Congressional Record, Volume 146 Issue 36 (Tuesday, March 28, 2000)

[Congressional Record Volume 146, Number 36 (Tuesday, March 28, 2000)]
[Senate]
[Pages S1765-S1793]
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
resume consideration of 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.

Pending:

McConnell amendment No. 2889, in the nature of a
substitute.
Hollings amendment No. 2890, to propose an amendment to the
Constitution of the United States relating to contributions
and expenditures intended to affect elections.

Mr. ASHCROFT. Mr. President, I rise today in support of the proposed
amendment to the United States Constitution to permit Congress to
prevent the desecration of our greatest national symbol: the American
flag. I want to thank Chairman Hatch for his leadership on this
important issue. Last year, Senator Hatch, on behalf of myself and many
others, introduced S.J. Res. 14, a constitutional amendment to
authorize Congress to protect the flag through appropriate legislation.
Since 1998, the Judiciary Committee has held four hearings on this
issue. I am pleased that this resolution now has 58 Senate sponsors. In
addition, the House of Representatives has already passed an identical
resolution, H.J. Res. 33, on June 24, 1999, by a vote of 305 to 124.
Throughout our history, the flag has held a special place in the
hearts and minds of Americans. Even as the appearance of the flag has
changed with the addition of new stars to reflect our

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growing nation, its meaning to the American people has remained
constant. The American flag symbolizes an ideal for Americans, and or
all those who honor the great American experiment. It represents
freedom, sacrifice, and unity. It is a symbol of patriotism, of loved
ones lost, and of the American way of life. The flag stands in this
Chamber, in our court rooms, and in front of our houses; it is draped
over our honored dead; and it flies at half-mast to mourn our heroes.
It is the subject of our national anthem, our national march and our
Pledge of Allegiance. In short, the flag embodies America itself. I
believe that our nation's symbol is a unique and important part of our
heritage and culture, a symbol worthy of respect and protection.
This is not a new perspective. The American flag has enjoyed a long
history of protection from desecration. Chief Justice Harlan, upholding
a 1903 Nebraska statute proscribing use of the Flag in advertisements
states,

[To] every true American the Flag is a symbol of the
nation's power--the emblem of freedom in its truest, best
sense. It is not extravagant to say that to all lovers of the
country it signifies government resting on the consent of the
governed; liberty regulated by law; the protection of the
weak against the strong; security against the exercise of
arbitrary power; and absolute safety for free institutions
against foreign aggression. Halter v. Nebraska, 205 U.S. 34,
41 (1907).

It is for these reasons that Americans overwhelmingly support
preserving and protecting the American flag. During a hearing I chaired
in March 1998, entitled ``The Tradition and Importance of Protecting
the United States Flag,'' the witnesses noted that an unprecedented 80
percent of the American people supported a constitutional amendment to
protect the flag. Recent polls show that support unchanged. In
addition, the people's elected representatives reflected that vast
public support by enacting flag protection statutes at both the State
and Federal levels. In fact, 49 State legislatures have passed
resolutions asking Congress to send a constitutional amendment to the
States for ratification.

Regrettably, the Supreme Court has chosen instead to impose the
academic and elitist values of Washington, DC, on the people, instead
of permitting and upholding the values that people attempted to demand
of their government. In 1989, the Supreme Court ignored almost a
century of history and thwarted the people's will in the case of Texas
v. Johnson by holding that the American flag is just another piece of
cloth for which no minimum of respect may be demanded.
In response, the Congress swiftly attempted to protect the flag by
means of a statue, the Flag Protection Act of 1989, only to have that
statute also struck down by the Supreme Court in United States v.
Eichman. In 1989, 1990 and 1995 the Senate voted on proposed
constitutional amendments to allow protection of the flag--and each
time the proposal gained a majority of votes, but not the necessary
two-thirds super-majority needed to send the amendment to the States
for ratification. And so we are here today to try again.
Critics of this measure urge that it will somehow weaken the rights
protected by the first amendment. I would draw their attention to the
long standing interpretation of the first amendment prior to Texas v.
Johnson. At the time of the Supreme Court's decision, the tradition of
protecting the flag was too firmly established to suggest that such
laws are inconsistent with our constitutional traditions. Many of the
state laws were based on the Uniform Flag Act of 1917. No one at that
time, or for 70 years afterwards, felt that these laws ran afoul of the
first amendment. Indeed, the Supreme Court itself upheld a Nebraska
statute preventing commercial use of the flag in 1907 in Halter v.
Nebraska. As Chief Justice Rhenquist noted in his dissent in Texas v.
Johnson, ``I cannot agree that the First Amendment invalidates the Act
of Congress, and the laws of 48 of the 50 States which make criminal
the public burning of the flag.''
Mr. President, I also reject the notion that amending the
Constitution to overrule the Supreme court's decisions in the specific
context of desecration of the flag will somehow undermine the first
amendment as it is applied in other contexts. This amendment does not
create a slippery slope which will lead to the erosion of Americans'
right to free speech. The flag is wholly unique. It has no rightful
comparison. An amendment protecting the flag from desecration will
provide no aid or comfort in any future campaigns to restrict speech.
Moreover, an amendment banning the desecration of the flag does not
limit the content of any true speech. As Justice Stevens noted in his
dissent in Texas v. Johnson, ``[t]he concept of `desecration' does not
turn on the substance of the message the actor intends to convey, but
rather on whether those who view the act will take serious offense.''
Likewise, the act of desecrating the flag does not have any content in
and of itself. The act takes meaning and expresses conduct only in the
context of the true speech which accompanies the act. And that speech
remains unregulated. As the Chief Justice noted, ``flag burning is the
equivalent of an inarticulate grunt or roar that, it seems fair to say,
is most likely to be indulged in not to express any particular idea,
but to antagonize others.''
But what if we fail to act? What is the legacy we are leaving our
children? At a time when our nation's virtues are too rarely extolled
by our national leaders, and national pride is dismissed by many as
arrogance, America needs, more than ever, something to celebrate. At a
time when too many Americans have lost respect because of disrespectful
actions of elected leaders, we need a national symbol that is beyond
reproach. At a time when Hollywood, which once inspired Americans with
Capra-esque tales of heroism, integrity, and national pride, now
bestows its highest honors on works that glorify the dysfunctional, the
miserable, the materialistic, and the amoral. America needs its flag
untainted, representing more than some flawed agenda, but this
extraordinary nation. The flag, and the freedom for which it stands,
has a unique ability to unite us as Americans.
In sum, there is no principal or fear that should stand as an
obstacle to our protection of the flag. The American people are seeking
a renewed sense of purpose and patriotism. They want to protect the
uniquely American symbol of sacrifice, honor and freedom. The genius of
our democracy is not that the values of Washington would be imposed on
the people, but that the values of the people would be imposed on
Washington. I urge my colleagues to join me in letting the values of
the American people affect the work we do here. It is my earnest hope
that by amending the Constitution to prohibit its desecration, this
body will protect the heritage, sacrifice, ideals, freedom, and honor
that the flag uniquely represents.
Mr. HAGEL. Mr. President, I rise today to speak I support of the
joint resolution, introduced by my distinguished colleague from Utah,
Senator Orrin Hatch, proposing an amendment to the Constitution
authorizing Congress to prohibit physical desecration of the American
flag.
From the birth of our nation, the flag has represented all that is
good and decent about our country. On countless occasions, on
battlefields across the world, the Stars and Stripes led young
Americans into battle. For those who paid the ultimate price for our
nation, the flag blanketed their journey and graced their final resting
place.
Mr. President, the Flag is not just a piece of cloth. It is a symbol
so sacred to our nation that we teach our children not to let it touch
the ground. It flies over our schools, our churches and synagogues, our
courts, our seats of government, and homes across America. It unites
all Americans regardless of race, creed or color. The flag is not just
a symbol of America, it is America.
Those who oppose this constitutional amendment say it impinges on
freedom of speech and violates our Constitution. As a veteran who was
wounded twice in Vietnam protecting the principles of freedoms that
Americans hold sacred, I am a strong supporter of the first amendment.
However, I believe this is a hollow argument. There are many limits
placed on ``free speech,'' including limiting yelling ``fire'' in a
crowded theater. Other freedoms of speech and expression are limited by
our slander and libel laws.
In 1989 and 1990 the Supreme Court struck down flag protection laws
by

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narrow votes. The Court has an obligation to protect and preserve our
fundamental rights as citizens. But the American people understand the
difference between freedom of speech and ``anything goes.''
When citizens disagree with our national policy, there are a number
of options available to them other than destroying the American Flag to
make their point. Let them protest, let them write to their newspaper,
let them organize, let them march, let them shout to the rooftops--but
we should not let them burn the flag. Too many have died defending the
flag for us to allow it be used in any way that does not honor their
sacrifice.
Mr. President, in a day where too often we lament what has gone wrong
with America, it's time to make a stand for decency, for honor and for
pride in our nation. I urge my colleagues to support the flag
amendment. Mr. President, I yield the floor.
Mr. GORTON. Mr. President, with some hesitancy I will vote in favor
of the flag protection constitutional amendment. My hesitancy stems not
from any doubt that our Nation should provide specially protected
status to our flag--I firmly believe the flag should be protected from
desecration. I am hesitant because we are voting to amend our Nation's
Constitution and every Senator should exercise extreme caution when
considering such changes.
I have given careful consideration on the important amendment
currently before the Senate. A decade ago, when the Supreme Court
issued its 5-to-4 decision invalidating flag desecration statutes, I
read each of the three opinions filed by Justices of the Court. I was
convinced then, and remain convinced now, that the Court erred in its
decision and that such statutes, if properly written, are
constitutional. For this reason, I shall vote in favor of both the
constitutional amendment to protect our flag and the proposed amendment
to substitute a flag protection statute for the constitutional
amendment.
Mr. JEFFORDS. Mr. President, I rise today to discuss my thoughts on a
constitutional amendment to ban flag burning and other acts of
desecration.
As a veteran of 30 years in the United States Navy and United States
Naval Reserve, I know the pride members of the Armed Forces have in
seeing the United States flag wherever they may be in the world. I
share the great respect most Vermonters and Americans have for this
symbol.
I personally abhor the notion that anyone would choose to desecrate
or burn the flag as a form of self-expression. Members of the Armed
Services place their lives at risk to defend the rights guaranteed by
the United States Constitution, including the First Amendment freedom
of speech. It is disrespectful of these past and present sacrifices to
desecrate this symbol.
It seems highly ironic to me that an individual would desecrate the
symbol of the country that provides freedoms such as the first
amendment freedom of speech. However, in my opinion the first amendment
means nothing if it is not strong enough to protect the rights of those
who express unpopular ideas or choose a distasteful means of this
expression.
I have given this issue a great deal of thought. I must continue to
oppose this amendment since I do not think that a valid constitutional
amendment, one that does not infringe on the first amendment, can be
crafted. The first amendment right of freedom of speech is not an
absolute right though as we have in the past recognized the legitimacy
of some limits on free speech.
I do not think, however, that we should open the Bill of Rights to
amendment for the first time in our history unless our basic values as
a nation are seriously threatened. In this case, in recent years there
have not been a significant number of incidents of this misbehavior.
In my view, a few flag desecrations or burnings around the Nation by
media-seeking malcontents does not meet this high standard and I
therefore cannot support the adoption of this amendment.
Mr. HUTCHINSON. Mr. President, as an original cosponsor, I rise today
in support of S.J. Res. 14, which would amend the United States
Constitution to prohibit the desecration of our flag. Opponents to this
measure contend that the right to desecrate the flag is the ultimate
expression of speech and freedom. I reject the proposition as I believe
that the desecration of our flag is a reprehensible act which should be
prohibited. It is an affront to the brave and terrible scarifies made
by millions of American men and women who willingly left their limbs,
lives, and loved ones on battlefields around the world.
It is an affront to these Americans who have given the greatest
sacrifices because of what the flag symbolizes. To explain what our
flag represents, former United States Supreme Court Chief Justice
Charles Evans Hughes in his work, ``National Symbol,'' said.

The Flag is the symbol of our national unity, our national
endeavor, our national aspiration.
The flag tells of the struggle for independence, of union
preserved, of liberty and union one and inseparable, of
the sacrifices of brave men and women to whom the
ideals and honor of this nation have been dearer than
life.
It means America first; it means an undivided allegiance.
It means America united, strong and efficient, equal to her
tasks.
It means that you cannot be saved by the valor and devotion
of your ancestors, that to each generation comes it
patriotic duty; and that upon your willingness to
sacrifice and endure as those before you have
sacrificed and endured rests the national hope.
It speaks of equal rights, of the inspiration of free
institutions exemplified and vindicated, of liberty
under law intelligently conceived and impartially
administered. There is not a thread in it but scorns
self-indulgence, weakness, and rapacity.
It is eloquent of our community interests, outweighting all
divergencies of opinion, and of our common destiny.

Former President Calvin Coolidge, echoed Chief Justice Hughes in
``Rights and Duties.''

We do honor to the stars and stripes as the emblem of our
country and the symbol of all that our patriotism
means.
We identify the flag with almost everything we hold dear on
earth.
It represents our peace and security, our civil and political
liberty, our freedom of religious worship, our family,
our friends, our home.
We see it in the great multitude of blessings, of rights and
privileges that make up our country.
But when we look at our flag and behold it emblazoned with
all our rights, we must remember that it is equally a
symbol of our duties.
Every glory that we associate with it is the result of duty
done. A yearly contemplation of our flag strengthens
and purifies the national conscience.

Given what our flag symbolizes, I find that incomprehensible that
anyone would desecrate the flag and inexplicable that our Supreme Court
would hold that burning a flag is protected speech rather than conduct
which may be prohibited. I find it odd that one can be imprisoned for
destroying a bald eagle's egg, but may freely burn our nation's
greatest symbol. Accordingly, I urge my colleagues to pass S.J. Res. 14
so that our flag and all that it symbolizes may be forever protected.
Ms. SNOWE. Mr. President, as an original cosponsor of S.J. Res. 14, I
am proud to rise in support of the proposed constitutional amendment
granting Congress the power to prohibit the physical desecration of the
flag of the United States. Last June, the House of Representatives
passed an identical resolution by the requisite two-thirds vote margin,
so I urge that my colleagues in the Senate also pass this resolution
with similar bipartisan support and send the proposed amendment to the
states for ratification.
Our flag occupies a truly unique place in the hearts of millions of
citizens as a cherished symbol of freedom and democracy. As a national
emblem of the world's greatest democracy, the American flag should be
treated with respect and care. Our free speech rights do not entitle us
to simply consider the flag as ``personal property'', which can be
treated any way we see fit including physically desecrating it as a
legitimate form of political protest.
We debate this issue at a very special and important time in our
nation's history.
This year marks the 55th anniversary of the allies' victory in the
Second World War. And, fifty-nine years ago, Japanese planes launched
an attack on Pearl Harbor that would begin American participation in
the Second World War.
During that conflict, our proud marines climbed to the top of Mount
Suribachi in one of the most bloody battles of the war. No less than
6,855 men died to put our American flag on

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the mountain. The sacrifice of the brave American soldiers who gave
their life on behalf of their country can never be forgotten. This
honor and dedication to country, duty, freedom and justice is enshrined
in the symbol of our Nation--the American flag.
The flag is not just a visual symbol to us--it is a symbol whose
pattern and colors tell a story that rings true for each and every
American.
The 50 stars and 13 stripes on the flag are a reminder that our
nation is built on the unity and harmony of 50 states. And the colors
of our flag were not chosen randomly: red was selected because it
represents courage, bravery, and the willingness of the American people
to give their life for their country and its principles of freedom and
democracy; white was selected because it represents integrity and
purity; and blue because it represents vigilance, perseverance, and
justice.
Thus, this flag has become a source of inspiration to every American
wherever it is displayed.
For these reasons and many others, a great majority of Americans
believe--as I strongly do--that the American flag should be treated
with dignity, respect and care--and nothing less.
Unfortunately, not everyone shares this view.
In June of 1990, the Supreme Court ruled that the Flag Protection Act
of 1989, legislation adopted by the Congress in 1989 generally
prohibiting physical defilement or desecration of the flag, was
unconstitutional. This decision, a 5-4 ruling in U.S. v. Eichman, held
that burning the flag as a political protest was constitutionally-
protected free speech.
The Flag Protection Act had originally been adopted by the 101st
Congress after the Supreme Court ruled in Texas v. Johnson that
existing Federal and state laws prohibiting flag-burning were
unconstitutional because they violated the first amendment's provisions
regarding free speech.
I profoundly disagreed with both rulings the Supreme Court made on
this issue. In our modern society, there are still many different
forums in our mass media, television, newspapers and radio and the
like, through which citizens can freely and fully exercise their
legitimate, constitutional right to free speech, even if what they have
to say is overwhelmingly unpopular with a majority of American
citizens.
Accordingly, in 1995, I also joined as an original cosponsor of a
proposed constitutional amendment granting Congress the power to
prohibit the physical desecration of the flag of the United States.
Although the House of Representatives easily passed that resolution by
the necessary two-thirds vote margin, the Senate fell a mere three
votes short.
I am hopeful that today's effort will deliver the three additional
votes that are needed to send this proposed amendment to the states for
ratification. Of note, prior to the Supreme Court's 1989 Texas v.
Johnson ruling, 48 states, including my own state of Maine, and the
Federal government, had anti-flag burning laws on their books for
years--so it's time the Congress gave the states the opportunity to
speak on this issue directly.
Mr. President, whether our flag is flying over a ball park, a
military base, a school or on a flag pole on Main Street, our national
standard has always represented the ideals and values that are the
foundation this great nation was built on. And our flag has come not
only to represent the glories of our nation's past, but it has also
come to stand as a symbol for hope for our nation's future.
Let me just state that I am extremely committed to defending and
protecting our Constitution--from the first amendment in the Bill of
Rights to the 27th amendment. I do not believe that this amendment
would be a departure from first amendment doctrine.
I strongly urge my colleagues to uphold the great symbol of our
nationhood by supporting the flag amendment.
Thank you, Mr. President. I yield the floor.
Mr. WARNER. Mr. President, I rise today in support of S.J. Res. 14.
This important joint resolution calls for an amendment to the United
States Constitution that would allow the United States Congress to
prohibit the physical desecration of the flag of the United States.
For years now I have been among the strongest supporters in the
United States Senate of amending the United States Constitution to
allow Congress to prohibit physical desecration of the United States
flag. I was pleased the House of Representatives overwhelmingly passed
a resolution identical to S.J. Res. 14 on June 24, 1999, by a vote of
305-124, and I look forward to voting for S.J. Res. 14 in the near
future.
In 1989, the United States Supreme Court, in a 5-4 decision in the
case of Texas v. Johnson, stated that the First Amendment prevented a
state from protecting the American flag from acts of physical
desecration. Since that time, a number of individuals have sought to
seize on this misguided Supreme Court decision to justify flag burning.
Mr. President, why would any citizen, who wishes to continue enjoying
the great privileges of being an American, need a legal right to burn
our Nation's flag in public?
No amount of tortured legal argumentation can overcome common sense
and the plain meaning of the First Amendment. The first amendment to
the Constitution states that no law shall abridge the ``freedom of
speech.'' The key word in this portion of the amendment is ``speech.''
Laws that do not abridge ``speech'' are not prohibited by this section
of the amendment. Simply put, burning the United States flag is not
speech. A flag is not burned with words. Rather, a flag is burned with
fire. As such, burning a flag is more appropriately classified as
conduct, which is not protected by the first amendment.
The proposition that our greatness as a nation rests on whether or
not an individual is permitted to burn Old Glory simply does not add
up. At a time in our national history when disparate influences appear
to be dividing people, the American flag represents unity. During the
American Revolution, and subsequent conflicts, the flag has unified our
diverse nation. Our flag symbolizes the freedoms we enjoy everyday.
Generations of Americans have gone forth from our shores to stop
enemies abroad from taking away these freedoms.
In addition, our great nation has always used the flag to honor those
who, proudly in the uniform of our military, made great sacrifices.
These are startling statistics that tend to be forgotten with the
passage of time: World War II, 406,000 U.S. service members killed;
Korea 55,000 U.S. service members killed; Vietnam, 58,100 U.S. service
members killed, and Persian Gulf, 147 U.S. service members killed. For
all those who gave their life, let us not forget that their caskets
were draped in our flag as the final expression of our nation's
thankfulness.
The memory and honor of those who have fought under our flag demands
that our flag be protected against reckless conduct presenting itself
as ``free speech.''

