can hear it. But then I had to go along 
or else I wouldn't have had a chance to introduce it at all because 
then they would have brought the flag amendment up and the cloture 
vote.
  So you bag around here, this most deliberative body, for an hour or 2 
hours to get some work done and nobody is here. Nobody wants to be here 
because they are supposed to be out raising money and having 
fundraisers and breakfasts in the morning and windows at lunchtime and 
in the evening. It's taking a few hours on Wednesday afternoon to call 
on behalf of your campaign committee and come up with thousands of 
dollars, your fair share. It is money, money, money, money. It is 
corruption.
  You tell me about the Washington Post; that crowd still calls the 
deficit a surplus. You tell me about the ACLU and all these other 
authorities running around and the scare tactics, that octopus defense, 
and the dark ink and all of those other irrelevant matters. We are 
talking sense. We are talking law. We are talking about what the 
Justices have just stated. There is no question why Justice Stevens 
said money is property and not speech. He was only one of the nine. The 
others could have gone along and reversed Buckley, and we would be out 
of this dilemma. We would go back to the original intent, which was to 
control spending. Now we are proudly hollering about this and that and 
freedoms, and now we are going to take the newspapers and do away with 
the editorialists and control

[[Page S1735]]

the press. This amendment doesn't use the word ``speech.'' It says 
``contributions.'' It is money. That is exactly what we have controlled 
throughout and that is what is intended.
  The Senator from Alabama, Mr. Sessions, stood up there and started 
reading this. He said that is limiting speech. It is not limiting 
speech. You can't limit speech. But you can limit the freedom of the 
contributions. You and I know that. That is what we are trying to do.
  Under the 1974 act that computed spending limits by the number of 
registered voters, Senator Thurmond and I would have had $670,000. 
Double that to a million or a half or give us 2.5 million. That is a 
gracious plenty. When I first ran for office I ran against a 
millionaire--a most respected gentleman, but he had the money. But we 
outworked him, just like we out-organized my opponent the year before 
last in South Carolina. That is why I am still here and able to talk.
  I don't buy cars in campaigns, but it was suggested that a lot of 
other candidates do. When they rent, lease, and then later buy a piece 
of property, all of that is not freedom of speech. That is money. It is 
contributions. It is where you ought to try to control the spending 
limits so we don't become a bunch of millionaires and instead go back 
to what Russell Long said: Every mother's son would be able to run for 
the highest office in the land.
  I could go on and on. The afternoon is late. To repeal the first 
amendment, the Senator from Washington turned to the Senator from 
Kentucky and said, read that word, that is to ``repeal'' the first 
amendment. Now, if you believe that, you go ahead and vote against 
this. But you know and I know, it is to repeal the corruption. That is 
what I am about; I am trying to repeal the corruption. I am trying to 
get back to the original intent. Yes, you might say we had 38 votes. I 
remember when we had 52 votes, a majority, for this. I remember when I 
had a dozen Republican cosponsors.
  I admire my colleague from Pennsylvania for sticking with me on this, 
making it bipartisan. But I don't know of another one over there, 
because they have been disciplined and put right into the trough and 
told: You stick with us. This is a party vote, and this is it. It is 
freedom of speech and don't you forget it.
  It is not freedom of speech. It is money. We are trying to control 
the purchase of the office. We are trying to correct the corruption. We 
are trying to get back to our work on behalf of the people, which is 
very difficult to do with the pressures now on Senators up here. It is 
disgraceful. It is absolutely disgraceful. Everybody knows it. I want 
somebody to contest it. They are not around. They are not going to 
contest it. They are going to make these comments about so many years 
and so many amendments and the freedom of speech and the hallowed 
document and everything else.
  I have gone down five of the last six amendments; all had to do with 
elections, less important than this corruption to be corrected, far 
less a threat. I admit, recognize, agree with the Senator from North 
Dakota that we shouldn't do it lightly, and we are not doing it 
lightly. If it was only a minor problem, whereby we could merely pass a 
statute, I would do it. But all of these statutes, McCain-Feingold, as 
the Senator from Kentucky has contended each time, is patently 
unconstitutional. You can tell from reading this most recent decision 
on soft money how they are equating everything with speech. You can see 
how they have immunized their mistake from change. Those are not my 
words. Those are Justice Kennedy's words. They have ``immunized'' their 
mistake from change.
  So we have to have a constitutional amendment. This is written very 
carefully, very deliberately, and very reasonably, where we don't take 
sides one way or the other, whether you are for or against McCain-
Feingold, whether you are for or against free TV time, whether you are 
for or against public financing, whether you are for or against your 
idea you have on campaign finance. This will constitutionalize it so we 
can quit this sham of beating around the bush. It is hit and run 
driving with a, yes, I am for reform, knowing good and well that the 
Court is going to throw it out when it gets there. So we can find out 
who is who and what is what. I understand that this corruption should 
cease.
  I want to complete the thought I was making with respect to various 
comments of the Senator from Washington, Mr. Gorton, who said they are 
being denied under the Hollings amendment the right to speak at all. 
Not so. The person being denied the right to speak at all in political 
campaigns is the individual without the money.
  Take a campaign against a very affluent or wealthy person, and they 
buy up all the time. At the end, you do not have the money to match it. 
The TV station calls you and says: Here are all of these time slots 
gotten by your opponent, and you have the right to equal it. I don't 
have the money. Before long, with all of the friends, the family says: 
Well, I don't understand why John doesn't answer him. He is not 
interested in this race. He is not working. He looks slovenly. Why? 
Because he doesn't have the money.
  That is the point. Right now, I am trying to prepare, along with the 
Senator from Pennsylvania, Mr. Specter, for being denied the right to 
speak at all. That is under the Buckley v. Valeo decision. If you have 
money, you can speak until the sky is the limit and for how long your 
money will take you. If you do not have the money, you have the right 
to get lockjaw, shut up, and sit down, that ends it, because 85 percent 
of your money goes to television and you are not there.
  The people do not know you are in the race. They keep talking about 
repealing the first amendment.
  The distinguished Senator from Utah, Mr. Bennett, said that limiting 
candidates would give special interests more power. It would create a 
vacuum, and the special interest would fill the vacuum. There isn't any 
vacuum, except for the poor. The special interests are in there to the 
tune of millions and millions. That is what we all know. We are trying 
to limit the special interests. We are not trying to create a vacuum 
they can fill.
  That is exactly the point of this particular amendment. You go over 
again and again. They raise these straw men of exactly the opposite of 
what is intended and what is provided for in the Hollings-Specter 
amendment; namely, to limit spending in Federal elections, and limit 
spending, of course, in State elections.
  With respect to the cases, I cited the case where the individual got 
caught trying to go around. I refer now to James W. Brosnan's article 
in The Commercial Appeal dated November 8, 1998.
  The indictment of Chattanooga developer Franklin Haney highlights 
what some campaign reformers believe could be a frequent, but hard to 
prove, crime--companies reimbursing their employees for contributions.
  The indictment charges that Haney and his administrative assistant, 
who was not named in the indictment, instructed company employees to 
make contributions of $1,000 apiece, filled out the donor cards 
themselves and then wrote Haney Company checks to reimburse the 
employees.
  I ask unanimous consent that the entire article be printed in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Commercial Appeal, Nov. 8, 1998]

