[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
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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
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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.
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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:
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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
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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.
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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
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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
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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
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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.
____________________