Amendment No. 2890

The PRESIDING OFFICER. Under the previous order, there will now be up
to 2 hours of debate on the Hollings amendment No. 2890, to be equally
divided in the usual form between the Senator from Kentucky, Mr.
McConnell, and the Senator from South Carolina, Mr. Hollings.
The Senator from South Carolina, Mr. Thurmond, is recognized.
Mr. THURMOND. Mr. President, I rise today to express my strong
support for Senate Joint Resolution 14, the constitutional amendment to
protect the flag of the United States. I believe it is vital that we
enact this amendment without further delay.
We have considered this issue in the Judiciary Committee and on the
Senate Floor many times in the past decade. I have fought to achieve
protection for the flag ever since the Supreme Court first legitimized
flag burning in the case of Texas v. Johnson in 1989.
The American flag is much more than a piece of cloth. During moments
of despair and crisis throughout the history of our great Nation, the
American people have turned to the flag as a symbol of national unity.
It represents our values, ideals, and proud heritage. There is no
better symbol of freedom and democracy in the world than our flag. As
former Senator Bob Dole said a few years ago, it is the one symbol that
brings to life the Latin phrase that appears in front of me in

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the Senate Chamber, e pluribus unum, which means, ``out of many, one.''
Ever since the American Revolution, our soldiers have put their lives
on the line to defend what the flag represents. We have a duty to honor
their sacrifices by giving the flag the protection it once had, and
clearly deserves today.
In our history, the Congress has been very reluctant to amend the
Constitution, and I agree with this approach. However, the Constitution
provides for a method of amendment, and there are a few situations
where an amendment is warranted. This is one of them.
The only real argument against this amendment is that it interferes
with an absolute interpretation of the free speech clause of the first
amendment. However, restrictions on speech already exist through
constitutional interpretation. In fact, before the Supreme Court ruled
on this issue, the Federal government and the States believed that flag
burning was not constitutionally protected speech. The Federal
government and almost every state had laws prohibiting desecration that
were thought to be valid before the Supreme Court ruled otherwise in
1989.
Passing this amendment would once again give the Congress the
authority to protect the flag from physical desecration. It would not
reduce the Bill of Rights. It would simply overturn a few very recent
judicial decisions that rejected America's traditional approach to the
flag under the law.
Flag burning is intolerable. We have no obligation to permit this
nonsense. Have we focused so much on the rights of the individual that
we have forgotten the rights of the people?
I strongly urge all my colleagues to join with us today and support
this amendment. We are on the side of the American people, and I am
firmly convinced that we are on the side of what is right. Once and for
all, we should pass this constitutional amendment and give the flag of
the United States of America the protection it deserves.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I want to make remarks generally on the
flag amendment. Frankly, I think it is a travesty on this
constitutional amendment to bring up campaign finance reform as a
constitutional amendment to this amendment. But be that as it may, any
Senator has a right to do that.
I hope my colleagues will vote down the Hollings amendment, as it
should be voted down. That is a serious debate that has to take place,
and it should not take place as a constitutional amendment. Having said
that, let me comment about why we are here.
The Senate began today's session with the Pledge of Allegiance to our
American flag. Today, we resume debate over a proposal that will test
whether the pledge we make--with our hands over our hearts--is one of
consequence or just a hollow gesture. We resume debate over S.J. Res.
14, a constitutional amendment to permit Congress to enact legislation
prohibiting the desecration of the American flag. Now all we are
asking, since the Court has twice rejected congressional statutes, is
to give Congress the power to protect our flag from physical
desecration. It seems to me that is not much of a request.
It should be a slam dunk. But, unfortunately, politics is being
played with this amendment. Congress would not have to act on it if it
didn't want to, but it would have the power to do so. It also involves
the separation of powers doctrine.
The Supreme Court, in its infinite wisdom, has indicated that flag
burning, defecating on the flag, or urinating on the flag is a form of
free speech.
I don't see how anybody in his right mind can conclude that. There is
no question that is offensive conduct and it ought to be stamped out.
On the other hand, all we are doing is giving Congress the power to
enact legislation that would prohibit physical desecration of the flag.
Congress doesn't have to, if it doesn't want to; it can, if it wants
to.
When we enacted those prior statutes to protect the flag, they passed
overwhelmingly. It was also under the guise that we were trying to
protect the flag through statutory protection, which I of course
pointed out very unfailingly in both cases was unconstitutional. Of
course, the Supreme Court upheld what I said they would uphold.
Symbols are important. The American flag represents, in a way that
nothing else does, the common bond shared by the people of this nation,
one of the most diverse in the world. It is our one overriding symbol
of unity. We have no king; we won our independence from him over 200
years ago. We have no state religion. What we do have is the American
flag.
Whatever our differences of party, politics, philosophy, race,
religion, ethnic background, economic status, social status, or
geographic region, we are united as Americans in peace and in war. That
unity is symbolized by a unique emblem, the American flag. Its stars
and stripes and rich colors are the visible embodiment of our Nation
and its principles and values and ideals.
The American flag has come to symbolize hope, opportunity, justice,
and freedom--not just to the people of this Nation but to people all
over the world. Failure to protect the flag would lessen the bond among
us as Americans and weaken the symbolism of our sovereignty as a
nation.
This proposed amendment recognizes and ratifies James Madison's
view--and the constitutional law that existed for centuries--that the
American flag is an important and unique incident of our national
sovereignty. As Americans, we display the flag in order to signify
national ownership and protection. The Founding Fathers made clear that
the flag reflects the existence and sovereignty of the United States,
and that desecration of the flag was a matter of national--I repeat--
national concern that warranted government action. This same
sovereignty interest does not exist for our national monuments or our
other symbols. While they are important to us all, the flag is unique.
It is flown over our ships. We carry it into battle. We salute it and
pledge allegiance to it. We do these things because the flag is the
unique symbol unity and sovereignty.
The proposed amendment reads simply: ``The Congress shall have the
power to prohibit the physical desecration of the flag of the United
States.'' S.J. Res. 14 is not an amendment to ban flag desecration, but
an amendment to allow Congress to make the decision on whether to
prohibit it. It is not self-executing, so a statute defining the terms
and penalties for the proscribed conduct will need to be enacted,
should this amendment be approved by two-thirds of the Senate today, or
whenever.
While it would be preferable to enact a statute, and not take the
rare and sober step of amendment the Constitution, our amendment is
necessary because the Supreme Court has given us no choice in the
matter.
I understand there is some lack of knowledge in this body where
people have not realized that for 200 years we have protected the flag
and that 49 States have anti-flag-desecration language. But in two
narrow 5-4 decisions, breaking from over 200 years of precedent--Texas
v. Johnson and United States v. Eichman--the Court overturned prior
State statutes prohibiting the desecration of the flag.
Make no mistake about it: The United States Senate is the forum of
last resort to ensure that our flag is protected. H.J. Res. 33--an
identical measure--has already won the necessary two-thirds vote in the
House of Representatives by a vote of 305 to 124, with overwhelming
bipartisan support. In fact, nearly 50 percent of the Democrats in the
House voted for the measure.
In addition, the people, expressing themselves through 49 State
legislatures, have expressed their readiness to ratify the measure by
calling upon Congress to pass this constitutional amendment to protect
the flag. Protecting the flag is not a partisan gesture, nor should it
be. Especially at a time of election-year partisan rhetoric, this
amendment to protect our flag is an opportunity for all Americans to
come together as a country and honor the symbol of what we all are.
This effort will not only reaffirm our allegiance to the flag, it will
reestablish our national unity.
The American people revere the flag of the United States as the
unique symbol of our Nation and the freedom we enjoy as Americans. As
Supreme Court Justice John Paul Stevens said in his dissent in Texas v.
Johnson:

[[Page S1770]]

[A] country's flag is a symbol of more than ``nationhood
and national unity.'' It also signifies the ideas that
characterize the society that has chosen that emblem as well
as the special history that has animated the growth and power
of those ideas. . . . So it is with the American flag. It is
more than a proud symbol of the courage, the determination,
and the gifts of a nation that transformed 13 fledgling
colonies into a world power. It is a symbol of freedom, of
equal opportunity, of religious tolerance, and of goodwill
for other peoples who share our aspirations.'' [491 U.S. at
437 (dissenting)]

In the long process of bringing this amendment to the floor, we have
gone more than half way to address the concerns of critics. I think it
is time for opponents of the amendment to join with us in offering the
protection of law to our beloved American flag.
Justice John Paul Stevens, in his dissent in the Texas v. Johnson
decision, said it best:

The ideas of liberty and equality have been an irresistible
force in motivating leaders like Patrick Henry, Susan B.
Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale
and Booker T. Washington, the Philippine Scouts who fought at
Bataan, and the soldiers who scaled the bluff at Omaha Beach.
If those ideas are worth fighting for--and our history
demonstrates that they are--it cannot be true that the flag
that uniquely symbolizes their power is not itself worthy of
protection from unnecessary desecration. [491 U.S. at 439]

I want to talk a little bit about the arguments that I have heard
over the past several years, and again this week, from some of my
colleagues who oppose this amendment. Opponents contend that preventing
the physical desecration of the flag actually tramples on the sacred
right of Americans to speak freely. Although I respect many people who
have this view, I strongly disagree with it. I hope that, as I have
come to understand their perspective, they too will be open to mine
and, together, we will be able to achieve consensus on the most
important issue of all--protecting and preserving the American flag.
Restoring legal protection to the American flag would not infringe on
free speech. If burning the flag were the only means of expressing
dissatisfaction with the nation's policies, then I imagine that I, too,
might oppose this amendment. But we live in a free and open society.
Those who wish to express their political opinions--including any
opinion about the flag--may do so in public, private, the media,
newspaper editorials, peaceful demonstrations, and through their power
to vote.
Certainly, destroying property might be seen as a clever way of
expressing one's dissatisfaction. But such action is conduct, not
speech. Law can be, and are, enacted to prevent such actions, in large
part because there are peaceful alternatives equally expressive. After
all, right here in the United States Senate, we prohibit speeches or
demonstrations of any kind in the public galleries, even the silent
display of signs or banners. As a society, we can, and do, place
limitations on both speech and conduct.
Mutilating our Nation's great symbol of national unity is simply not
necessary to express an opinion. Those individuals who have a message
to the country should not confuse their right to speak with a supposed
``conduct right,'' which allows one to desecrate a symbol that embodies
the ideals of a Nation that Americans have given their lives to
protect.
For this reason, I must reiterate strongly that the flag protection
amendment does not effectively amend the first amendment. It merely
reverses two erroneous decisions of the Supreme Court and restores to
the people the right to choose what law, if any, should protect the
American flag.
I have heard some of my colleagues miss this point and talk about how
we cannot amend the Bill of Rights or infringe on free speech, and I
was struck by how many of them voted for the flag protection statute in
1989. Think about that. They cannot have it both ways. How can they
argue that a statute that bans flag burning does not infringe on free
speech, and yet say that an amendment that authorizes Congress to enact
such a statute banning flag burning does infringe on free speech?
Moreover, the argument that a statute will suffice is an illusion. We
have been down this road before, and it is an absolute dead end, having
been rejected by the Supreme Court less than 30 days after oral
argument, in a decision of fewer than 8 pages. They will do the same to
any other statute of general applicability to the flag. A
constitutional amendment is necessary because the Supreme Court has
given us no choice in this matter.

We all understand the game that is being played. We have people who
changed their vote at the last minute to prevent the flag amendment
from passing, as they did on the balanced budget amendment. The same
people who voted for the statute are claiming their free speech rights
would be violated by this amendment, but I guess not by the statute
that allows them to ban desecration of the flag--a statute that I think
they all know would be automatically held unconstitutional by the
Supreme Court. It is a game. It is time for people to stand up for this
flag.
Some of my colleagues argue that because the Supreme Court has spoken
we can do little to override this newly minted, so-called
``constitutional right.'' In my view, this concedes far too much to the
judiciary.
No human institution, including the Supreme Court, is infallible.
Suppose that the year is 1900 and we are debating the passage of an
amendment to override the Plessy versus Ferguson decision. That was the
decision in which the Supreme Court rules that separate-but-equal is
equal, and that the Constitution requires only separate-but-equal
public transportation and public education. The Plessy decisions was
almost unanimous, 8-1 in contrast to the Johnson and Eichman decisions,
which were 5-4. Would any of my colleagues be arguing that we could not
pass an amendment to provide that no state may deny equal access to the
same transportation, public education, and other public benefits
because of race or color simply because the Court had spoken the final
word? Would any one of my colleagues argue that the Plessy decision had
to stand because an amendment might change the 14th amendment? Of
course not.
The suggestion by some that restoring Congress' power to protect the
American flag from physical desecration tears at the fabric of our
liberties is so overblown that it is difficult to take seriously. In
fact, I think it is phony. These arguments ring particularly hollow
because until 1989, 48 states and the federal government had flag
protection laws. Was there a tear in the fabric of our liberties then?
Of course not.
It goes without saying that among the most precious rights we enjoy
as Americans is the right to govern ourselves. It was to gain this
right that our ancestors fought and died at Concord and Bunker Hill,
Saratoga, Trenton, and Yorktown. And it was to preserve that right that
our fathers, brothers, and sons bravely gave their lives at New
Orleans, Flanders, the Bulge, and Mt. Suribachi. The Constitution
exists for no other purpose than to vindicate this right of self-
government by the people. The Framers of the Constitution did not
expect the people to meekly surrender their right to self-government,
or their judgment on constitutional issues, just because the Supreme
Court decides a case a particular way. Nor, when they gave Congress a
role in the amendment process, did the Framers expect us to surrender
our judgment on constitutional issues just because another, equal and
co-ordinate branch of government, rules a particular way. The amendment
process is the people's check on the Supreme Court. If it were not for
the right of the people to amendment the Constitution, set out in
Article 5, we would not even have a Bill of Rights in the first place.
It was the people through their elected representatives--not the
courts--who enshrined the freedom of speech in the Constitution.
The Framers did not expect the Constitution to be routinely amended,
and it has not been. The amendment process is difficult and
exceptional. But it should not be viewed as an unworthy or unrighteous
process either. The amendment process exists to vindicate the most
precious right of the people to determine under what laws they will be
governed. It is there to be used when the overwhelming majority of
voters decide that they should make a decision rather than the Supreme
Court.
In Texas versus Johnson and United States versus Eichman the Supreme
Court decided for Americans that a

[[Page S1771]]

statute singling out the flag for special protection is based on the
communicative value of the flag and therefore violates the first
amendment. The Court decided that what 48 states and the federal
government had prohibited for decades was now wrong. Since the Johnson
and Eichman decisions, several challenges have been brought against the
state statutes prohibiting flag desecration. State courts considering
these types of statutes have uniformly held these statutes
unconstitutional.
One recent case, Wisconsin versus Janssen, involved a defendant who
confessed to, among other things, defecating on the United States flag.
Relying on the Supreme Court's Johnson decision, the Wisconsin high
court invalidated a state statute prohibiting flag desecration on the
ground that the statute was overbroad and unconstitutional on its face.
In reaching that decision, the court noted that it was
deeply offended by Janssen's conduct, and stated that ``[t]o many,
particularly those who have fought for our country, it is a slap in the
face.'' The court further explained that ``[t]hough our disquieted
emotions will eventually subside, the facts of this case will remain a
glowing ember of frustration in our hearts and minds. That an
individual or individuals might conceivably repeat such conduct in the
future is a fact which we acknowledge only with deep regret.'' What was
particularly distressing about this decision is that the court found
the statute constitutionally invalid even though the state was trying
to punish an individual whose vile and senseless act was devoid of any
significant political message, as so many of them are.

The court noted ``the clear intent of the legislature is to proscribe
all speech or conduct which is grossly offensive and contemptuous of
the United States flag. Therefore, any version of the current statute
would violate fundamental principles of first amendment law both in
explicit wording and intent.'' Under prevailing Supreme Court
precedent, then, the Court found that the proscribed conducted was
protected ``speech.'' The Wisconsin decision, like those before it,
demonstrates that, because of the narrow Johnson and Eichman decisions
of the U.S. Supreme Court, any statute, state or federal, that seeks to
prohibit flag desecration will be struck down.
The Wisconsin Supreme Court, however, noted that all was not lost.
The Court opined that ``[i]f it is the will of the people in the
country to amend the United States Constitution in order to protect our
nation's symbol, it must be done through normal political channels,''
and noted that the Wisconsin legislature recently adopted a resolution
urging Congress to amend the Constitution to prohibit flag desecration.
Clearly, with the House having already sent us the amendment on a
strong, bipartisan vote, the ball is firmly here in the Senate's court.
If we are serious about protecting the American flag, it is up to this
body, at this time, to take action and to send this proposed amendment
to the people of the United States.
After all the legal talk and hand-wringing on both sides of this
issue, what is comes down to is this: Will the Senate of the United
States confuse liberty with license? Will the Senate of the United
States deprive the people of the United States the right to decide
whether they wish to protect their beloved national symbol, Old Glory?
Forty-nine state legislatures have called for a flag protection
amendment. By an overwhelming and bipartisan vote, the House of
Representatives has passed the amendment. Now it is up to the Senate to
do its job. Let us join together and send this amendment to the people.
This resolution should be adopted, and the flag amendment sent to the
states for their approval. Our fellow Americans overwhelmingly want to
see us take action that really protects the flag and this, my friends,
can do just that. I urge you to support the flag protection amendment
and, by doing so, preserve the integrity and symbolic value of the
American flag.
It is now time for the Senate to heed the will of the people by
voting for the flag protection constitutional amendment. Doing so will
advance our common morality and the system of ordered liberty
encompassed in our history, laws and traditions. We must restore the
Constitution and the first amendment, send the flag amendment to the
States that have requested it with near unanimity, and return to the
American people the right to protect the United States flag. It is time
to let the people decide.
Again, I come back do that major point. All this amendment does is
recognize that there are three separated powers in this country--the
legislative, executive, and judicial branches of Government. When the
judicial branch says we can no longer enact by statute the protection
of the flag and suggests we have to pass a constitutional amendment if
we want to protect the flag, then this amendment gives the Congress the
right to be coequal with the other branches of Government. It gives us
the right to protect the flag through a constitutional amendment and it
gives us the right, if we so choose, to pass legislation similar to the
legislation that a vast majority of Members of this body voted for back
in 1989.
Last but not least, in this day and age, many of our young people
don't even have a clue to what happened back between 1941 and 1945.
They don't even realize what happened in the Second World War.
Sending this amendment to the 50 States would create a debate on
values, which is necessary in this country, like we have never had
before. It will be up to the people to decide. That is all we are
asking. Let the people, through their State legislatures, decide
whether or not we should protect the flag. That is not a bad request.
It is something that needs to be done. Above all, it restores to the
Congress the coequal power as a coequal branch of Government that is
gone because of the very narrow set of 4-5 Supreme Court decisions. I
reserve the remainder of my time.
The PRESIDING OFFICER (Mr. Crapo). Who yields time?
Mr. HATCH. How much time does our side have?
The PRESIDING OFFICER. The Senator from Kentucky has 1 hour, the
Senator from South Carolina has 1 hour, and the Senator from Vermont
has a half hour.
Mr. HATCH. 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. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I ask unanimous consent that I control the
time on our side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I yield 5 minutes to the distinguished Senator from
Wyoming.
The PRESIDING OFFICER. The Senator from Wyoming is recognized for 5
minutes.
Mr. THOMAS. I thank the Chair. Mr. President, I will take a very
short time. I speak in favor of the flag protection amendment to the
Constitution. It is an honor for me to be a cosponsor of this
constitutional amendment, 1 of 58. Most everything has been said, I
suppose, that needs to be said about it. Of course, no one here is in
favor of desecration of the flag. What we have is a difference of view
as to how to deal with that issue.
This constitutional amendment has been around for a very long time
and has been considered several times. Certainly, this symbol of the
flag is one that should be held in the highest regard. Most everyone
agrees with that.
This measure states:

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

That should be the case. It seems to me what that does is helps to
define freedom of speech. We can do that.
What we are saying is it is illegal to physically desecrate the flag
of the United States. I cannot imagine how people can disagree with
that. The Senate has voted on this matter in the past in 1989, 1990,
and 1995, and each time a majority was in favor. The House passed an
identical measure in June of 1999 by a vote of 305-124 with a
sufficient majority. Each year we get a little closer to passing it.