                Funneling to Campaigns May Be Widespread

                         (By James W. Brosnan)

       The indictment of Chattanooga developer Franklin Haney 
     highlights what some campaign reformers believe could be a 
     frequent, but hard to prove, crime--companies reimbursing 
     their employees for contributions.
       ``I suspect it is a lot more widespread than foreign donors 
     trying to press dollars into the hands of American 
     politicians,'' said Larry Makinson, executive director of the 
     Center for Responsive Politics, a campaign watchdog group.
       Haney Wednesday became the 14th person indicted by the 
     Justice Department's campaign finance task force. He is 
     charged with 42 counts of using his company's employees, 
     friends and relatives to make $86,500 in illegal corporate 
     contributions to the Clinton-Gore campaigns in 1992 and 1995, 
     and the Senate campaigns of former Tennessee Sen. Jim Sasser 
     and former Tennessee congressman Jim Cooper in 1994.
       Haney has said he is innocent. The Justice Department said 
     none of the campaigns were aware of the deception. Sasser--
     who lost to Sen. Bill Frist (R-Tenn.) and became U.S. 
     ambassador to China--said in a statement: ``Although I myself 
     am not under investigation, I will of course cooperate 
     fully.''
       In recent testimony before the House Commerce oversight 
     subcommittee, Sasser depicted Haney as someone eager to show 
     his