[[Page S1772]]

Why do we need a flag protection amendment? Forty-nine State
legislatures have already passed resolutions urging this constitutional
amendment. The flag, obviously, is a sacred symbol and deserves
protection from desecration. It is a symbol of national unity and
identification. We all know of the sacrifices that have been made, and
this flag typifies that; this flag is symbolic of that. It is an
inspiration for people.
The attempts in the past have failed in terms of statutory issues.
The Supreme Court struck down the Texas v. Johnson in 1989 in a 5-4
decision. In 1990, there was another 5-4 decision.
This is a reasonable request to accommodate and I believe most
Americans want to protect this flag. If this is the necessary way to do
it, then I am for that.
I am very pleased to be a cosponsor, and I urge this be passed in the
Senate. I yield the floor.
Mr. HATCH. Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. If neither side yields time, time runs
equally.
Mr. HOLLINGS. Mr. President, I understand we are on the flag
amendment. That is why I waited for them to complete their hour and I
begin mine.
Mr. HATCH. My understanding is, it is the Hollings amendment that is
being debated.
Mr. HOLLINGS. That is what Senator Hatch says, but that is not what
the Chair says.
The PRESIDING OFFICER. The Senate currently has under consideration
the Hollings amendment No. 2890.
Mr. HOLLINGS. All this time has been taken off the Hollings
amendment? Come on. We have been talking about the flag. I approached
the Chair when we started. Right to the point, the Parliamentarian said
they are arguing the flag amendment. Senator Thurmond started, and then
Senator Hatch talked on the flag amendment. The others have been
talking on the flag amendment.
Mr. HATCH. Will the Senator yield?
The PRESIDING OFFICER. It is the Chair's understanding the Hollings
amendment is an amendment to the flag amendment.
Mr. HATCH. We can use our time any way we want to on our side. The
amount of time is still remaining for Senator Hollings on his side. As
I understand it, we are debating the Hollings amendment, but I talked
generally about the flag amendment.
The PRESIDING OFFICER. The Hollings amendment is an amendment to the
flag amendment and is under consideration.
Mr. HOLLINGS. How much time do I have?
The PRESIDING OFFICER. The Senator from South Carolina has 1 hour.
Mr. HOLLINGS. I thank the Chair.
Mr. HOLLINGS. Mr. President, I'm addressing the so-called freedom of
speech with respect to campaign financing. I explained yesterday
afternoon how we, in the 1974 act, tried to clean up the corruption.
Cash was being given, all kinds of favors and demands were being made
on members of the Government, as well as in the private sector.
Numerous people were convicted. We enacted the 1974 act after the
Maurice Stans matter in the Nixon campaign.
We debated one particular point--that you could not buy the office.
Now the contention is that you can buy the office because under the
first amendment protecting freedom of speech, and money being speech,
there is no way under the Constitution that it can be controlled. Of
course, that is a distortion by the Buckley v. Valeo decision for the
simple reason that we finally have Justice Stevens saying that ``money
is property.'' Justice Kennedy goes right into the distortion. I quote
from the case of Nixon v. Shrink Missouri Government PAC:

The plain fact is that the compromise the Court invented--
--

I emphasize the word ``invented''----

in Buckley set the stage for a new kind of speech to enter
the political system. It is covert speech. 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.
Then further:

Issue advocacy, like soft money, is unrestricted . . .
while straightforward speech in the form of financial
contributions paid to a candidate . . . is not. Thus has the
Court's decision given us covert speech. This mocks the First
Amendment.

I hope everybody, particularly the other side of the aisle,
understands that I am reading from Justice Kennedy:

This mocks the First Amendment.

He goes on to say:

Soft money must be raised to attack the problem of soft
money. In effect, the Court immunizes its own erroneous
ruling from change.

We have it foursquare. There is no question that the majority in
Buckley has mocked the first amendment. Four Justices in Buckley v.
Valeo found that you could control spending. They treated money as it
has been treated in the Congress--as property and not speech.
Let's look, for example, at the hearing we had. When the Senate is
asked to consider contributions, they consider them property. So we had
the Thompson investigation. Seventy witnesses testified in public over
a total of 33 days; 200 witness interviews were conducted; 196
depositions were conducted under oath; 418 subpoenas were issued for
hearings, depositions, and documents; and more than 1.5 million pages
of documents were received.
They did not say that Charlie Trie, Johnny Huang and others had free
speech. The lawyers in those particular cases would be delighted to
hear a Congressman who now takes the position that: Oh, it is all free
speech. Don't worry about any violations because the first amendment
protects this money. The first amendment protects it as free speech.
That is out of the whole cloth. They have been singsonging because they
enjoy this particular corruption.
What corruption? As I pointed out yesterday, we used to come in here
and work. Thirty years ago, under Senator Mansfield, we would come in
at 9 o'clock Monday morning and we would have a vote. The distinguished
leader at that time usually had a vote to make sure we got here and
started our week's work--and I emphasize ``week's work.'' We worked
throughout Monday, Tuesday, Wednesday, Thursday, Friday, and we were
lucky to complete our work by Friday evening at 5 o'clock.
Now: Monday is gone. Tuesday morning is gone. We don't really work
here. We are waiting and not having any votes. People are coming back
into town. Nobody is here to listen. On Wednesday and Thursday we have
to have windows so we can go fundraise. Can you imagine that? That
ought to embarrass somebody. But I have asked for windows, too, because
that is the way it is.
The money chase--the amount of money that must be chased--has
corrupted this Congress. Everybody knows it. The people's business is
set aside. On Friday, we go back home. What do we do? We have fund-
raisers. We don't have free-speech raisers, like they are talking about
on the floor of the Senate now.
They get all pontifical and stand up and talk oh so eruditely about
the Constitution and the first amendment. They know better than anyone
that this is property. But as long as they can sell everybody that
there are no limits, there are no restrictions on money because it is
free speech, then it is ``Katie bar the door'' and we have really gone
down the tube.
It is not that bad; it is worse. We used to have a break, I think it
was on February 12, for Lincoln's birthday. It might have been a long
weekend, but it was not a 10-day break. Now, January is gone. Then we
had a 10-day break in February. We had a 10-day break again in March.
We will have another 10-day break in April. We will have another 10-day
break in May and at the beginning of June. Then we will have the Fourth
of July break. Then we will have the month of August off--all of this
keeping us from doing the people's business.

I thought once our campaigns were over we would come up here and go
to work on behalf of the people's business. Instead, we work on behalf
of our own business: reelection. All in the name of this tremendous
volume of money, money, money everywhere. They are trying to defend it
on the premise of: Give me the ACLU and the Washington Post. Then they
put up a sandwich

[[Page S1773]]

board about newspapers: If the Hollings amendment is passed, the
newspapers can't write editorials. I never heard of such nonsense.
This does not have to do with anybody's freedom of speech. We cannot,
should not and would not ever take away anybody's speech. But we can
take away the money used in campaigns and limit it just like every
other country does. In England, they limit the amount of time in which
you can actually conduct the campaign. They do not talk about campaigns
in reference to the Magna Carta: Wait a minute, you have taken away my
speech here in the Parliament. There is none of that kind of nonsense.
But here, it is the kind of thing we are having to put up with.
The question is, Can this problem be solved another way?
That is exactly what the Senator from North Dakota, Mr. Conrad, says:
We have a problem. Let's solve it in another way. He puts in a
statutory amendment with respect to the flag.
With respect to campaign financing, give me a break. We have tried
for 25 years--everything from public finance to free TV time, to soft
money, to hard money limitations, to any and every idea.
Now we have the Vice President proposing an endowment to finance
federal campaigns. They think all you have to do is come up with a new
idea and then you are really serious about this. If you are going to
get serious, vote for this amendment. Then, by gosh, we are playing for
keeps.
There are a lot of people on McCain-Feingold getting a free ride
voting for it, knowing it is never going anywhere because the Senator
from Kentucky is manifestly correct, it is patently unconstitutional.
There is no question that this Court would find McCain-Feingold
unconstitutional. Everybody knows that. This is one grand charade, as
the corruption continues.
I emphasize that this amendment does not take a side with McCain-
Feingold, with hard money, with soft money, with the Vice President's
endowment, with anything else or any idea one may have about
controlling spending in Federal elections. It is not pro, it is not
con, it is not for, it is not against. It merely gives authority to the
Congress to do what we intended back in 1974 with the amended version
of the Federal Election Campaign Act of 1971; and that is, to stop
people from buying the office.
The corruption is such that you have to buy the office. We are
required to buy it. I can tell you, because two years ago I spent more
of my time raising $5.5 million for my seventh reelection to the Senate
than I did campaigning. So I speak advisedly. I have asked for windows.
I have asked for parts of this corruption that we are all involved in.
The only way it is going to be cleaned up is a constitutional
amendment.

What does Justice Kennedy say? He says: Buckley mocks the first
amendment. Mind you, there was only one Justice who called money
property, but another said it mocked the first amendment. Then I read
from the decision:

Soft money must be raised to attack the problem of soft
money. In effect, the Court immunizes its own erroneous
ruling from change.

Imagine that. The Court has immunized the ruling from change; namely,
you cannot change it by statute. Listen Senator Conrad, and any other
Senator interested in playing games with this corruption, saying we
will put in a little statute. There have been 2,000 or 20,000
amendments to the Constitution. Give me a break. The last five or seven
amendments had to do with elections. None of them is as important as
this particular national corruption of Congress. We all know about it.
We all participate in it. We have no time to be a Congress. We are just
a dignified bunch of money raisers for each other and for ourselves.
It is sad to have to say that on the floor of the Senate, but it is
time we give the people a chance. This does not legislate or provide
anything. It just says, come November, as a joint resolution, let the
people decide. I think the people have decided. That is why my
amendment is timely. During this year's presidential primaries everyone
was talking about campaign finance reform--reform, reform, reform.
Candidates were saying, I am the reform candidate.
The one thing they are trying to reform is campaign financing, this
corruption. Now even the Vice President has come out and said: The
first day I am your President, I will submit McCain-Feingold--knowing
it is an act in futility. Let's pass McCain-Feingold unanimously. The
Court throws it out later this year. It is not going anywhere. The
Court has time and again said soft money is speech. That is the
majority of this crowd. But I admonish the four Justices in Buckley v.
Valeo who said they could do it. Now we have two other Justices talking
sense. We know good and well that the people want a chance to talk on
this, to vote on this.
I had no sooner put this up years ago, back in the 1980s, and the
States' Governors came and, by resolution, asked that we amend the
Hollings amendment so as to include the States. So that now the
Hollings amendment reads that Congress is hereby empowered to regulate
or control spending in Federal elections, and the States are hereby
allowed to regulate or control spending in State elections.
It should be remembered that the last, I think, six out of seven
amendments, took an average of 17 or 18 months. This is very timely for
the people to vote on in November, when the issue has already been
discussed and debated throughout the primaries. The people are ready to
vote on campaign finance reform. And both presidential candidates, Bush
and Gore, are now trying to position themselves as reformers on
campaign finance. We can solve that by having the people vote on the
issue in and of itself. Within 17 months, on average, we can have the
people vote and by this time next year have it confirmed by the
Congress and this mess will cleaned up. Then we can go back to work for
the people of America and cut out this money machine operation that we
call a Congress.
We not only have to go out during breaks and raise money, we now have
``power hours.'' We have the ``united fund,'' your fair share
allocation that you are supposed to raise and contribute to the
committee. It becomes more and more and more. Every time I turn around,
instead of trying to get some work done, we have more money demands.
So if you want to stop the corruption and stop the charade of calling
campaign contributions free speech, this amendment is the solution. We
are not taking away anybody's speech. We in Congress don't call it
speech when we conduct these hearings, year-long hearings with hundreds
of witnesses and millions of pages of testimony to get the scoundrels.
For what? Not for exercising their free speech but for violating
limitations on money contributions. We treat money as property when we
have these fund raisers. We don't call them free-speech raisers. We
treat it as property, except when we try to really stop the corruption.

I hope we will stop it today and vote affirmatively on the Hollings-
Specter amendment so that we can move on and get back to our work.
Go up to the majority leader and ask him: Mr. Leader, I would like
you to bring up TV violence. He will say: Well, that will take 3 or 4
days. We don't have time.
Why don't we have time? We don't work on Monday. We don't work on
Friday, just the afternoons on Tuesday and Wednesday and Thursday. We
can't even allow amendments.
We are going in this afternoon at 3:30 to the Budget Committee, but
we have been putting that off again and again. I just checked an hour
ago and it was said: We really don't know whether the vote is fixed.
They try to fix the jury, fix the vote so there are no amendments to be
accepted. The vote is fixed. It is an exercise--if you don't go along
with their fix--in futility. Yet Members go around and say: I am a
Member of the most deliberative body in the United States, most
deliberative body in the world. The money chase has corrupted us so
that we are fixed in a position where we can't deliberate. We don't
deliberate. We have forgotten about that entirely and, in fact, rather
enjoy it. So long as nobody raises any questions and we all can go back
home and continue to raise money, we think we are doing a good job.
It is a sad situation. I hope we can address it in an up-front manner
and support the amendment.

[[Page S1774]]

I retain the remainder of my time and suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HOLLINGS. 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. HOLLINGS. I ask unanimous consent that time under the quorum call
not be charged.
The PRESIDING OFFICER. Is there objection?
Mr. HATCH. Reserving the right to object, is the time going to be
divided equally?
The PRESIDING OFFICER. The time would ordinarily be divided equally.
Under this request, if I understand the request of the Senator from
South Carolina, the time will be divided equally. As the time runs, it
will be subtracted equally from both sides.
There is a deadline of 12:30, which the Senator's unanimous consent
request would violate if time was not charged. Is there objection?
Mr. HATCH. Parliamentary inquiry. Is the time to be charged against
this amendment equally referring to the amendment of the Senator from
South Carolina?
The PRESIDING OFFICER. Yes. The Senator from South Carolina asked
that the time not be charged while the Senate is in a quorum call.
However, the Senate is under a previous order of a deadline of 12:30.
Therefore, the time would have to be charged one way or another. The
time expires at 12:30.
Mr. HATCH. I have no objection to the request as long as the time is
divided equally on his amendment to my constitutional amendment.
Mr. HOLLINGS. That is my request, Mr. President.
The PRESIDING OFFICER. Without objection, the time will be divided
equally between now and 12:30.
Mr. McCONNELL. Mr. President, on the matter of the Hollings
amendment, we----
Mr. HATCH. If the Senator will yield, as I understand it there is an
hour for debate on the underlying constitutional amendment between
11:30 and 12:30 against which this time will not be charged.
The PRESIDING OFFICER. That is correct--just a second.
Mr. HATCH. Mr. President, I ask unanimous consent that the time be
charged equally only against the amendment of the distinguished Senator
from South Carolina and that the hour for debate between 11:30 and
12:30 remain the same.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. McCONNELL. Mr. President, we had extensive debate yesterday on
the Hollings amendment. Let me repeat some of that for the record
today.
The Hollings amendment is at least very straightforward. As I
understand what the Senator from South Carolina is saying, in order to
enact the various campaign finance schemes that have been promoted
around the Senate over the last decade or so, you have to, in fact,
amend the first amendment to the U.S. Constitution. I think he is
correct in that. I happen to think, however, that is a terrible idea.
His amendment would essentially eviscerate the first amendment to the
U.S. Constitution, change it dramatically for the first time in 200
years, to allow the Government--that is us here in the Congress--to
determine who may speak, when they may speak and, conceivably, even
what they may speak. Of course, under this amendment, the press would
not be exempt. So everyone who had anything to say about American
political matters in support of or in opposition to a candidate would
fall under the regulatory rubric of the Congress. The American Civil
Liberties Union called this a ``recipe for repression.'' It is the kind
of power the Founding Fathers clearly did not want to reside in elected
officials.
So this is a step we should not take. The good news is the last time
we voted on the Hollings amendment in 1997, it only got 38 votes. I am
confident this will not come anywhere near the 67 votes it would need
to clear the Senate.
I am rarely aligned with either Common Cause or the Washington Post
on the campaign finance issue. They oppose the Hollings amendment.
Senator Feingold, of McCain-Feingold fame, also opposes the Hollings
amendment.
This would be a big step in the wrong direction. I am confident the
Senate will not take that step when the vote occurs sometime early this
afternoon.
Now, some random observations on the subject of campaign finance
reform. There has been a suggestion that this has become a leading
issue nationally and will determine the outcome of the Presidential
election. I think, first, it is important to kind of look back over the
last few months at how this issue has fared with the American people,
since it has been discussed so much by the press. There was an ABC-
Washington Post poll right after the New Hampshire primary among both
Republicans and Democrats, weighting the importance of issues. Among
Republicans, only 1 percent--this was a national poll--thought campaign
finance reform was an important issue and, among Democrats, only 2
percent.
Earlier this year, in January, another poll--a national poll--asked:
What is the single most important issue to you in deciding whom you
will support for President? Campaign finance was down around only 1
percent of the people nationally who thought that was an important
issue in deciding how to vote for President. Further, a more recent
CNN-Gallup-USA Today poll, in March--essentially after the two
nominations for President for both parties had been wrapped up, after
Super Tuesday--asked: What do you think is the most important problem
facing this country today? It was open-ended. American citizens could
pick any issue they wanted to as the most important problem facing this
country today.
In this poll of the American public, over 1,000 adults all across
America, 32 different issues were mentioned. It was an open-ended poll
among American citizens as to what they thought was the most important
issue. Not a single person mentioned campaign finance reform in this
open-ended survey after Super Tuesday, after this issue had been much
discussed in the course of the nomination fights for both the Democrats
and the Republicans. Of course, in California, on the very same day as
the Super Tuesday vote, there was, in fact, a referendum on the ballot
in California providing for taxpayer funding of elections and all of
the various schemes promoted by the reformers here in the Senate in
recent years. It was defeated 2-1.

So we have substantial evidence among the American people as to what
they feel about this issue in terms of its importance in casting votes
for the President of the United States or, for that matter, for Members
of Congress as well.
It has been suggested by the reformers on this issue over the years
that if we will just pass various forms of campaign finance reform, the
public will feel better about us, their skepticism about us will be
reduced, and their cynicism about politics will subside. A number of
other countries have passed the kind of legislation that has been
proposed here over the last 15 or 20 years. Most of those--or all of
those countries don't have a first amendment, so they don't have that
impeding legislative activity. I think it is interesting to look at
these other countries and what the results have been in terms of public
attitudes about government that have come after they have passed the
kinds of legislation that has been advocated around here in one form or
another over the years.
Let's look at some industrialized democracies. Our neighbor to the
north, Canada, has passed many of the types of regulations supported by
the reformers in the Senate over the years. They have passed spending
limits for all national candidates. All national candidates must abide
by these to be eligible to receive taxpayer matching funds. The Vice
President just yesterday came out with a taxpayer-funded scheme for
congressional elections. I have seen survey data on that. It would be
more popular to vote for a congressional pay raise than to vote to
spend tax money on buttons and balloons and commercials. That is what
the Vice President came out for yesterday. We look forward to debating,
in the course

[[Page S1775]]

of the fall election, how the American people feel about having their
tax dollars go to pay for political campaigns.
Nevertheless, other countries have done that. I was talking about
Canada. Candidates can spend $2 per voter for the first 15,000 votes
they get, a dollar per voter for all votes up to 25,000, and 50 cents
per voter beyond 25,000. They have spending limits on parties that
restrict parties to spending the product of a multiple used to account
for the cost of living. This is an incredibly complex scheme they have
in Canada-- a product of a multiple used to account for cost of living
times the number of registered voters in each electoral district in
which that party has a candidate running for office.

It almost makes you laugh just talking about this.
Right now, in Canada, it comes out to about $1 per voter. They have
indirect funding via media subsidies. The Canadian Government requires
that radio and TV networks provide all parties with a specified amount
of free air time during the month prior to an election. The Government
also provides subsidies to defray the cost of political publishing and
gives tax credits to individuals and corporations which donate to
candidates and/or parties. It sounds similar to the Gore proposal of
yesterday.
They have this draconian scheme up in Canada in which nobody gets to
speak beyond the Government's specified amount. The Government's
subsidies are put into both campaigns and parties and media subsidies.
What has been the reaction of the Canadian people in terms of their
confidence expressed toward their Government?
The most recent political science studies of Canada demonstrate that
despite all of this regulation of political speech by candidates and
parties, the number of Canadians who believe that ``the Government
doesn't care what people like me think'' has grown from roughly 45
percent to approximately 67 percent.
The Canadians put in this system presumably to improve the attitude
of Canadians about their Government, and it has declined dramatically
since the imposition of this kind of control over political speech.
Confidence in the national legislature in Canada declined from 49
percent to 21 percent, and the number of Canadians satisfied with the
system of government has declined from 51 percent to 34 percent.
Here we have in our neighbor to the north, Canada, an example of a
country responding to concerns about cynicism about politics in
government put in all of these speech controls, and the people in
Canada have dramatically less confidence in the Government now than
they did before all of this was enacted.
Let's take a look at Japan.
According to the Congressional Research Service, ``Japanese election
campaigns, including campaign financing, are governed by a set of
comprehensive laws that are the most restrictive among democratic
nations.''
After forming a seven-party coalition government in August, 1993
Prime Minister Hosokawa--this sounds like the Vice President--placed
campaign finance reform at the top of his agenda, just as Vice
President Gore did yesterday. He asserted that his reforms would
restore democracy in Japan. In November 1994, his legislation passed.
After this legislation, the Japanese Government imposed the following
restrictions on political speech. Listen to this. This is the law in
Japan:
Candidates are forbidden from donating to their own campaigns.
Any corporation that is a party to a Government contract, grant,
loan, or subsidy is prohibited from making or receiving any political
contributions for 1 year after they receive such a contract, grant,
loan, or subsidy.
In addition, there are strict limits on what corporations and unions
and individuals may give to candidates and parties.
There are limits on how much candidates may spend on their campaigns.
Candidates are prohibited from buying any advertisements.
Listen to this: Candidates are prohibited from buying any
advertisements in magazines and newspapers beyond the five print media
ads of a specified length that the Government purchases for each
candidate.
Parties are allotted a specific number of Government-purchased ads of
a specified length.
The number of ads a party gets is based on the number of candidates
they have running.
It is illegal for these party ads to discuss individual candidates in
Japan. It is illegal.
In Japan, candidates and parties spend nothing on media advertising
because not only are they prohibited from purchasing print media ads,
they are also prohibited from buying time on television and radio.
Talk about speech controls--in Japan, candidates can't buy any time
on television and radio.
The Government requires TV stations to permit parties and each
candidate a set number of television and radio ads during the 12 days
prior to the election. Each candidate gets to make one Government-
subsidized television broadcast.
The Government's Election Management Committee--that is a nice
title--provides each candidate with a set number of sideboards and
posters that subscribe to a standard Government-mandated format.
The Election Management Committee also designates the places and
times that candidates may give speeches.
In Japan, the Government designates the times and places candidates
may give speeches.
This is the most extraordinary control over political discussion
imaginable. All of this campaign finance reform in Japan was enacted
earlier in the 1990s.
What makes it even more laughable is, after all of this happened, all
of these regulations on political speech that amount to a reformers
wish list were imposed, you have to ask the question: Did cynicism
decline? Did trust in government increase? ``Not so should be noted,''
as we say down in Kentucky. Following the disposition of these
regulations, the number of Japanese who said they had ``no confidence
in legislators''--the Japanese passed campaign finance reform that
Common Cause could only drool over. They did it in Japan. And after
they did it, following the imposition of these regulations, the number
of Japanese who said they had ``no confidence in legislators'' rose to
70 percent.
Following the enactment of this draconian control of political
discourse that I just outlined, in Japan only 12 percent of Japanese
believe the Government is responsive to the people's opinions and
wishes.
After the enactment of all of this control over political discussion
in Japan, the percentage of Japanese ``satisfied'' with the nation's
political system fell to a mere 5 percent and voter turnout continued
to decline.
Let's take a look at France.
In France, there is significant regulation of political activity:
Government funding of candidates;
Government funding of parties;
Free radio and television time, reimbursement for printing posters
and for campaign-related transportation;
They banned contributions to candidates by any entity except parties
and PACs;
Individual contributors to parties are limited;
Strict expenditure limits are set for each electoral district;
And every single candidate's finances are audited by a national
commission to ensure compliance with the rules.
Despite these regulations, the latest political science studies in
France demonstrate that the French people's confidence in their
Government and political institutions has continued to decline, and
voter turnout has continued to decline.
Let's take a look at Sweden.
Sweden has imposed the following regulations on political speech:
In Sweden, there is no fundraising--none at all--or spending for
individual candidates. Citizens merely vote for parties and assign
seats on proportion of votes they receive.
The Government subsidizes print ads by parties.
Despite the fact that Sweden has no fundraising or spending for
individual candidates since these requirements have been in force, the
number of Swedes disagreeing with the statement that ``parties are only
interested in people's votes, not in their opinions'' has declined from
51 percent to 28 percent.
The number of people expressing confidence in the Swedish Parliament
has declined from 51 percent to 19 percent.

[[Page S1776]]

So we could follow the rest of the world and trash the first
amendment and enact all of these draconian controls over political
discussion, and there is no evidence anywhere in the world that
produces greater faith in government or greater confidence in the
process. In fact, there is every bit of evidence that it declines
dramatically after the enactment of these kinds of reforms.
I am confident we will not start repealing the first amendment today
through the passage of the Hollings amendment. Only 38 Senators voted
for this in 1997 when it was last before us, and I am certain there
won't be many more than that today.
Mr. President, how much time remains in opposition to the Hollings
amendment?
The PRESIDING OFFICER (Mr. Enzi). Three minutes.
Mr. McCONNELL. The Senator from Wisconsin is here to speak in
opposition to the Hollings amendment.
Mr. FEINGOLD. Mr. President, I ask unanimous consent if I could speak
for 15 minutes in opposition.
The PRESIDING OFFICER. The time is under the control of the Senator
from Utah.
Mr. McCONNELL. Since there are 3 minutes more in opposition to the
Hollings amendment, I am happy to give the Senator from Wisconsin my 3
minutes and hope he might be accommodated for a few more minutes to
complete his statement.
Mr. HATCH. I am happy to give the Senator 3 minutes, and I ask the
distinguished Senator from South Carolina if he would give some time.
Mr. HOLLINGS. We have no time. I have the Senator from Pennsylvania
coming. I want to be accommodating but time is limited.
Mr. FEINGOLD. Obviously, both sides have the same amount of time. I
ask unanimous consent I be allowed to speak for 15 minutes, if
necessary adding on to the time. Obviously, if the opponents were to
feel the same, I have no opposition.
The PRESIDING OFFICER. The Senator is advised we have a deadline of
12:30. Therefore, the Senator's unanimous consent request would
necessarily have to come out of Senator Hollings' time, after the 3
minutes have been used from the opposition.
Mr. HATCH. Mr. President, I ask unanimous consent the debate on the
Judiciary Committee amendment to the Constitution be moved to 11:45 to
accommodate the distinguished Senator, with the time divided equally.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Wisconsin is recognized for 15 minutes.
Mr. FEINGOLD. I certainly thank the Senator from Utah.
Mr. President, I rise today to oppose the proposed constitutional
amendment offered by the junior Senator from South Carolina, Senator
Hollings.
First I would like to say a few words about the Senator from South
Carolina. Our colleague Senator Hollings has been calling for
meaningful campaign finance reform for perhaps longer than any other
Member of the U.S. Senate. I disagree with this particular approach.
But I certainly do not question his sincerity or commitment to reform.
Back in 1993, my first year in the Senate, Senator Hollings offered a
sense-of-the-Senate amendment to take up a constitutional amendment
very similar to the one that is before us today. I remember we had a
very short period of time before that vote came up, and I decided to
vote with the Senator from South Carolina on that day. I did so because
I believed that other than balancing the Federal budget, there was
perhaps no more fundamental issue facing our country than the need to
reform our election laws.
Such a serious topic I believed at the time merited at least a
consideration of a constitutional amendment. And I will certainly
confess to a certain level of frustration at that time with the fact
that the Senate and other body had not yet acted to pass meaningful
campaign finance reform in that Congress.
To be candid, I immediately realized, even as I was walking back to
my office from this Chamber, that I had made a mistake. I started
rethinking right away whether I really wanted the U.S. Senate to
consider amending the first amendment, even to address the extremely
important subject of campaign finance reform.
Then, 18 months later, my perspective on this question began to
change even more as I was presented with two new development here in
the Senate.
First I was given the privilege of serving on the Senate Judiciary
Committee, and, second, I learned that the 104th Congress, newly under
the control of what remains the majority party, was to become the
engine for a trainload of proposed amendments to the U.S. Constitution.
As a member of the Judiciary Committee, I had a very good seat to
witness first hand the surgery that some wanted to perform on the basic
governing document of our country, the Constitution.
It started with a proposal right away for a balanced budget
constitutional amendment. Soon we were considering a term limits
constitutional amendment, and then a flag desecration constitutional
amendment, then a school prayer amendment, then a super majority tax
increase amendment, and then a victims rights amendment. In all over
100 constitutional amendments were introduced in the 104th Congress. A
similar number were introduced in the last Congress as well. And in
this Congress already we have seen over 60 constitutional amendments
introduced.
As I saw legislator after legislator suggest that every sort of
social, economic, and political problem we have in this country could
be solved merely with enactment of a constitutional amendment, I chose
to oppose strongly not only this constitutional amendment but others
that also sought to undermine our most treasured founding principle. I
firmly believe we must curb this reflexive practice of attempting to
cure each and every political and social ill of our Nation by tampering
with the U.S. Constitution. The Constitution of this country was not a
rough draft. We must stop treating it as such.
We must also understand that even if we were to adopt this
constitutional amendment, and the states were to ratify it, which we
all know is not going to happen, it will not take us one single,
solitary step closer to campaign finance reform. It is not a silver
bullet. This constitutional amendment empowers the Congress to set
mandatory spending limits on congressional candidates. Those are the
kind of mandatory limits that were struck down in the landmark Buckley
v. Valeo decision.
Here is the question I pose for supporters of this amendment: If this
constitutional amendment were to pass the Congress and be ratified by
the States, would campaign finance reformers have the necessary 51
votes--or more likely the necessary 60 votes--to pass legislation that
includes mandatory spending limits? I don't think so.
We do not even have 60 votes to pass a ban on soft money at this
point. And we probably don't even have a bare majority of the Senate
who support spending limits, much less mandatory spending limits.
I have been working for many years with the senior Senator from
Arizona, Senator McCain, on a bipartisan campaign finance proposal.
While our proposal has changed over the years, we have consistently
been guided by a desire to work within the guidelines established by
the Supreme Court. Although our opponents disagree, we are confident
that the McCain-Feingold bill is constitutional and will be upheld by
the courts.
I am mystified by the comments of the Senator from South Carolina who
stated pointblank: Everyone knows the McCain-Feingold bill is
unconstitutional. In fact, the recent Missouri Shrink case said by a 6-
3 margin such limitations on contributions are constitutional. It was a
supermajority of the Supreme Court. It is not credible, I believe, for
anyone to argue at this point that a ban on soft money is
unconstitutional.
Our original proposal, unlike the law that was considered in Buckley
v. Valeo, included voluntary spending limits. We offered incentives in
the form of free and discounted television time to encourage but not
require candidates to limit their campaign spending. That kind of
reform is patterned on the Presidential public funding system that was
specifically upheld in Buckley.

[[Page S1777]]

Later versions of our bill have focused on abolishing soft money, the
unlimited contributions from corporations, unions, and wealthy
individuals to political parties. Very few constitutional scholars,
other than a current nominee to the FEC, Brad Smith, believe that the
Constitution prevents us from banning soft money. As I indicated, the
Missouri Shrink case makes that clear.
The key point is this: We don't need to amend the Constitution to do
what needs to be done. Of course, when we bring a campaign finance bill
to the floor we are met with strong resistance. In fact, so far we have
been stopped by a filibuster. The notion that this constitutional
amendment will somehow magically pave the way for legislation that
includes mandatory spending limits simply ignores the reality of the
opposition that campaign finance reformers face in the Senate, and I
think we face in the Senate even after a ratification of the Hollings
amendment.
This amendment, if ratified, would remove the obstacle of the Supreme
Court from mandatory spending limit legislation, but it will not remove
the obstacle of those Senators such as the Senator from Kentucky, who
believe we need more money, not less, in our political system.
Most disconcerting to me is what this proposed constitutional
amendment would mean to the first amendment. I find nothing more sacred
and treasured in our Nation's history than the first amendment. It is
perhaps the one tenet of our Constitution that sets our country apart
from every type of government formed and tested by mankind throughout
history. No other country has a provision quite like our first
amendment.
The first amendment is the bedrock of the Bill of Rights. It has as
its underpinning the notion that every citizen has a fundamental right
to disagree with his or her government. It says that a newspaper has an
unfettered right to publish expressions of political or moral thought.
It says that the Government may not establish a State-based religion
that would infringe on the rights of those individuals who seek to be
freed from such a religious environment.

I have stood on the floor of the Senate to oppose the proposed
constitutional amendment that would allow Congress to prohibit the
desecration of the U.S. flag, and I do so again this week. I do so
because that amendment, for the first time in our history, would take a
chisel to the first amendment. It would say that individuals have a
constitutional right to express themselves--unless they are expressing
themselves by burning a flag.
Just as I deplore as much as anyone in this body any individual who
would take a match to the flag of the United States, I am firmly
convinced that unrestrained spending on congressional campaigns has
eroded the confidence of the American people in their government and
their leaders. I believe we should speak out against those who
desecrate the flag. I believe we should take immediate steps to
fundamentally overhaul our system of financing campaigns. But I do not
believe, as the supporters of this constitutional amendment and other
amendments believe, that we need to amend the U.S. Constitution to
accomplish our goals.
Nothing in this constitutional amendment before the Senate today
would prevent what we witnessed in the last election. Allegations of
illegality and improprieties, accusations of abuse, and the selling of
access to high-ranking Government officials would continue no matter
what the outcome of the vote on this constitutional amendment. Only the
enactment of legislation that bans soft money contributions will make a
meaningful difference.
I see Members of the Senate as having three choices. First, they can
vote for constitutional amendments and one-sided reform proposals that
basically have predetermined fates of never becoming law. That allows
you to say you voted for something and put the matter aside. Second,
they can stand with the Senator from Kentucky and others who tell us
``all is well'' with our campaign finance system and we should not be
disturbed that so much money is pouring into the campaign coffers of
candidates and parties.
A third option is that Senators can join with the Senator from
Arizona and myself and others who have tried to approach this problem
from a bipartisan perspective and have tried to craft a reform proposal
that is fair to all, and constitutional.
Without meaningful bipartisan campaign finance reform, the American
people will continue to perceive their elected leaders as being for
sale. They will continue to distrust and doubt the integrity of their
own Government. And they will have good reason for that distrust and
doubt. This system of legalized bribery threatens the very foundations
of our democracy.
Senator McCain and I intend to make sure that the Senate will have
another opportunity to address this issue. We have had many debates on
campaign finance reform, and we will have many more until we pass it. I
understand and share the frustration of those who support reform and
are tired of seeing our efforts fail. I want to finish this job too.
But the way to address the campaign finance problem is to pass
constitutional legislation, not a constitutional amendment. We must
redouble our efforts to break the deadlock and give the people real
reform this year, not 7 or more years from now.
I urge the Members of the Senate to reject this amendment. It is not
necessary to tinker with the first amendment in order to accomplish
campaign finance reform. I greatly admire the sincerity and commitment
of the Senator from South Carolina, but I do not think his amendment
will bring us any closer to passing campaign finance reform.
I thank the Senator from Utah, again, for his courtesy in allowing me
to address this issue. I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from South
Carolina.
Mr. HOLLINGS. Mr. President, I thank my distinguished colleague from
Wisconsin. I only hasten to add that this particular amendment has
nothing to do with favoring or opposing the McCain-Feingold amendment.
I have voted for that at least four or five times already.
Read the Nixon v. Shrink decision when they say money is speech, and
in the Colorado v. FEC decision when they allowed soft money. One can
tell a majority of the Court has no idea. Money talks; money is
speech--that is the way the Court is going. I reiterate, McCain-
Feingold is an act in futility.
Mr. President, I ask unanimous consent that an article by Jonathan
Bingham, ``Democracy or Plutocracy? The Case for a Constitutional
Amendment to Overturn Buckley v. Valeo'' be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Annals of the American Academy, Jul., 1986]

Democracy or Plutocracy? The Case for a Constitutional Amendment to
Overturn Buckley v. Valeo

(By Jonathan Bingham)

Abstract: In the early 1970s the U.S. Congress made a
serious effort to stop the abuses of campaign financing by
setting limits on contributions and also on campaign
spending. In the 1976 case of Buckley v. Valeo, the Supreme
Court upheld the regulation of contributions, but invalidated
the regulation of campaign spending as a violation of the
First Amendment. Since then, lavish campaigns, with their
attendant evils, have become an ever more serious problem.
Multimillion-dollar campaigns for the Senate, and even for
the House of Representatives, have become commonplace.
Various statutory solutions to the problem have been
proposed, but these will not be adequate unless the
Congress--and the states--are permitted to stop the
escalation by setting limits. What is needed is a
constitutional amendment to reverse the Buckley holding, as
proposed by several members of Congress. This would not mean
a weakening of the Bill of Rights, since the Buckley ruling
was a distortion of the First Amendment. Within reasonable
financial limits there is ample opportunity for that
``uninhibited, robust and wide-open'' debate of the issues
that the Supreme Court correctly wants to protect.
The First Amendment is not a vehicle for turning this
country into a plutocracy,'' says Joseph L. Rauh, the
distinguished civil rights lawyer, deploring the ruling in
Buckley v. Valeo.\1\ It is the thesis of this article that
the Supreme Court in Buckley was wrong in nullifying certain
congressional efforts to limit campaign spending and that the
decision must not be allowed to stand. While statutory
remedies may mitigate the evil of excessive money in politics
and are worth pursuing, they will not stop the feverish
escalation of campaign spending. They

[[Page S1778]]

will also have no effect whatever on the spreading phenomenon
of very wealthy people's spending millions of dollars of
their own money to get elected to Congress and to state
office.
---------------------------------------------------------------------------
\1\ Footnotes at end of article.
---------------------------------------------------------------------------
When the Supreme Court held a national income tax
unconstitutional, the Sixteenth Amendment reversed that
decision. Buckley should be treated the same way.