[[Page S1736]]

     credentials around Washington by hiring people like Sasser 
     and long-time Democratic fund-raiser Peter Knight. 
     Wednesday's indictment also describes someone who was willing 
     to violate the law in order to make good on his pledge to 
     raise $50,000 for the Clinton-Gore committee.
       The indictment charges that Haney and his administrative 
     assistant, who was not named in the indictment, instructed 
     company employees to make contributions of $1,000 apiece, 
     filled out the donor cards themselves and then wrote Haney 
     Co. checks to reimburse the employees.
       Justice Department officials indicate they discovered the 
     illegal contribution scheme when Haney came on their radar 
     screen because of reports concerning his hiring of Knight and 
     Sasser. They represented him in efforts to obtain a 
     government lease and private financing for the Portals office 
     complex here.
       House Republicans have charged that the fees paid by Haney, 
     $1 million to Knight and $1.8 million to Sasser, may have 
     been illegal contingency fees. Government contractors may not 
     pay lobbyists based on whether a contract is awarded. The 
     Justice Department continues to investigate the Portals 
     lease.
       Campaign finance experts say illegal corporate 
     contributions are seldom discovered unless a company employee 
     blows the whistle or the company comes under scrutiny for 
     another matter.
       ``It's a scheme which is extremely difficult to uncover,'' 
     said Ellen Miller, executive director of Public Campaign, a 
     group which supports public financing of campaigns.
       Gary Burhop, the lobbyist for Memphis-based Harrah's Inc., 
     said he doubts it's a frequent practice.
       ``If it happens, it happens more out of ignorance than a 
     willful desire to violate the law,'' said Burhop, based on 
     his observation of cases before the Federal Election 
     Commission.
       Larry Sabato, a University of Virginia political scientist 
     who has studied campaign finance laws for 25 years, said he 
     doesn't believe the practice ``is widespread, but I don't 
     think they catch everybody who does it, either. It's very 
     difficult to catch unless somebody snitches. You have a know 
     who to target.''
       Haney's indictment was the second brought by the campaign 
     finance task force. On September 30, Mark Jimenez 52, of 
     Miami, the chief executive officer of Miami-based Future Tech 
     International, was charged with funneling $23,000 into the 
     Clinton-Gore campaign, and $16,500 into four other Democratic 
     campaigns, from his company and another controlled by a 
     relative.
       Two companies have been prosecuted by local U.S. attorneys 
     for using straw donors to make illegal contributions to the 
     1996 presidential campaign of former Kansas Republican Bob 
     Dole.
       Simon Fireman, a national vice chairman of Dole's campaign, 
     funneled $100,000 into Dole's campaign using employees of his 
     company, Aqua Leisure Industries of Avon, Mass. He paid a $6 
     million fine.
       Empire Sanitary Landfill of Scranton, Pa., pleaded guilty 
     to contributing $110,000 to the Dole and other Republican 
     campaigns through employees and paid an $8 million fine.
       Independent counsel Donald Smaltz was appointed to 
     investigate football game tickets and other gifts to former 
     Agriculture secretary Mike Espy, but his four-year probe has 
     produced six convictions for illegal corporate campaign 
     contributions.
       In one case, lobbyist Jim Lake arranged for $5,000 in 
     contributions to the 1994 Mississippi congressional campaign 
     of Espy's brother, Henry Espy, and then padded his expense 
     account to get the money back. He was fined $150,000 and 
     ordered to write and send descriptions of the campaign 
     finance law to 2,000 lobbyists.
       In another, New Orleans attorney Alvarez Ferrouilet was 
     sentenced to one year in prison for disguising $20,000 in 
     illegal contributions to Espy.
       The other cases have resulted in fines of $1.5 million 
     against Sun-Diamond Growers, $480,000 against Sun-Land 
     Products $80,000 against American Family Life Assurance Co., 
     and $2 million against Crop Growers Corp.