background

The Federal Election Campaign Act of 1971 was the first
comprehensive effort by the U.S. Congress to regulate the
financing of federal election campaigns. In 1974, following
the scandals of the Watergate era, the Congress greatly
strengthened the 1971 act. As amended, the new law combined
far-reaching requirements for disclosure with restrictions on
the amount of contributions, expenditures from a candidate's
personal funds, total campaign expenditures, and independent
expenditures on behalf of identified candidates.
The report of the House Administration Committee
recommending the 1974 legislation to the House explained the
underlying philosophy:
``The unchecked rise in campaign expenditures, coupled with
the absence of limitations on contributions and expenditures,
has increased the dependence of candidates on special
interest groups and large contributors. Under the present law
the impression persists that a candidate can buy an election
by simply spending large sums in a campaign.
``Such a system is not only unfair to candidates in
general, but even more so to the electorate. The electorate
is entitled to base its judgment on a straightforward
presentation of a candidate's qualifications for public
office and his programs for the Nation rather than on a
sophisticated advertising program which is encouraged by the
infusion of vast amounts of money.
``The Committee on House Administration is of the opinion
that there is a definite need for effective and comprehensive
legislation in this area to restore and strengthen public
confidence in the integrity of the political process.'' \2\
The 1974 act included a provision, added pursuant to an
amendment offered by then Senator James Buckley, for
expedited review of the law's constitutionality. In January
1976 the Supreme Court invalidated those portions that
imposed limits on campaign spending as violative of the First
Amendment's guarantee of free speech.
In his powerful dissent, Justice White said, ``Without
limits on total expenditures, campaign costs will inevitably
and endlessly escalate.'' \3\ His prediction was promptly
borne out. Multimillion-dollar campaigns for the Senate have
become the rule, with the 1984 Helms-Hunt race in North
Carolina setting astonishing new records. It is no longer
unusual for expenditures in contested House campaigns to go
over the million-dollar mark; in 1982 one House candidate
reportedly spent over $2 million of his own funds.
In 1982 a number of representatives came to the conclusion
that the Buckley ruling should not be allowed to stand and
that a constitutional amendment was imperative. In June
Congressman Henry Reuss of Wisconsin introduced a resolution
calling for an amendment to give Congress the authority to
regulate campaign spending in federal elections. In December,
with the cosponsorship of Mr. Reuss and 11 others,\4\ I
introduced a broader resolution authorizing the states, as
well as the Congress, to impose limits on campaign
spending. The text of the proposed amendment was:
Section 1. The Congress may enact laws regulating the
amounts of contributions and expenditures intended to affect
elections to federal office.
Section 2. The several states may enact laws regulating the
amounts of contributions and expenditures intended to affect
elections to state and local offices.\5\
In the Ninety-eighth Congress, the same resolution was
reintroduced by Mr. Vento and Mr. Donnelly and by Mr. Brown,
Democrat of California, and Mr. Rinaldo, Republican of New
Jersey. A similar resolution was introduced in the Senate by
Senator Stevens, Republican of Alaska. As of the present
writing, the resolution has been reintroduced in the Ninety-
ninth Congress by Mr. Vento.\6\
No hearings have been held on these proposals, and they
have attracted little attention. Even organizations and
commentators deeply concerned with the problem of money in
politics and runaway campaign spending have focused
exclusively on statutory remedies. Common Cause, in spite of
my pleading, has declined to add a proposal for a
constitutional amendment to its agenda for campaign reform or
even to hear arguments in support of the proposal. A
constituency for the idea has yet to be developed.

the nature of the problem

This article proceeds on the assumption that escalating
campaign costs pose a serious threat to the quality of
government in this country. There are those who argue the
contrary, but their view of the nature of the problem is
narrow. They focus on the facts that the amounts of money
involved are not large relative to the gross national product
and that the number of votes on Capitol Hill that can be
shown to have been affected by campaign contributions is not
overwhelming.
The curse of money in politics, however, is by no means
limited to the influencing of votes. There are at least two
other problems that are, if anything, even more serious. One
is the eroding of the present nonsystem on the public's
confidence in our form of democracy. If public office and
votes on issues are perceived to be for sale, the harm is
done, whether or not the facts justify that conclusion. In
Buckley the Supreme Court itself, in sustaining the
limitations on the size of political contributions, stressed
the importance of avoiding ``the appearance of improper
influence'' as `` `critical . . . if confidence in the system
of representative government is not to be eroded to a
disastrous extent.' '' \7\ What the Supreme Court failed to
recognize was that `` \6\ confidence in the system of the
representative government' '' could likewise be `` `eroded to
a disastrous extent' '' by the spectacle of lavish spending,
whether the source of the funds is the candidate's own wealth
or the result of high-pressure fund-raising from contributors
with an ax to grind.
The other problem is that excellent people are discouraged
from running for office, or, once in, are unwilling to
continue wrestling with the unpleasant and degrading task of
raising huge sums of money year after year. There is no doubt
that every two years valuable members of Congress decide to
retire because they are fed up with having constantly to beg.
For example, former Congressmen Charles Vanik of Ohio and
Richard Ottinger of New York, both outstanding legislators,
were clearly influenced by such considerations when they
decided to retire, Vanik in 1980 and Ottinger in 1984. Vanik
said, among other things, ``I feel every contribution carries
some sort of lien which is an encumbrance on the legislative
process. . . . I'm terribly upset by the huge amounts that
candidates have to raise.'' \8\ Probably an even greater
number of men and women who would make stellar legislators
are discouraged from competing because they cannot face the
prospect of constant fundraising or because they see a
wealthy person, who can pay for a lavish campaign, already in
the race.
In ``Politics and Money,'' Elizabeth Drew has well
described the poisonous effect of escalating campaign costs
on our political system:
``Until the problem of money is dealt with, it is
unrealistic to expect the political process to improve in any
other respect. It is not relevant whether every candidate who
spends more than this opponent wins--though in races that are
otherwise close, this tends to be the case. What matters is
what the chasing of money does to the candidates, and to the
victors' subsequent behavior. The candidates' desperation for
money and the interests' desire to affect public policy
provide a mutual opportunity. The issue is not how much is
spent on elections but the way the money is obtained. The
point is what raising money, not simply spending it, does to
the political process. It is not just that the legislative
product is bent or stymied. It is not just that well-armed
interests have a head start over the rest of the citizenry--
or that often it is not even a contest. . . . It is not even
relevant which interest happens to be winning. What is
relevant is what the whole thing is doing to the democratic
process. What is at stake is the idea of representative
government, the soul of this country.'' \9\
Focusing on the different phenomenon of wealthy candidates'
being able to finance their own, often successful, campaigns,
the late columnist Joseph Kraft commented that ``affinity
between personal riches and public office challenges a
fundamental principle of American life.'' \10\

shortcoming of statutory proposals

In spite of the wide agreement on the seriousness of the
problems, there is no agreement on the solution. Many
different proposals have been made by legislators,
academicians, commentators, and public interest
organizations, notably Common Cause.
One of the most frequently discussed is to follow for
congressional elections the pattern adopted for presidential
campaigns: a system of public funding, coupled with limits on
spending.\11\ Starting in 1955, bills along these lines have
been introduced on Capitol Hill, but none has been adopted.
Understandably, such proposals are not popular with
incumbents, most of whom believe that challengers would gain
more from public financing than they would.
Even assuming that the political obstacles could be
overcome and that some sort of public financing for
congressional candidates might be adopted, this financing
would suffer from serious weaknesses. No system of public
financing could solve the problem of the very wealthy
candidate. Since such candidates do not need public funding,
they would not subject themselves to the spending limits. The
same difficulty would arise when aggressive candidates,
believing they could raise more from private sources,
rejected the government funds. This result is to be expected
if the level of public funding is set too low, that is, at a
level that the constant escalation of campaign costs is in
the process of outrunning. According to Congressman Bruce
Vento, an author of the proposed constitutional amendment to
overturn Buckley, this has tended to happen in Minnesota,
where very low levels of public funding are provided to
candidates for state office.
To ameliorate these difficulties, some proponents of public
financing suggest that the spending limits that a candidate
who takes government funding must accept should be waived for
that candidate to the extent an opponent reports expenses in
excess of those

[[Page S1779]]

limits. Unfortunately, in such a case one of the main
purposes of public funding would be frustrated and the
escalation of campaign spending would continue. The candidate
who is not wealthy is left with the fearsome task of quickly
having to raise additional hundreds of thousands, or even
millions, of dollars.
Another suggested approach would be to require television
stations, as a condition of their licenses, to provide free
air time to congressional candidates in segments of not less
than, for instance, five minutes. A candidate's acceptance of
such time would commit the candidate to the acceptance of
spending limits. While such a scheme would be impractical for
primary contests--which in many areas are the crucial ones--
the idea is attractive for general election campaigns in
mixed urban-rural states and districts. It would be
unworkable, however, in the big metropolitan areas, where the
main stations reach into scores of congressional districts
and, in some cases, into several states. Not only would
broadcasters resist the idea, but the television-viewing
public would be furious at being virtually compelled during
pre-election weeks to watch a series of talking-head shows
featuring all the area's campaigning senators and
representatives and their challengers. The offer of such
unpopular television time would hardly tempt serious
candidates to accept limits on their spending.
Proponents of free television time, recognizing the limited
usefulness of the idea in metropolitan areas, have suggested
that candidates could be provided with free mailings instead.
While mailings can be pinpointed and are an essential part of
urban campaigning, they account for only a fraction of
campaign costs, even where television is not widely used;
accordingly, the prospect of free mailings would not be
likely to win the acceptance of unwelcome campaign limits on
total expenses.\12\
Yet another method of persuading candidates to accept
spending limits would be to allow 100 percent tax credits for
contributions of up to, say, $100 made to authorized
campaigns, that is, those campaigns where the candidate has
agreed to abide by certain regulations, including limits on
total spending.\13\ It is difficult to predict how effective
such a system would be, and a pilot project to find out would
not be feasible, since the tax laws cannot be changed for
just one area. For candidates who raise most of their funds
from contributors in the $50-to-$100 range, the incentive to
accept spending limits would be strong, but for those--and
they are many--who rely principally on contributors in the
$500-to-$1000 range, the incentive would be much weaker. This
problem could be partially solved by allowing tax credits for
contributions of up to $100 and tax deductions for
contributions in excess of $100 up to the permitted limit.
Such proposals, of course, amount to a form of public
financing and hence would encounter formidable political
obstacles, especially at a time when budgetary restraint and
tax simplification are considered of top priority.
Some of the most vocal critics of the present anarchy in
campaign financing focus their wrath and legislative efforts
on the political action committees (PACs) spawned in great
numbers under the Federal Election Campaign Act of 1974.
Although many PACs are truly serving the public interest,
others have made it easier for special interests, especially
professional and trade associations, to funnel funds into the
campaign treasuries of legislators or challengers who will
predictably vote for those interests. Restrictions, such as
limiting the total amount legislative candidates could accept
from PACs, would be salutary \14\ but no legislation aimed
primarily at the PAC phenomenon--not even legislation to
eliminate PACs altogether--would solve the problem so well
summarized by Elizabeth Drew. The special interests and
favor-seeking individual givers would find other ways of
funneling their dollars into politically useful channels, and
the harassed members of Congress would have to continue to
demean themselves by constant begging.
PAC regulation and all the other forms of statutory
regulation suffer from one fundamental weakness: none of them
would affect the multimillion-dollar self-financed campaign.
Yet it is this type of campaign that does more than any other
to confirm the widely held view that high office in the
United States can be bought.
Short of a constitutional amendment, there is only one kind
of proposal, so far as I know, that would curb the super-rich
candidate, as well as setting limits for others. Lloyd N.
Cutler, counsel to the president in the Carter White House,
has suggested that the political parties undertake the task
of campaign finance regulation.\15\ Theoretically, the
parties could withhold endorsement from candidates who refuse
to abide by the party-prescribed limits and other
regulations. But the chances of this happening seem just
about nil. Conceivably a national party convention might
establish such regulations for its presidential primaries,
but to date most contenders have accepted the limits imposed
under the matching system of public funding; John Connally of
Texas was the exception in 1980. For congressional races,
however, it is not at all clear what body or bodies could
make such rules and enforce them. Claimants to such authority
would include the national conventions, national committees,
congressional party caucuses, various state committees, and,
in some cases, country committees. Perhaps our national
parties should be more hierarchically structured, but the
fact is that they are not.
On top of all this, the system would work for general
election campaigns only if both major parties took parallel
action. If by some miracle they did so, the end result might
be to encourage third-party and independent candidacies.
Let me make clear that I am not opposed to any of the
proposals briefly summarized earlier. To the extent I had the
opportunity to vote for any of the statutory proposals during
my years in the House, I did so. Nor am I arguing that a
constitutional amendment by itself would solve the problem;
it would only be the beginning of a very difficult task. What
I am saying is that, short of effective action by the
parties, any system to reverse the present lethal trends in
campaign financing must have as a basic element the
restoration to the Congress of the authority to regulate the
process.

the merits of the buckley ruling

The justices of the Supreme Court were all over the lot in
the Buckley case, with numerous dissents from the majority
opinion. The most significant dissent, in my view, was
entered by Justice White, who, alone among the justices, had
had extensive experience in federal campaigns. White's
position was that the Congress, and not the Court, was the
proper body to decide whether the slight interference with
First Amendment freedoms in the Federal Election Campaign Act
was warranted. Justice White reasoned as follows:
``The judgment of Congress was that reasonably effective
campaigns could be conducted within the limits established by
the Act. . . . In this posture of the case, there is no sound
basis for invalidating the expenditure limitations, so long
as the purposes they serve are legitimate and sufficiently
substantial, which in my view they are . . .
``. . . expenditure ceilings reinforce the contribution
limits and help eradicate the hazard of corruption. . . .
``Besides backing up the contribution provisions, . . .
expenditure limits have their own potential for preventing
the corruption of federal elections themselves.\16\ ''
Justice White further concluded that
``limiting the total that can be spent will ease the
candidate's understandable obsession with fundraising, and so
free him and his staff to communicate in more places and ways
unconnected with the fundraising function.
``It is also important to restore and maintain public
confidence in federal elections. It is critical to obviate
and dispel the impression that federal elections are purely
and simply a function of money, that federal offices are
bought and sold or that political races are reserved for
those who have the facility--and the stomach--for doing
whatever it takes to bring together those interests, groups,
and individuals that can raise or contribute large fortunes
in order to prevail at the polls.\17\ ''
Two of the judges of the District of Columbia Circuit
Court, which upheld the 1974 act--judges widely respected,
especially for their human rights concerns--later wrote law
journal articles criticizing in stinging terms the Supreme
Court's holding that the spending limits were invalid. For
example, the late Judge Harold Leventhal said in the Columbia
Law Review: ``The central question is what is the interest
underlying regulation of campaign expenses and is it
substantial? The critical interest, in my view, is the same
as that accepted by the [Supreme] Court in upholding limits
on contributions. It is the need to maintain confidence in
self-government, and to prevent the erosion of democracy
which comes from a popular view of government as responsive
only or mainly to special interests.\18\
``A court that is concerned with public alienation and
distrust of the political process cannot fairly deny to the
people the power to tell the legislators to implement this
one-word principle: Enough! \19\ ''
Here are excerpts from what Judge J. Skelly Wright had to
say in the Yale Law Journal:
``The Court told us, in effect, that money is speech.
``. . . [This view] accepts without question elaborate mass
media campaigns that have made political communication
expensive, but at the same time remote, disembodied,
occasionally . . . manipulative. Nothing in the First
Amendment . . . commits us to the dogma that money is
speech.\20\
``. . . far from stifling First Amendment values, [the 1974
act] actually promotes them. . . . In place of unlimited
spending, the law encourages all to emphasize less expensive
face-to-face communications efforts, exactly the kind of
activities that promote real dialogue on the merits and leave
much less room for manipulation and avoidance of the
issues.\21\ ''
The Supreme Court was apparently blind to these
considerations. Its treatment was almost entirely
doctrinaire. In holding unconstitutional the limits set by
Congress on total expenditures for congressional campaigns
and on spending by individual candidates, the Court did
not claim that the dollar limits set were unreasonably
low. In the view taken by the Court, such limits were
beyond the power of the Congress to set, no matter how
high.
Only in the case of the $1000 limit set for spending by
independent individuals or groups ``relative to a clearly
identified candidate'' did the Court focus on the level set
in the law. The Court said that such a limit ``would appear
to exclude all citizens and

[[Page S1780]]

groups except candidates, political parties and the
institutional press from any significant use of the most
effective modes of communication.'' \22\ In a footnote, the
Court noted:
``The record indicates that, as of January 1, 1975, one
full-page advertisement in a daily edition of a certain
metropolitan newspaper cost $6,971.04--almost seven times the
annual limit on expenditures ``relative to'' a particular
candidate imposed on the vast majority of individual citizens
and associations.'' \23\
The Court devoted far more space to arguing the
unconstitutionality of this provision than to any of the
other limits, presumably because of this point it had the
strongest case. Judge Leventhal, too, thought the $1000
figure for independent spending was unduly restrictive and
might properly have been struck down. As one who supported
the 1974 act while in the House, I believe, with the benefit
of hindsight, that the imposition of this low limit on
independent expenditures was a grave mistake.
Let us look for a moment at the question of whether
reasonable limits on total spending in campaigns and on
spending by wealthy candidates really do interfere with the
``unfettered interchange of ideas,'' ``the free discussion of
governmental affairs,'' and the ``uninhibited, robust and
wide-open'' debate on public issues that the Supreme Court
has rightly said the First Amendment is designed to
protect.\24\ In Buckley the Supreme Court has answered that
question in the affirmative when the limits are imposed by
law under Congress' conceded power to regulate federal
elections. The Court answered the same question negatively,
however, when the limits were imposed as a condition of
public financing. In narrow legalistic terms the distinction
is perhaps justified, but, in terms of what is desirable or
undesirable under our form of government, I submit that the
setting of such limits is either desirable or it is not.
Various of the solutions proposed to deal with the
campaign-financing problem, statutory and nonstatutory, raise
the same question--for example, the proposal to allow tax
credits only for contributions to candidates who have
accepted spending limits, and the proposal that political
parties should impose limits. All such proposals assume that
it is good public policy to have such limits in place. They
simply seek to avoid the inhibition of the Buckley case by
arranging for some carrot-type motivation for the observance
of limits, instead of the stick-type motivation of compliance
with a law.
I am not, of course, suggesting that those who make these
proposals are wrong to do so. What I am suggesting is that
they should support the idea of undoing the damage done by
Buckley by way of a constitutional amendment.
Summing up the reason for such an amendment, Congressman
Henry Reuss said, ``Freedom of speech is a precious thing.
But protecting it does not permit someone to shout `fire' in
a crowded theater. Equally, freedom of speech must not be
stressed so as to compel democracy to commit suicide by
allowing money to govern elections.\25\

independent expenditures in presidential campaigns

Until now the system of public financing for presidential
campaigns, coupled with limits on private financing, has
worked reasonably well. Accordingly, most of the proposals
mentioned previously for the amelioration of the campaign-
financing problem have been concerned with campaigns for the
Senate and the House.
In 1980 and 1984, however, a veritable explosion occurred
in the spending for the presidential candidates by allegedly
independent cmmittees--spending that is said not to be
authorized by, or coordinated with, the campaign committees.
In both years, the Republican candidates benefited far more
from this type of spending than the Democratic: In 1980, the
respective amounts were $12.2 million and $45,000; in 1984,
$15.3 million and $621,000.\26\
This spending violated section 9012(f) of the Presidential
Campaign Fund Act, which prohibited independent committees
from spending more than $1000 to further a presidential
candidate's election if that candidate had elected to take
public financing under the terms of the act. In 1983 various
Democratic Party entities and the Federal Election
Commission, with Common Cause as a supporting amicus curiac,
sued to have section 9012(f) declared constitutional, so as
to lay the groundwork for enforcement of the act. These
efforts failed. Applying the Buckley precedent, the three-
judge district court that first heard the case denied the
relief sought, and this ruling was affirmed in a 7-to-2
decision by the Supreme Court in FEC v. NCPAC in March
1985.\27\
The NCPAC decision clearly strengthens the case for a
constitutional amendment to permit Congress to regulate
campaign spending. For none of the statutory or party-action
remedies summarized earlier would touch this new eruption of
the money-in-politics volcano.
True, even with a constitutional amendment in place, it
would still be possible for the National Conservative
Political Action Committee or other committees to spend
unlimited amounts for media programs on one side of an issue
or another, and these would undoubtedly have some impact on
presidential--and other--campaigns. However, the straight-out
campaigning for an individual or a ticket, which tends to be
far more effective than focusing on issues alone, could be
brought within reasonable limits.

looking ahead

The obstacles in the way of achieving a reversal of Buckley
by constitutional amendment are, of course, formidable. This
is especially true today when the House Judiciary Committee
is resolutely sitting on other amendments affecting the Bill
of Rights and is not disposed to report out any such
amendments.
In addition to the practical political hurdles to be
overcome, there are drafting problems to solve. The simple
form so far proposed \28\--and quoted previously--needs
refinement.
For example, if an amendment were adopted simply giving to
the Congress and the states the authority to ``enact laws
regulating the amount of contributions and expenditures
intended to affect elections,\29\ the First Amendment
question would not necessarily be answered. The argument
could still be made, and not without reason, that such
regulatory laws, like other powers of the Congress and the
states, must not offend the First Amendment. I asked an
expert in constitutional law how this problem might be dealt
with, and he said the only sure way would be to add the words
``notwithstanding the First Amendment.'' But such an addition
is not a viable solution. The political obstacles in the way
of an amendment overturning Buckley in its interpretation of
the First Amendment with respect to campaign spending are
grievous enough; to ask the Congress--and the state
legislatures--to create a major exception to the First
Amendment would assure defeat.
The answer has to be to find a form of wording that says,
in effect, that the First Amendment can properly be
interpreted so as to permit reasonable regulation of campaign
spending. In my view, it would be sufficient to insert in the
proposed amendment,\30\ after ``The Congress,'' the words
``having due regard for the need to facilitate full and free
discussion and debate.'' Section 1 of the amendment would
then read, ``The Congress, having due regard for the need to
facilitate full and free discussion and debate, may enact
laws regulating the amounts of contributions and expenditures
intended to affect elections to federal office.'' Other ways
of dealing with this problem could no doubt be devised.
Another drafting difficulty arises from the modification in
the proposed amendment of the words ``contributions and
expenditures'' by ``intended to affect elections.'' This
language is appropriate with respect to money raised or spent
by candidates and their committees, but it does present a
problem in its application to money raised and spent by
allegedly independent committees, groups, or individuals. It
could hardly be argued that communications referring solely
to issues, with no mention of candidates, could, consistent
with the First Amendment, be made subject to spending limits,
even if they were quite obviously ``intended to affect'' an
election. Accordingly, a proper amendment should include
language limiting the regulation of ``independent''
expenditures to those relative to ``clearly identified''
candidates, language that would parallel the provisions of
the 1971 Federal Election Campaign Act, as amended.\31\
These are essentially technical problems that could be
solved with the assistance of experts in constitutional law
if the Judiciary Committee of either house should decide to
hold hearings on the idea of a constitutional amendment and
proceed to draft and report out an appropriate resolution.
Many of those in and out of Congress who are genuinely
concerned with political money brush aside the notion of a
constitutional amendment and focus entirely on remedies that
seem less drastic. They appear to assume that Congress is
more likely to adopt a statutory remedy, such as public
financing, than go for an enabling constitutional amendment
that could be tagged as tampering with the Bill of Rights. I
disagree with that assumption.
Incumbents generally resist proposals such as public
financing because challengers might be the major
beneficiaries, but most incumbents tend to favor the idea of
spending limits. The Congress is not by its nature averse to
being given greater authority; that would be especially true
in this case, where until 1976 the Congress always thought it
had such authority. I venture to say that if a carefully
drawn constitutional amendment were reported out of one of
the Judiciary Committees, it might secure the necessary two-
thirds majorities in both houses, with surprising ease.
The various state legislatures might well react in similar
fashion. A power they thought they had would be restored to
them.
The big difficulty is to get the process started, whether
it be for a constitutional amendment or a statutory remedy or
both. Here, the villain, I am afraid, is public apathy.
Unfortunately, the voters seem to take excessive campaign
spending as a given--a phenomenon they can do nothing about--
and there is no substantial consistency for reform. The House
Administration Committee, which in the early 1970s was the
spark plug for legislation, has recently shown little
interest in pressing for any of the legislative proposals
that have been put forward.
The 1974 act itself emerged as a reaction to the scandals
of the Watergate era, and it may well be that major action,
whether statutory or constitutional, will not be a practical
possibility until a new set of scandals bursts into the open.
Meanwhile, the situation will only get worse.

[[Page S1781]]

footnotes

\1\ Personal communication with Joseph L. Rauh, Mar, 1985;
Buckley v. Valeo, 424 U.S. (1976).
\2\ U.S., Congress, House, Committee on House Administration,
Federal Election Campaign Act, Amendments of 1974; Report to
Accompany H.R. 16090, 93rd Cong., 2d sess., 1974, H. Rept.
93-1239, pp. 3-4.
\3\ 424 U.S., p. 264.
\4\ The other representatives were Mrs. Fenwick, Republican
of New Jersey; Ms. Mikulski, Democrat of Maryland; and
Messrs. Bevil, Democrat of Alabama; Donnelly, Democrat of
Massachusetts; D'Amours, Democrat of New Hampshire; Edgar,
Democrat of Pennsylvania; LaFalce, Democrat of New York; and
Wolpe, Democrat of Michigan.
\5\ U.S., Congress, House, Proposing an Amendment to the
Constitution of the United States Relative to Contributions
and Expenditures Intended to Affect Congressional,
Presidential and State Elections, 97th Cong., 2d. sess.,
1982, H.J. Res. 628, p. 2.
\6\ Ibid., 99th Cong., 1st sess., 1985, H.J. Res. 88.
\7\ 424 U.S., p. 27, quoting CSC v. Letter Carriers, 413 U.S.
548, 565 (1973); see also 424 U.S., p. 30.
\8\ Quoted by Congressman Henry Reuss, in U.S., Congress,
House, Congressional Record, daily ed., 97th Cong., 2d sess.,
1982, 128(81):H3900.
\9\ New Yorker, 6 Dec. 1982, pp. 55-56.
\10\ Washington Post, 2 Nov. 1982.
\11\ In the Buckley case the Supreme Court simply assumed
that limits on spending were not a violation of free speech
when acceptance of such limits was made the condition for
receiving public funds. 424 U.S., pp. 85-110. See also
Charles McC. Mathias, Jr., ``Should There Be Public Financing
of Congressional Campaigns?'' this issue of The Annals of the
American Academy of Political and Social Science.
\12\ A variation of the idea of free television and/or mail,
proposed by Common Cause and others, would provide for such
privileges as a means of answering attacks made on candidates
by allegedly independent organizations or individuals. See
Fred Wertheimer, ``Campaign Finance Reform: The Unfinished
Agenda,'' this issue of The Annals of the American Academy of
Political and Social Science.
\13\ See ibid.
\14\ The Obey-Railsback Act, which contained such
restrictions, actually passed the House in 1979, but got no
further. See ibid.
\15\ See Lloyd N. Cutler, ``Can the Parties Regulate Campaign
Financing?'' this issue of The Annals of the American Academy
of Political and Social Science.
\16\ 424 U.S., pp. 263-64.
\17\ Ibid., p. 265.
\18\ Leventhal, ``Courts and Political Thickets,'' Columbia
Law Review, 77:362 (1977).
\19\ Ibid., p. 368.
\20\ Wright, ``Politics and the Constitution: Is Money
Speech?'' Yale Law Journal, 85:1005 (1979).
\21\ Ibid., p. 1019.
\22\ 424 U.S., pp. 20-21.
\23\ Ibid., p. 21.
\24\ Roth v. United States, 354 U.S. 476, 484 (1957); Mills
v. Alabama, 384 U.S. 214, 218 (1966); New York Times v.
Sullivan, 376 U.S. 254, 270 (1964).
\25\ U.S., Congress, House, Congressional Record, 97th Cong.,
2d sess., daily ed., 128(81):H3901.
\26\ New York Times, 19 Mar. 1985.
\27\ FEC v. NCPAC, 105 S. Ct. 1459 (1985).
\28\ U.S. Congress, House, Contributions and Expenditures;
H.J. Res. 628.
\29\ Ibid.
\30\ Ibid.
\31\ 2 U.S. C.A. Sec. 431(17).

Mr. HOLLINGS. Mr. President, that article was 10 years after Buckley
v. Valeo. I am constantly reminded by the opposition that I only got 38
votes in 1997 for my amendment. There is a pleasure, an enjoyment to
this wonderful corruption. There is not any question we used to have a
better conscience. This article shows how even the Senator from Alaska,
Mr. Stevens, and others cosponsored it. I had a dozen Republican
cosponsors.
Now the Senator from Kentucky, Mr. McConnell, and the Senator from
Texas, Mr. Gramm, have it down to a Republican article of faith: We
have the money and they, the Democrats, have the unions, and so we are
not going to limit the money.
Governor George W. Bush has already raised $74 million and spent all
but $8 million of it. He spent $64 million by March. The very idea of
buying the office is a disgrace. It is a disgrace. As Senator Long of
Louisiana said when we passed the Federal Election Campaign Act of
1971, we want to make sure everyone can participate.
Buckley v. Valeo has stood the first amendment on its head. It has
taken it away. That is what the Senator from Wisconsin, the Senator
from Kentucky, and others do not understand.
The Court, in Buckley v. Valeo, amended the first amendment to take
away the speech of the ordinary American in important Federal
elections. There is no question when one has to raise 5.5 million bucks
in a little State like South Carolina--I looked around for somebody
else to run last time. We could not get them to run for Congress
because it cost too much. We could not even get a candidate on our side
in the First District, in the Third District, and all around. It has
gotten to where people say: Look, this thing costs too much; I don't
have the time, I don't have the money.
That is a part of the corruption.
Look at the considerations of Justice White 25 years ago, and I read
from his opinion. I remind everybody that four of the Justices found
money as property and not speech; it could be controlled. It was only
by a 1-vote margin that we are into this 25-year dilemma, like a dog
chasing its tail around and around and the corruption growing and
growing.
I quote from Justice White:

It is accepted that Congress has power under the
Constitution to regulate the election of Federal officers,
including the President and Vice President. This includes the
authority to protect the elective processes against the two
great natural and historical enemies of all republics--open
violence and insidious corruption.

Then talking about the insidious corruption:

Pursuant to this undoubted power of Congress to vindicate
the strong public interest in controlling corruption and
other undesirable uses of money in connection with election
campaigns, the Federal Election Campaign Act substantially
broadened the reporting and disclosure requirements that so
long have been a part of the Federal law. Congress also
concluded that limitations on contributions and expenditures
were essential if the aims of the act were to be achieved
fully.

Buckley v. Valeo limited contributions. It took away freedom of
speech under the premise here--what a terrible thing. I have the quotes
from the distinguished Senator from Kentucky that ``we eviscerate the
first amendment with this Hollings-Specter amendment that limits who
may speak, when they may speak, what they may speak''--by the way, this
applies to the press--``what they may report, when they may report and
who may report.''
Actually, there is no question that the decision in Buckley amended
the first amendment. What we are trying to do is complete a uniformity
where everybody is treated equally, the speech of the contributor as
well as the speech of the candidate.
Going on, I quote from Justice White:

The congressional judgment which was ours to accept was
that other steps must be taken to counter the corrosive
effects of money in Federal election campaigns.

This is 25 years ago:

One of these steps is 608(e), which aside from those funds
that are given to the candidate or spent at his request or
with his approval or cooperation, limits what a contributor
may independently spend in support or denigration of one
running for Federal office.

That is the soft money about which we are talking. Moving on, I
quote:

Congress was plainly of the view that these expenditures
also have the potential for corruption. But the Court claimed
more insight as to what may improperly influence candidates
than is possessed by the majority of Congress that passed
this bill, and the President who signed it. Those supporting
the bill undeniably include many seasoned professionals who
have been deeply involved in elective processes and have
viewed them at close range over many years.

Then he goes on:

I have little doubt, in addition, that limiting the total
that can be spent will ease the candidate's understandable
obsession with fundraising and so free him and his staff to
communicate in more places and ways unconnected with the
fundraising function.

Actually talking about freedom of speech, you have time to talk to
constituents. I remember after the last campaign, I went around the
State, county to county, and they said: Fritz, why in the world are you
coming around? You just won. I said: Yeah, but I really didn't get to
talk to the voters. I had to talk to contributors. I didn't have time
for the voters other than during the scheduled debates. I would like to
meet the voters and talk to them in a more intimate way. That is quoted
in the press.
This is 25 years ago, foreseeing the corruption.
I quote from Justice White:

There is nothing objectionable, indeed, it seems to me a
weighty interest in favor of the provision in the attempt to
insulate the political expression of Federal candidates from
the influence inevitably exerted by the endless job of
raising increasingly large sums of money. I regret that the
Court has returned them all to the treadmill.
It is also important to restore and maintain public
confidence in Federal elections. It is critical to obviate or
dispel the impression that Federal elections are purely and
simply a function of money, that Federal officers are bought
and sold, or that political races are reserved for those who
have the facility and the stomach for doing whatever it takes
to bring together those interest groups and individuals who
can raise or contribute large fortunes in order to prevail at
the polls.

I could go on and on. There is no question that we had a very erudite
observation here by Justice White, very visionary. Everybody says: You
have to have somebody who has vision. That is a visionary statement in
Buckley v.

[[Page S1782]]

Valeo. Even though it was in a dissenting opinion, it foretold what we
were going to run into.
Once the campaign was over, I thought we would come up here and work
for the people of the United States, not for ourselves. We could give
all the time to our treadmill here, as Justice White says, but we raise
the money, raise the money, raise the money, raise the money. It goes
on and on and it takes away from our actual function as the most
deliberative body.
Yes, we got only 38 votes the last time. The conscience is
diminishing. We got a majority vote back in the 1980s back when we had
a conscience.
We also once had a conscience on the budget. Now we hold the totally
false premise that a deficit is a surplus. I do not have today's data,
but I have the day before yesterday's. We have The Public Debt To the
Penny. I ask unanimous consent to have that printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The Public Debt to the Penny
[Current 03/24/2000--$5,730,876,091,058.27]
Current month: Amount
03/23/2000................................. $5,729,458,665,582.66
03/22/2000................................. 5,727,734,275,348.06
03/21/2000................................. 5,728,846,067,846.82
03/20/2000................................. 5,728,253,942,273.38
03/17/2000................................. 5,728,671,330,064.36
03/16/2000................................. 5,724,694,663,639.63
03/15/2000................................. 5,747,793,381,625.76
03/14/2000................................. 5,748,566,517,856.04
03/13/2000................................. 5,745,831,852,208.71
03/10/2000................................. 5,745,712,662,449.10
03/09/2000................................. 5,744,560,824,206.30
03/08/2000................................. 5,745,125,070,490.06
03/07/2000................................. 5,747,932,431,376.73
03/06/2000................................. 5,745,099,557,759.64
03/03/2000................................. 5,742,858,530,572.10
03/02/2000................................. 5,732,418,769,036.22
03/01/2000................................. 5,725,649,856,797.45
Prior months:
02/29/2000................................. 5,735,333,348,132.58
01/31/2000................................. 5,711,285,168,951.46
12/31/1999................................. 5,776,091,314,225.33
11/30/1999................................. 5,693,600,157,029.08
10/29/1999................................. 5,679,726,662,904.06
Prior fiscal years:
09/30/1999................................. 5,656,270,901,615.43
09/30/1998................................. 5,526,193,008,897.62
09/30/1997................................. 5,413,146,011,397.34
09/30/1996................................. 5,224,810,939,135.73
09/29/1995................................. 4,973,982,900,709.39
09/30/1994................................. 4,692,749,910,013.32
09/30/1993................................. 4,411,488,883,139.38
09/30/1992................................. 4,064,620,655,521.66
09/30/1991................................. 3,665,303,351,697.03
09/28/1990................................. 3,233,313,451,777.25
09/29/1989................................. 2,857,430,960,187.32
09/30/1988................................. 2,602,337,712,041.16
09/30/1987................................. 2,350,276,890,953.00

Note.--Looking for more historic information? Visit the Public Debt
Historical Information archives.

Source: Bureau of the Public Debt.

Mr. HOLLINGS. This is the conscience of this crowd here. When you
can't get votes--it is amazing I get any kind of votes because the
overwhelming majority calls this deficit a surplus. You can find out
that on 9-30-99, the debt was $5.656 trillion. It has now grown to
$5.730 trillion.
I just got back from London. I had lunch there with Parliament, and I
asked the Presiding Officer: Do you all have a deficit or a surplus? He
said: Oh, we have a surplus. We have a balanced budget. I said: How do
you measure it? He said: By the amount of money you have to borrow.
The distinguished Presiding Officer is an eminent certified public
accountant. He knows how to keep the books. He would not go along with
the kinds of books we keep here, showing that we're borrowing money and
calling it a surplus. It's a deficit. It is an increase in the debt.
In addition, the interest expense on the public debt outstanding is
$158,799,000,000. That is what we have spent just on interest costs
since the beginning of the fiscal year. That is the real waste. We had
a conscience under President Reagan; now it's waste, fraud, and abuse.
I served on the Grace Commission. Surely, we could get votes in those
days because we had a conscience.
We don't have a conscience anymore. Thirty-eight votes; I am lucky to
get 18. I don't mind. Somehow, somewhere, some time, this has to be
exposed. It is one grand corruption of the Congress itself. We know it.
Everybody else knows it. The public showed that they know it, too,
during the primaries.
If we do not get a hold of ourselves and do something about it in
this particular session, we are gone goslings. That is all I have to
say.
It is a tragic thing when you have to stand up here and defend the
right of the people to vote on controlling spending in elections. They
have it at city hall with the constable. They have it in the State
capitals with the Governor. Now we have it with the national Congress.
Everybody wants to try to control spending.
We go along with this farce of free speech and that we are amending
the Constitution, really, the first amendment. In reality we are
amending the Constitution to give the first amendment its freedom of
speech. The first amendment gave that freedom of speech, but once money
is attached to the speech, you take it away from those who do not have
money. That is exactly what has occurred.
Buckley v. Valeo has amended the first amendment. They are all so
excited and alarmed about it and laugh as they go back into the
Cloakroom because they know exactly what we are talking about on the
floor. Nobody is here. It is a Tuesday morning and nobody has to vote
until 2:15. We will have a caucus and we will go in and talk about how
we have been doing on fundraising. Then when we get through talking
about doing the fundraising, we will go ahead and vote this down,
according to the Senator from Kentucky. But there will come another
day. I am glad for the 6-year term. We have a little time left. I have
been at it some 20 years now. We will continue. It takes a little time.
But what Justice White stated back in Buckley v. Valeo has come to
pass. It has brought us to where the most deliberative body can't
deliberate.
I retain the remainder of my time and suggest the absence of a
quorum. Does the other side have any time? Both sides?
The PRESIDING OFFICER. The other side has 3 minutes.
Mr. HOLLINGS. Well, I think we will allocate the time to both sides.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, there is a right way and a wrong way of
reforming our system of campaign finance. The Hollings proposal to
amend our Constitution is simply the wrong way. It would, in effect,
amend the first amendment to our Constitution to allow any
``reasonable'' restrictions to be placed on independent campaign
expenditures and contributions. Why does he propose that we amend the
first amendment? Because the Supreme Court of the United States has
held that restrictions on independent expenditures violate the first
amendment's free speech protection and that such restrictions could
only be justified upon a showing of a compelling--as opposed to any
reasonable--reason.
The Hollings amendment would gut the free speech protections of the
first amendment. It would allow the curtailing of independent campaign
expenditures that could overcome the natural advantage that incumbents
have. It would, thus, limit free speech and virtually guarantee that
incumbents be reelected. Thus, the Hollings amendment could change the
very nature of our constitutional democratic form of government by
establishing what the Founders of the Republic feared most: a permanent
elite or ruling oligarchy. Let me explain.
The very purpose of the first amendment's free speech clause is to
ensure that the people's elected officials effectively and genuinely
represent the public. For elections to be a real check on government,
free speech must be guaranteed--both to educate the public about the
issues, and to allow differing view points to compete in what Oliver
Wendell Holmes called ``the market place of ideas.''
Simply put, without free speech, government cannot be predicated
upon, what Thomas Jefferson termed, ``the consent of the governed.''
Without free speech, there can be no government based on consent
because consent can never be informed.
The Supreme Court of the United States recognized this fundamental
principle of democracy in the 1976 case of Buckley v. Valeo, 424 U.S. 1
(1976). The Court in Buckley recognized that free speech is meaningless
unless it is

[[Page S1783]]

effective. In the words of Justice White, ``money talks.'' Unless you
can get your ideas into the public domain, all the homilies and
hosannas to freedom of speech are just plain talk. Thus, the Supreme
Court held that campaign contributions and expenditures are speech--or
intrinsically related to speech--and that the regulating of such funds
must be restrained by the prohibitions of the first amendment.
The Buckley Court made a distinction between campaign contributions
and campaign expenditures. The Court found that free speech interests
in campaign contributions are marginal at best because they convey only
a generalized expression of support. But independent expenditures are
another matter. These are given higher first amendment protection
because they are direct expressions of speech. The Court reaffirmed the
principles it outlined in Buckley just a few months ago in Nixon v.
Shrink Missouri Gov't.
Consequently, because contributions are tangential to free speech,
Congress has a sizeable latitude to regulate them in order to prevent
fraud and corruption. But not so with independent expenditures. In the
words of the Court:

A restriction on the amount of money a person or group can
spend necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached. This
is because virtually every means of communicating in today's
mass society requires the expenditure of money. [424 U.S. at
19-20].