  Mr. HOLLINGS. Mr. President, this is the pertinent part.
  Simon Fireman, a national vice chairman of Dole's campaign, funneled 
$100,000 into Dole's campaign using employees of his company, Aqua 
Leisure Industries of Avon, MA. He paid a $6 million fine.
  Empire Sanitary Landfill of Scranton, PA, pleaded guilty to 
contributing $110,000 to Dole and other Republican campaigns through 
employees and paid an $8 million fine.
  Independent counsel Donald Smaltz was appointed to investigate Mike 
Espy, which we all know about.
  I don't know what happened to Haney, or whether or not he was found 
innocent. But let's assume so. I am not trying to disparage. I am just 
trying to say here is the corruption that actually goes on.
  In one case, lobbyist Jim Lake arranged for a $5,000 contribution to 
the 1994 Mississippi congressional campaign of Espy's brother and then 
padded his expense account to get the money back. He was fined $150,000 
and ordered to write and send descriptions of the campaign finance law 
to 2,000 lobbyists.
  Another New Orleans attorney, Alvarez Ferrouilet, was sentenced to 1 
year in prison for disguising $20,000 in illegal contributions to Espy.
  The other cases have resulted in fines of $1.5 million against Sun-
Diamond Growers, $480,000 against Sun-Land Products, $80,000 against 
American Family Life Assurance Company, and $2 million against the Crop 
Growers Corporation.
  This corruption is rampant, and you can't stop it unless you get this 
constitutional amendment. Everyone understands what Justice Kennedy 
said--that you are not going to have this covert speech. You are not 
going around, and you are not going to employees, because the name of 
the game is--I know because I ran for President. I know one State that 
I believe I could have taken, but the one who succeeded in taking it 
spent x thousands of dollars above the limit. It was 2 years later they 
found out that he spent over the limit. That was the end of that.
  What I am saying is, you can't control this. It is a Federal election 
campaign practices commission because it is all ex post facto. It is 
lost in the dust.
  This has been going on, particularly with you and I serving in the 
Senate. We can't talk sense, we can't debate, we can't get measures up, 
and we can't deliberate because we have been corrupted by the money 
chase.
  Mondays and Fridays, gone; Tuesday morning, gone; windows here and 
there and yonder for lunches, dinners, fund raisers, breaks now every 
month of the year. Why: They go raise some more money, and we are not 
getting the work of the people done.
  I was here when it worked, when we met at 9 o'clock on Monday 
morning. Nobody was here at 9 o'clock this Monday morning. Nobody is 
here now because they are all out raising money. I can tell you, we 
worked until Friday afternoon at 5 o'clock. Ask Senator Byrd. He 
remembers. He knows how hard we worked in those days when he was 
leader.
  But the system and the Buckley v. Valeo cancer are overtaking all of 
us. We are all part of it. I have asked for windows, and I have had to 
chase at holidays. I continue to do so. I am saying to myself and to 
all of us that it is time we sort of fess up and understand that this 
has to stop. We have to start working on behalf of the people and not 
ourselves. Let's do away with the corruption. Let's get back to the 
original intent of Buckley v. Valeo, which was totally bipartisan and 
overwhelmingly passed. That was to limit spending or stop the buying of 
the office.
  We had that enough in 1978, which I explained because I know what was 
called upon in cash moneys in my particular State. It was listed all 
over the country. Connolly asked the President, and he went down to 
collect. They put up with Dick Tuck in the Brinks truck as it turned 
into the ranch in order to have the barbecue so the President could 
thank his contributors whom he had not even met.
  We all were so embarrassed. It is bad when there is not even any 
embarrassment in this body. The corruption is exacerbated. I learned 
that word having come to Washington--``exacerbate.'' It continues to 
exacerbate, and it gets worse and worse.
  I yield back the remainder of our time, and I suggest the absence of 
a quorum.
  The PRESIDING OFFICER (Mr. Fitzgerald). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             cloture motion

  Mr. SESSIONS. Mr. President, on behalf of the leader, it is the 
leader's hope and intention to have a final vote on the pending 
concurrent resolution before the Senate adjourns on Tuesday, March 28. 
However, if a consent agreement cannot be reached, a cloture vote will 
occur on Wednesday morning. With that in mind, I send a cloture motion 
to the desk and ask for its immediate consideration.

[[Page S1737]]

  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Calendar No. 98, 
     S. J. Res. 14, an amendment to the Constitution of the United 
     States authorizing the Congress to prohibit the physical 
     desecration of the flag of the United States.
         Trent Lott, Orrin Hatch, Bill Roth, Peter Fitzgerald, Rod 
           Grams, Ted Stevens, Chuck Hagel, Thad Cochran, Paul 
           Coverdell, Pat Roberts, Phil Gramm, Frank H. Murkowski, 
           Don Nickles, Bob Smith of New Hampshire, Susan Collins, 
           and Tim Hutchinson.

  Mr. SESSIONS. It is the leader's hope the final vote will occur 
tomorrow. However, if this cloture vote is necessary, I now ask consent 
it occur at 10 a.m. on Wednesday and the mandatory quorum under rule 
XXII be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________