The Hollings amendment's allowance of restrictions on expenditures by
Congress and state legislatures would impose direct and substantial
restraints on the quantity of political speech. It would permit placing
drastic limitations on both individuals and groups from spending money
to disseminate their own ideas as to which candidate should be
supported and what cause is just. The Supreme Court noted that such
restrictions on expenditures, even if ``neutral as to the ideas
expressed, limit political expression at the core of our electoral
process and of the First Amendment freedoms.'' [Buckley at 39].
Indeed, even candidates under the Hollings proposal could be
restricted in engaging in protected first amendment expression. Justice
Brandeis observed, in Whitney v. California, 274 U.S. 357, 375 (1927),
that in our republic, ``public discussion is a political duty,'' and
that duty will be circumscribed where a candidate is prevented from
spending his or her own money to spread the electoral message. That a
candidate has a first amendment right to engage in public issues and
advocate particular positions was considered by the Buckley Court to be
of:

. . . particular importance . . . candidates [must] have
the unfettered opportunity to make their views known so that
the electorate may intelligently evaluate the candidates'
personal qualities and their positions on vital public issues
before choosing among them on election day. 424 U.S. at 53.

Campaign finance reform should not be at the expense of free speech.
This amendment--in trying to reduce the costs of political campaigns--
could cost us so much more: our heritage of political liberty. Without
free speech our Republic would become a tyranny. Even the liberal
American Civil Liberties Union opposes Hollings-type approaches to
campaign reform and called such approaches a ``recipe for repression.''
The simple truth is that there are just too many on the other side of
the aisle that believe that the first amendment is inconsistent with
campaign finance reform. That is why they are pushing the Hollings
proposal. To quote House Minority Leader Richard Gephardt, ``[w]hat we
have is two important values in direct conflict: freedom of speech and
our desire for a healthy campaign in a healthy democracy. You can't
have both.''
I strongly disagree. You can have both. We have to have both. For
without both, the very idea of representative democracy is imperiled.
That is why I oppose the Hollings amendment.
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. LEAHY. 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. LEAHY. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. Senator Hollings controls the time until 11:45
a.m.
Mr. LEAHY. Mr. President, does the Senator from Vermont have 30
minutes under a previous order?
The PRESIDING OFFICER. The Senator from Vermont has 22 and a half
minutes.
Mr. LEAHY. Mr. President, my understanding was that the Senator from
Vermont had 30 minutes in the order entered into last week.
The PRESIDING OFFICER. The Senator is correct, but the UC was amended
by a subsequent UC that moved the time from the beginning time to
11:45.
Mr. LEAHY. Mr. President, I ask unanimous consent that the Senator
from Vermont be restored to his full 30 minutes, following the time of
the Senator from South Carolina.
Mr. HOLLINGS. If the Senator will yield, I am trying to retain some
time for my cosponsor, Senator Specter from Pennsylvania. I heard 10
minutes ago he was on his way to the floor. I would be glad for the
Senator to proceed if we could reserve 10 minutes of time when Senator
Specter gets here at 11:45.
Mr. LEAHY. Mr. President, I tell the Senator that my only concern--
and I am perfectly willing to make sure he is protected, however the
time works. I think by mistake somebody on the other side of the aisle
yielded some of my time without my permission.
I ask unanimous consent that I be restored to a full 30 minutes,
without in any way interfering with the time of the Senator.
The PRESIDING OFFICER. Was that starting time 30 minutes from this
moment and then to reserve the 10 minutes for Senator Specter?
Mr. LEAHY. Yes, I will start now. But the distinguished Senator from
South Carolina will not lose any of the time reserved for him.
The PRESIDING OFFICER. He will retain his 10 minutes, that is
correct. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, on April 20, 1999, 14 young students and a
teacher lost their lives at Columbine High School in Littleton, CO.
That was one of a series of deadly incidents of school violence over
the last 2 years. The day that happened, the Senate Judiciary Committee
was not engaged in working on crime proposals or public safety issues.
That day, like today, we were devoting our attention to the symbolism
of this proposed amendment to the Constitution, which would weaken the
first amendment for the first time in history, so that we might make
criminal the burning of the American flag.
Scores of our Nation's children have been killed and wounded over the
last 2 years. They haven't been killed or wounded by burning flags.
They have been killed and wounded by firearm violence. Our loss has
been from school violence that has shaken communities across this
country.
Unfortunately, the Republican leadership in the Senate and the House
have not found time to have the juvenile crime bill conference meet and
resolve the differences. So even though we have passed a juvenile crime
bill, one that has modest gun control in it, the gun lobby said we
can't meet on that. We cannot have meetings on it. We cannot resolve
those differences. Instead, we step forward and say to the American
people: We will protect your children, we will protect your schools, we
will make sure we have a constitutional amendment banning the burning
of flags.
Like all Americans, all parents, I abhor the burning of flags. But
like American parents, especially those with children in school, I know
the danger to those children of gun violence and other criminal
activity in this country is far more of a danger than the burning of a
flag.

The Republican majority has not moved the emergency supplemental
appropriations bill that is needed to provide Federal assistance to
victims of Hurricane Floyd, or to help those who need fuel assistance,
or to fund our men and women engaged in international peacekeeping
efforts in Kosovo. Nor has the Republican majority moved responsibly to
help fill the 77 judicial vacancies plaguing the Federal courts around
the Nation. Nor has the majority yet moved a budget resolution to meet
the April 1 and April 15

[[Page S1784]]

deadlines of the Budget Act. I recall that 2 years ago no final budget
resolution passed the Congress, and I hope that experience of
congressional inattention will not be repeated. We need to raise the
minimum wage, pass a Patients' Bill of Rights, approve prescription
drug benefits, and authorize the FDA to help stem the public health
hazard of tobacco products. There is a lot to be done, and very little
is being done.
I came to the Senate again last week to urge action on the juvenile
crime conference. This Congress has kept the country waiting too long
for action on juvenile crime legislation and sensible gun safety laws.
We are fast approaching a first-year anniversary of the shooting at
Columbine High School in Littleton, CO, without any response from
Congress except for a bill that passed the Senate 3-to-1, a bill that
we all praised and took credit for, a bill that, unfortunately, didn't
go anywhere. It sat in a closed conference, behind a door that says:
Parents of America cannot be admitted.
If we did all our work, if we did something about gun violence, if we
did something about our children who are dying in the streets of
America, if we did something about school safety and something about
juvenile justice, if we passed our budget on time, as the law requires,
if we did something on medical privacy, if we did those things, fine,
set aside a couple of weeks for symbolic actions. But let's do our work
first. Let's do the things that should be done first.
Next month, Americans have to have their tax returns in, by April 15,
because it is the law. It is also the law that says we are supposed to
get our budget done. But we won't. The Congress of the United States
has shown 2 years ago that we have not followed the law.
For some time I have been urging the Senate to rededicate itself to
the work of helping parents, teachers, police and others to curb school
violence. On May 11 last year, the Republican majority in the Senate
allowed us to turn our attention to the important problems of school
violence and juvenile crime. Over the ensuing two weeks the Senate
worked its way through scores of amendments. The Hatch-Leahy juvenile
justice legislation that passed the Senate last May 20, received a
strong bipartisan majority of 73 votes. Under the plan put forward by
the Republican leader, this juvenile justice legislation had become the
vehicle for the anti-violence amendments adopted by the Senate last
May.
I urged a prompt conference. When things bogged down, I took the
unusual step of coming to the Senate to offer a unanimous consent
request to move to conference on the legislation, which eventually
provided the blueprint for finally agreeing to conference on July 28.
Unfortunately, the conference was convened for a single afternoon of
speeches. Democrats from the House and Senate tried to proceed, to
offer motions about how to proceed, and to begin substantive
discussion, but we were ruled out of order by the Republican majority.
Since that time I have returned to the Senate a number of times to
speak to these important issues and to urge the Republican to reconvene
the juvenile crime conference. I have joined with fellow Democrats to
request both in writing and on the floor that the majority let us
finish our work on the conference and send a good bill to the
President. On October 20, 1999, all the House and Senate Democratic
conferees sent a letter to Senator Hatch and Congressman Hyde calling
for an open meeting of the juvenile crime conference. On March 3, 2000,
after yet another shocking school shooting involving 6-year-old
classmates in Michigan, Representative Conyers and I wrote again to
Senator Hatch and Congressman Hyde requesting an immediate meeting of
the conference. The response has been resounding silence.
I worry that after a major debate on the floor, one in which we have
both Republicans and Democrats bring up amendments and pass some and
vote down others, we then let the subject of juvenile justice languish.
We have seen press releases, but the families of America have yet to
see a bill.
Three weeks ago, I was honored to be invited to a White House summit
by the President of the United States. He had three other Members of
Congress--the distinguished chairman of the House Judiciary Committee,
Henry Hyde; the distinguished chairman of our Judiciary Committee,
Senator Hatch; and the distinguished ranking member of the House
Judiciary Committee, Congressman Conyers. We met in the Oval Office in
a rather extraordinary meeting. I have been to many over 25 years, and
I do not remember one where the President stayed so engaged for such a
long period of time in such a frank and open exchange.
The President concurs with the reconvening of the conference and
action by the Congress to send him a comprehensive bill before the 1-
year anniversary of the Columbine tragedy. But all of his entreaties
have been rebuffed as well. We have been in recess more than we have
been in session since that time. Take a couple of days and wrap this
up, and send it to the President.
Democrats have been ready for months to reconvene the juvenile crime
conference and put together an effective juvenile justice conference
report that would include reasonable gun safety provisions. It bothers
me that this Senate, under its majority leadership, cannot find the
time nor the will to pass balanced, comprehensive juvenile justice
legislation.
With respect to juvenile crime, I hope the majority will heed the
call of our Nation's law enforcement officers to act now to pass a
strong and effective juvenile justice conference report. Ten national
law enforcement organizations representing thousands of law enforcement
officers have endorsed the Senate-passed gun safety amendment. They
support loophole-free firearm laws.
These are the ones who do:
International Association of Chiefs of Police;
International Brotherhood of Police Officers;
Police Executive Research Forum;
Police Foundation;
Major Cities Chiefs;
Federal Law Enforcement Officers Association;
National Sheriffs Association;
National Association of School Resource Officers;
National Organization of Black Law Enforcement Executives; and
Hispanic American Police Command Officers Association.
Should we not at least listen to the law enforcement people who are
asked every day to put their lives on the line to protect all of us,
and should we not at least listen to them when they say, Pass this
modest bill? But no. We see the gun lobbies run all kinds of ads
basically telling the Congress, Don't do it; we will not allow you to
do it. The Congress meekly says, Yes, sir; yes, sir; we will let the
gun lobby run our schedule--not those of us who are elected to do it.
I was in law enforcement. I spent 8 years in law enforcement. I know
law enforcement officers in this country need help in keeping guns out
of the hands of people who should not have them.
I am not talking about people who use guns for hunting or for sport,
as my neighbors and I do in Vermont, but about criminals and
unsupervised children. The thousands of law enforcement officers
represented by these organizations are demanding the Congress act now
to pass a strong and effective juvenile justice conference. As leader
of the Democrats on this side, I am willing to meet on a moment's
notice to do that.
Every parent, teacher and student in this country is concerned about
school violence over the last two years and worried about when the next
shooting may occur. They pray it does not happen at their school or
involve their children.
We all recognize that there is no single cause and no single
legislative solution that will cure the epidemic of youth violence in
our schools or in our streets. But we have an opportunity before us to
do our part. We should seize this opportunity to act on balanced,
effective juvenile crime legislation, and measures to keep guns out of
the hands of children and away from criminals. It is well past the time
for Congress to act.
Instead, the Senate will be called upon to devote several more days
this week to debating this proposal to amend the Constitution to
restrict the First Amendment's fundamental protection of political
expression for the

[[Page S1785]]

first time in our nation's history in order to criminalize flag burning
as a form of political protest. We can debate that. But can't we take
at least as much time to debate things that will actually involve the
safety of our children?
I am prepared to debate the merits of the proposed constitutional
amendment to restrict political speech. I contributed to an extensive
set of minority views in the Committee's report that lay out the flaws
in the proponents' arguments and the case for protecting the
Constitution and our Bill of Rights. We have debated this before and
must do so, again.
I treat proposals to amend the Constitution with utmost seriousness.
Our role in the process is a solemn responsibility. But when we have
concluded this debate, as we will in the next few days, I hope that the
juvenile crime bill conference committee will complete its work. I hope
that we will move the emergency supplemental appropriations needed to
help our citizens hurt by Hurricane Floyd and by high fuel prices. I
hope that we will vote to increase the minimum wage without further
delay; I hope that we will enact a real patients' bill of rights, and
that we will approve a meaningful prescription drug benefit, and that
we will pass the statutory authority now needed by the FDA to regulate
tobacco products. I hope that we will vote on the scores of judicial
nominations sent to us by the President to fill the 77 vacancies
plaguing the federal courts and our system of justice; and I hope that
we will make progress on the many other matters that have been
sidetracked by the majority.
My friends on the Republican side of the Senate control the schedule.
They set the priorities. But I hope they realize that these are
priorities of the American people and will allow us to vote on them.
Mr. President, on the proposed constitutional amendment we are
debating, I note that the minority views in the committee report extend
over 30 pages, yet we are asked to limit the debate on the proposal to
2 hours. Nobody wants to filibuster a proposal. But if we are going to
amend the Constitution, especially if we are going to amend the first
amendment, and especially if we are going to amend the Bill of Rights
for the first time in over 200 years, I think the American people
deserve more than a couple of hours of chitchat and quorum calls to
discuss what we are going to do.
I look forward to hearing from Senator Feingold, the ranking member
of the Constitution Subcommittee. I look forward to hearing from
Senator Bob Kerrey, the only Congressional Medal of Honor recipient
among us; or Senator Robb, of Virginia, who is a decorated veteran and
distinguished Senator; and, of course, the constitutional sage of the
Senate, the senior Senator from West Virginia, Mr. Robert C. Byrd.
The Senate was intended to be a place for thoughtful debate, for the
offering of amendments and for votes on amendments. We should not
short-change this debate. Let us do justice to the task of considering
this constitutional amendment before we are called upon to vote, again.
This afternoon we will first vote on the Flag Protection Act
amendment offered by Senators McConnell, Bennett, Dorgan and Conrad
with the support of Senators Dodd, Torricelli, Bingaman, Lieberman and
Byrd. Having reviewed that proposal, I intend to support it as well. It
is a statutory alternative to the proposed constitutional amendment.
Now, let us remember one thing. No matter how Senators vote on the
proposed amendment, either for or against it, there is one thing that
unites every single Member of this body. We all agree that flag burning
is a despicable and reprehensible act. It is usually done to show great
disrespect to our country and our institutions and all it stands for.
It has to be especially offensive to those who put their lives on the
line for this country, whether in the Armed Forces, law enforcement, or
elsewhere.
But the ultimate question before us is not whether we agree that flag
burning is a despicable and reprehensible act. We all agree that it is.
The issue is whether we should amend the Constitution of the United
States, with all the risks that entails, and narrow the precious
freedoms ensured by the First Amendment for the first time in our
history, so that the Federal Government can prosecute the tiny handful
of Americans who show contempt for the flag. Such a monumental step is
unwarranted and unwise.
Proponents of the constitutional amendment note the views of
distinguished American veterans and war heroes who have expressed their
love of the flag and support for the amendment. Those who fought and
sacrificed for our country deserve our respect and admiration. I
remember very much the letters that came back from my uncle in World
War II, and other friends and neighbors in subsequent wars.
They know the costs as well as the joys of freedom and democracy.
Their sacrifices are lessons for us all in what it means to love and
honor our flag and the country and the principles for which our flag
stands. On this question of amending our Constitution, some would like
to portray the views of veterans as being monolithic, when in fact many
outstanding veterans oppose the amendment.
Above all, these veterans believe that they fought for the freedoms
and principles that make this country great, not just the symbols of
those freedoms. To weaken the nation's freedoms in order to protect a
particular symbol would trivialize and minimize their service.
Last year, we were honored to have former Senator John Glenn, my dear
friend, who served this nation with special distinction in war and in
peace and in the far reaches of space, come back to the Senate to
testify before the Judiciary Committee. This is a veteran of both World
War II and the Korean conflict.
He told us:

It would be a hollow victory indeed if we preserved the
symbol of our freedoms by chipping away at those fundamental
freedoms themselves. Let the flag fully represent all the
freedoms spelled out in the Bill of Rights, not a partial,
watered-down version that has altered its protections.
The flag is the nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our most
revered symbol. But it is a symbol. It symbolizes the
freedoms that we have in this country, but it is not the
freedoms themselves. . . .
Those who have made the ultimate sacrifice, who died
following that banner, did not give up their lives for a red,
white and blue piece of cloth. They died because they went
into harm's way, representing this country and because of
their allegiance to the values, the rights and principles
represented by that flag and to the Republic for which it
stands.

These are powerful words from our former colleague, John Glenn, a man
we all agree is a true American hero.
Last spring I wrote to General Colin L. Powell, our Chairman of the
Joint Chiefs of Staff during the Persian Gulf War, about this proposed
constitutional amendment. I thank him for having answered the call and
for adding his powerful voice to this debate. He wrote me the
following:

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.

Mr. President, I ask for unanimous consent to have the full text of
General Powell's letter printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

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.

[[Page S1786]]

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. LEAHY. Gary May lost both his legs while serving this country in
Vietnam. He spoke about how he felt and why he did not feel that we
should amend the Constitution on this point:

I am offended when I see the flag burned or treated
disrespectfully. As offensive and painful as this is, I still
believe that those dissenting voices need to be heard. This
country is unique and special because the minority, the
unpopular, the dissenters and the downtrodden, also have a
voice and are allowed to be heard in whatever way they choose
to express themselves that does not harm others. The freedom
of expression, even when it hurts, is the truest test of our
dedication to the belief that we have that right . . .
Freedom is what makes the United States of America strong
and great, and freedom, including the right to dissent, is
what has kept our democracy going for more than 200 years.
And it is freedom that will continue to keep it strong for my
children and the children of all the people like my father,
late father in law, grandfather, brother, me, and others like
us who served honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se. It's
in the principles that it stands for and the people who have
defended them. My pride and admiration is in our country, its
people and its fundamental principles. I am grateful for the
many heroes of our country and especially those in my family.
All the sacrifices of those who went before me would be for
naught, if an amendment were added to the Constitution that
cut back on our First Amendment rights for the first time in
the history of our great nation.
I love this country, its people and what it stands for. The
last thing I want to give the future generations are fewer
rights than I was privileged to have. My family and I served
and fought for others to have such freedoms and I am opposed
to any actions which would restrict my children and their
children from having the same freedoms I enjoy.

Many thoughtful and patriotic veterans object to this attempt to
legislate patriotism. Those who testified before the Committee did not
have to prove their patriotism. They are automatically, by their
service to this country, true patriots. They spoke in eloquent terms
about the importance of respect and love for country coming from the
heart of a citizen or a soldier, not being imposed from without by the
government.
I have thought so many times when I have been in countries where
dictators rule to be able to say to them, do you have laws that require
everybody to respect the symbols of your country, and they say, of
course we have laws and we will prosecute anybody who doesn't obey the
laws and respect the symbols of our country.
I say, we are better in our country. We don't need the laws. We are a
nation of a quarter of a billion people and our people respect the
symbols of this great nation and what it stands for, without having to
have the ``flag police'' on the corner, without having to have laws
passed by Congress. They do it because they honor those symbols.
For the same reason, my family and I fly the flag proudly at our home
in Vermont. We know it is protected by the people of Vermont. We also
know that it would probably be a very foolish thing for anybody to step
foot on the property to do any damage to that flag. But we don't have
to worry about it. People drive by, smile and wave. They know what a
proud symbol it is and how proudly we fly the flag.
I remember what Senator Bob Kerrey, the only recipient of the
Congressional Medal of Honor currently serving in the United States
Congress, said last year: ``Real patriotism cannot be coerced. It must
be a voluntary, unselfish, brave act to sacrifice for others.'' Senator
Kerrey reminded us that in this country we believe that ``it is the
right to speak the unpopular and objectionable that needs the most
protecting by our government.'' Speaking specifically of the act of
flag burning, he added: ``Patriotism calls upon us to be brave enough
to endure and withstand such an act--to tolerate the intolerable.''
The late John Chafee, a distinguished member of this body and a
highly decorated veteran of World War II and Korea, pointed out that
just as forced patriotism is far less significant than voluntary
patriotism, a symbol of that patriotism that is protected by law will
be not more, but less worthy of respect and love. He said: ``We cannot
mandate respect and pride in the flag. In fact, in my view taking steps
to require citizens to respect the flag, sullies its significance and
symbolism.''
James Warner, a decorated Marine flyer who was a prisoner of war of
the North Vietnamese for six years, has made this point in graphic
terms. He wrote:

I remember one interrogation where I was shown a photograph
of some Americans protesting the war by burning a flag.
``There,'' the officer said. ``People in your country protest
against your cause. That proves that you are wrong.''
``No.'' I said, ``that proves that I am right. In my
country we are not afraid of freedom, even if it means that
people disagree with us.'' The officer was on his feet in an
instant, his face purple with rage. He smashed his fist onto
the table and screamed at me to shut up. While he was ranting
I was astonished to see pain, compounded by fear, in his
eyes. I have never forgotten that look, nor have I forgotten
the satisfaction I felt at using his tool, the picture of the
burning flag, against him . . .
We don't need to amend the Constitution in order to punish
those who burn our flag. They burn the flag because they hate
America and they are afraid of freedom. What better way to
hurt them than with the subversive idea of freedom? . . .
Don't be afraid of freedom, it is the best weapon we have.

Mr. President, I ask for unanimous consent to have the James Warner
editorial printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

When They Burned the Flag Back Home--Thoughts of a Former POW

(By James H. Warner)

In March of 1973, when we were released from a prisoner of
war camp in North Vietnam, we were flown to Clark Air Force
base in the Philippines. As I stepped out of the aircraft I
looked up and saw the flag. I caught my breath, then, as
tears filled my eyes, I saluted it. I never loved my country
more than at that moment. Although I have received the Silver
Star Medal and two Purple Hearts, they were nothing compared
with the gratitude I felt then for having been allowed to
serve the cause of freedom.
Because the mere sight of the flag meant so much to me when
I saw it for the first time after 5\1/2\ years, it hurts me
to see other Americans willfully desecrate it. But I have
been in a Communist prison where I looked into the pit of
hell. I cannot compromise on freedom. It hurts to see the
flag burned, but I part company with those who want to punish
the flag burners. Let me explain myself.
Early in the imprisonment the Communists told us that we
did not have to stay there. If we would only admit we were
wrong, if we would only apologize, we could be released
early. If we did not, we would be punished. A handful
accepted, most did not. In our minds, early release under
those conditions would amount to a betrayal, of our comrades
of our country and of our flag.
Because we would not say the words they wanted us to say,
they made our lives wretched. Most of us were tortured, and
some of my comrades died. I was tortured for

[[Page S1787]]

most of the summer of 1969. I developed beriberi from
malnutrition. I had long bouts of dysentery. I was infested
with intestinal parasites. I spent 13 months in solitary
confinement. Was our cause worth all of this? Yes, it was
worth all this and more.
Rose Wilder Lane, in her magnificent book ``The Discovery
of Freedom,'' said there are two fundamental truths that men
must know in order to be free. They must know that all men
are brothers, and they must know that all men are born free.
Once men accept these two ideas, they will never accept
bondage. The power of these ideas explains why it was illegal
to teach slaves to read.
One can teach these ideas, even in a Communist prison camp.
Marxists believe that ideas are merely the product of
material conditions; change those material conditions, and
one will change the ideas they produce. They tried to ``re-
educate'' us. If we could show them that we would not abandon
our belief in fundamental principles, then we could prove the
falseness of their doctrine. We could subvert them by
teaching them about freedom through our example. We could
show them the power of ideas.
I did not appreciate this power before I was a prisoner of
war. I remember one interrogation where I was shown a
photograph of some Americans protesting the war by burning a
flag. ``There,'' the officer said. ``People in your country
protest against your cause. That proves that you are wrong.''
``No,'' I said. ``That proves that I am right. In my
country we are not afraid of freedom, even if it means that
people disagree with us.'' The office was on his feet in an
instant, his face purple with rage. He smashed his fist onto
the table and screamed at me to shut up. While he was ranting
I was astonished to see pain, compounded by fear, in his
eyes. I have never forgotten that look, nor have I forgotten
the satisfaction I felt at using his tool, the picture of the
burning flag, against him.
Aneurin Bevan, former official of the British Labor Party,
was once asked by Nikita Khrushchev how the British
definition of democracy differed from the Soviet view. Bevan
responded, forcefully, that if Khrushchev really wanted to
know the difference, he should read the funeral oration of
Pericles.
In that speech, recorded in the Second Book of Thucydides'
``History of the Peloponnesian War,'' Pericles contrasted
democratic Athens with totalitarian Sparta. Unlike the
Sparatans, he said, the Athenians did not fear freedom.
Rather, they viewed freedom as the very source of their
strength. As it was for Athens, so it is for America--our
freedom is not to be feared, for our freedom is our strength.
We don't need to amend the Constitution in order to punish
those who burn our flag. What better way to hurt them than
with the subversive idea of freedom? Spread freedom. The flag
in Dallas was burned to protest the nomination of Ronald
Reagan, and he told us how to spread the idea of freedom when
he said that we should turn American into ``a city shining on
a hill, a light to all nations.'' Don't be afraid of freedom,
it is the best weapon we have.

Mr. LEAHY. Those of us who oppose the constitutional amendment
concerning flag protests understand that the political pressure for
this amendment is strong, but our hope is that the Senate will in the
end heed the wisdom of John Glenn, when he urged us to reject the
amendment:

There is only one way to weaken the fabric of our country,
and it is not through a few misguided souls burning our flag.
It is by retreating from the principles that the flag stands
for. And that will do more damage to the fabric of our nation
than 1,000 torched flags could ever do. . . . History and
future generations will judge us harshly, as they should, if
we permit those who would defile our flag to hoodwink us into
also defiling our Constitution.

We should not adopt a proposal that will whittle away at the first
amendment for the first time in our history. We act here as stewards of
the Constitution, guardians and trustees of a precious legacy. The
truly precious part of that legacy does not lie in outward things--in
monuments or statues or flags. All that those tangible things can do is
remind us of what is precious--our liberty.
Our Constitution guards our freedoms and the first amendment is the
marble of our democracy; it is the bedrock of our rights and
constitutional protections. It guarantees the freedom of religion--the
freedom to practice a religion or not to practice a religion, as you
believe. It guarantees our freedom of speech. By doing that, it
guarantees diversity. If you guarantee diversity, you guarantee
democracy. Our bill of rights has been doing that for over 200 years.
We are the envy of the world because of the way we protect our
freedoms.
Look at all the other countries, countries that have not achieved and
will not achieve greatness because they stifle dissent, because they do
not allow freedom of expression.
If, God forbid, some natural disaster or terrorist act swept away all
the monuments of this country, the Republic would survive just as
strong as ever. But if some failure of our souls were to sweep away the
ideals of Washington, Jefferson and Lincoln, then not all the stone,
not all the marble, not all the flags in the world would restore our
greatness. Instead, they would be mocking reminders of what we had
lost.
I trust this Senate will uphold the Constitution and the first
amendment. I trust this Senate will uphold the lessons of history. I
trust this Senate will tell the founders of this Nation, when they
wrote the bill of rights, they gave us a precious gift that we would
hold unchanged throughout our lives and the lives of our children and
the lives of our grandchildren, because that is the way we honor our
country.
That is the way we honor the sacrifices of so many millions who
protected our freedoms throughout the years.
Mr. President, do I still have time?
The PRESIDING OFFICER. Twelve seconds.
The Chair recognizes the Senator from Pennsylvania.
Mr. SPECTER. I thank the Chair.
Mr. President, I have sought recognition to comment on the amendment,
whose principal sponsor is the Senator from South Carolina, Mr.
Hollings, which would authorize the Congress and State legislatures to
limit campaign contributions and campaign expenditures.
Senator Hollings and I have been the principal cosponsors of this
provision since 1988. It is denominated as a constitutional amendment,
but, in fact, it is not a constitutional amendment, but instead it is a
provision which would alter the opinion of the Supreme Court of the
United States in Buckley v. Valeo which says that money was equated
with speech. I believe that to be an incorrect constitutional
interpretation, as do 209 professors of law who have submitted a
statement urging the overruling of Buckley v. Valeo.
Since the Supreme Court of the United States is not about to do that,
the only recourse is to follow the procedure today on what is
denominated a constitutional amendment, but it is not a constitutional
amendment because there is nothing in the first amendment which says
speech is money. That is not in the first amendment. The first
amendment guarantees freedom of speech, and an opinion by a majority of
the Supreme Court of the United States in Buckley v. Valeo has made
that interpretation.
Just as in the flag-burning case, there is nothing in the first
amendment which says freedom of speech includes the right to burn an
American flag. But in a 5-4 decision, the Supreme Court handed down
that interpretation. It is important to note, as a matter of
constitutional law, what the Supreme Court says is denominated as the
opinion of the Court. If any effort were to be made to change the
language of the first amendment, I would strenuously oppose any such
effort. But the provision to allow Congress and State legislatures to
control campaign contributions and expenditures does not do that.
On a purely personal note, this decision had special significance for
me on January 30, 1976, the day it was handed down, because at that
time I was in the middle of a campaign for the Republican nomination to
the Senate for the Commonwealth of Pennsylvania. When the campaign
started in the fall of 1975, the campaign finance law of 1974 governed,
which limited the contributions of an individual for his own candidacy
to $35,000, which was about the size of my bank account.
My opponent in the campaign was Congressman John Heinz. On January
30, the Supreme Court said that any individual can spend whatever he
chose, millions if he chose, and John did. That was the balance of the
election.
At the same time, the Supreme Court said that my brother, Morton
Specter, who had the financial ability to finance my campaign--not in
the Heinz style, perhaps, but adequately--was limited to $1,000 which
was provided for in the law. The question, I think not illogically,
came to my mind: What was the difference between John Heinz's money and
Morton Specter's money? But that is what the Supreme Court said, and
they said it in a very curious way.
They said:

[[Page S1788]]

In order to preserve the provisions against invalidation on
vagueness grounds--

They cite the statute--

it must be construed to apply only to expenditures for
communications that express in terms that advocate the
election or defeat of a clearly identified candidate for
Federal office.

They then drop to a footnote:

. . . which required language such as ``vote for,''
``elect,'' ``support,'' ``cast your ballot for,'' ``Smith for
Congress,'' ``vote against,'' ``defeat and reject.''
That has led to the very extraordinary so-called issue
advertisements, which are not controllable, where they are bought by
soft money. Listen to a couple of illustrative issue advertisements in
the 1996 campaign for President Clinton in the summer of 1996, which
ultimately tipped the scales:
``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 8 million of them,'' ``opportunity,''
``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.''
That is curiously, insanely categorized not as an advocacy
advertisement, but only an issue ad. But what quality is there in the
English language which could more emphatically say: Elect President
Clinton, defeat Senator Dole?
That is the consequence when millions of dollars are poured into
campaigns in soft money, unregulated under the decision of the Supreme
Court in Buckley v. Valeo.
I note one very important factor: That the consequence of this
provision, denominated as an amendment, is not to put into effect any
specific reforms, but only to give the Congress of the United States
the authority constitutionally to do so. This does not say what
corporations can do, what unions can do, what individuals can do. It
says only that the constraint of Buckley v. Valeo, the opinion of
Justices in a split Court, will not preclude Congress from acting on
the very important item of having democracy prevail in elections.
It is totally antithetical, in my opinion, to have money equated with
power in a democracy. It subverts the principle of one man-one woman
equals to one vote if power is equal to money and the rich can dominate
the electoral process.
I do not believe that Members of the House and Senate sell their
votes, although there is a widespread perception of that kind of
corruption.
There is a problem of access which I try to deal with by holding town
meetings in the 67 counties in Pennsylvania. On recent economies where
the budgets of Senators are limited as to mailing, it has not been
possible for me to mail all of my constituents who attended the town
meetings. But I think that is a very practical answer to those who
complain about access.
If Senators go to the county seat to be in the proximity of their
constituents and let their constituents know by a postcard that the
Senator will be present at a given time, a given place to answer their
questions, then I think that kind of a guarantee of access would answer
a great many skeptical comments about fundraisers and the purchase of
access.
That is why I am proposing legislation which would permit a Senator
to supplement his mailing budget for one postcard, once a year, to each
constituent in each county, providing the Senator personally appears at
that event.
The reality is, many Senators do not undertake town meetings anymore
because they are very rough, tough affairs where people come in--may
the Record show a smile on the face of the Presiding Officer, the
distinguished Senator from Wyoming--they are rough, tough affairs.
I think the cost would probably be fairly low because I think
relatively few Senators would avail themselves of that opportunity.
In conclusion, let me remind my colleagues that what Senator Hollings
and I are proposing does not change the language of the first
amendment, but instead it substitutes our judgment for the judgment of
the Court on what is an opinion of the interpretation of the
Constitution's first amendment.
I ask unanimous consent that a list of the 209 scholars calling for
the reversal of Buckley be printed in the Record and that the bill for
postal mailings also be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Statement in Support of Overturning Buckley v. Valeo

(This statement was organized jointly by: Brennan Center for Justice at
NYU School of Law, National Voting Rights Institute, U.S. Public
Interest Research Group)

In its 1976 decision, Buckley v. Valeo, the Supreme Court
of the United States held that mandatory campaign spending
limits are an unconstitutional denial of free speech.
We believe that the Buckely decision should be overturned.
The decision overstated the extent to which reasonable limits
on campaign expenditures impinge on free speech. The Court
also underestimated the corrosive effect of unlimited
campaign expenditures on the integrity of our political
process.
We the undersigned call for the reconsideration and
overturning of the Buckley decision.

209 scholars Opposing Buckley v. Valeo

Prof. Lee A. Albert, Professor of Law, SUNY at Buffalo
School of Law.
Prof. George J. Alexander, Elizabeth H. & John A. Sutro
Professor & Director, Institute of International &
Comparative Law, Santa Clara University School of Law.
Prof. Dean Alfange, Jr., Professor of Political Science,
University of Massachusetts at Amherst, Political Science
Dept.
Prof. Francis A. Allen, Huber C. Hurst Eminent Scholar
Emeritus, University of Florida, College of Law.
Prof. Jose Julian Alvarez Gonzalez, Professor of Law,
University of Puerto Rico School of Law.
Prof. Howard C. Anawalt, Professor of Law, Santa Clara
University School of Law.
Prof. Claudia Angelos, Professor of Clinical Law, New York
University School of Law.
Prof. Ellen P. April, Professor of Law, Loyola University
School of Law.
Prof. Peter Arenella, Professor of Law, UCLA School of Law.
Prof. Robert Aronson, Professor of Law, University of
Washington School of Law.
Prof. Gerald G. Ashdown, Professor of Law, West Virginia
University College of Law.
Prof. Gordon E. Baker, Professor Emeritus of Political
Science, University of California at Santa Barbara.
Prof. Thomas E. Baker, James Madison Chair in
Constitutional Law and Director of the Constitutional Law
Resource Center, Drake University Law School.
Prof. Fletcher N. Baldwin, Jr., S.D. Dell Research Scholar
& Professor of Law, University of Florida, College of Law.
Prof. William C. Banks, Professor of Law, Syracuse
University College of Law.
Prof. Loftus E. Becker, Jr., Professor of Law, University
of Connecticut School of Law.
Prof. Patricia A. Behlar, Associate Professor of Social
Science, Pittsburg State University.
Prof. Robert W. Benson, Professor of Law, Loyola University
School of Law.
Prof. Gary L. Blasi, Professor of Law, UCLA School of Law.
Prof. Vincent A. Blasi, David Lurton Massee, Jr. Professor
of Law, University of Virginia School of Law.
Prof. Henry J. Bourguignon, Professor of Law &
Distinguished University Professor, University of Toledo
College of Law.
Prof. Craig M. Bradley, James Louis Calamaras Professor of
Law, Indiana University School of Law, Bloomington.
Prof. Mark E. Brandon, Assistant Professor of Political
Science, University of Michigan.
Prof. Daan Braveman, Dean & Professor of Law, Syracuse
University College of Law.
Prof. Richard A. Brisbin, Jr., Associate Professor of
Political Science, West Virginia University.
Prof. Judith Olans Brown, Professor of Law, Northeastern
University School of Law.
Prof. G. Sidney Buchanan, Baker & Botts Professor of Law,
University of Houston Law Center.
Prof. Thomas D. Buckley, Professor of Law, Cleveland State
University, Cleveland-Marshall College of Law.
Prof. Sarah E. Burns, Professor of Clinical Law, New York
University School of Law.
Prof. William G. Buss, O.K. Patton Professor of Law,
University of Iowa College of Law.
Prof. Richard M. Buxbaum, Jackson H. Ralston Professor &
Dean, International & Area Studies, University of California
at Berkeley School of Law.
Prof. Bert C. Buzan, Professor of Political Science,
California State University, Fullerton.
Prof. Paulette M. Caldwell, Professor of Law, New York
University School of Law.
Prof. Lief H. Carter, McHugh Family Distinguished
Professor, The Colorado College.
Prof. Paul G. Chevigny, Professor of Law, New York
University School of Law.
Prof. Robert N. Clinton, Wiley B. Rutledge Professor,
University of Iowa College of Law.
Prof. Joshua Cohen, Arthur & Ruth Sloan Professor of
Political Science & Professor of Philosophy, Massachusetts
Institute of Technology.

[[Page S1789]]

Prof. William Cohen, C. Wendell & Edith M. Carlsmith,
Professor of Law, Stanford Law School.
Prof. Charles D. Cole, Lucille Beeson Professor, Cumberland
School of Law of Samford University.
Prof. C. Michael Comiskey, Associate Professor of Political
Science, Penn State, Fayette Campus.
Prof. Robert A. Dahl, Sterling Professor Emeritus of
Political Science, Yale University.
Prof. David J. Danelski, Mary Lou & George Boone
Centennial, Professor Emeritus, Stanford University.
Prof. Perry Dane, Professor of Law, Rutgers University
School of Law, Camden.
Prof. George Dargo, Professor of Law, New England School of
Law.
Prof. Derek H. Davis, Director, J.M. Dawson Institute of
Church-State Studies, Baylor University School of Law.
Prof. Howard E. David, Professor of Political Science,
Randolph-Macon College.
Prof. John A. Davis, Professor Emeritus of Political
Science, City College of the City University of New York.
Prof. John Denvir, Professor of Law, University of San
Francisco School of Law.
Prof. David F. Dickson, Professor of Law, Florida State
University College of Law.
Prof. Victoria J. Dodd, Professor of Law, Suffolk
University Law School.
Prof. Jameson W. Doig, Professor, Department of Politics &
Woodrow Wilson School, Princeton University.
Prof. Dennis D. Dorin, Professor of Political Science,
University of North Carolina at Charlotte.
Prof. Norman Dorsen, Stokes Professor of Law, New York
University School of Law.
Prof. Donald W. Dowd, Professor of Law, Villanova
University School of Law.
Prof. Rochelle C. Dreyfuss, Professor of Law & Director of
the Engelberg Center on Innovation Law & Policy, New York
University School of Law.
Prof. J.D. Droddy, Assistant Professor of Government,
Western Kentucky University.
Prof. Melvyn R. Durchslag, Professor of Law, Case Western
Reserve University Law School.
Prof. Ronald M. Dworkin, Frank H. Sommer Professor of Law,
New York University School of Law.
Prof. Peter D. Enrich, Professor of Law, Northeastern
University School of Law.
Prof. Michael Esler, Assistant Professor of Political
Science, Ohio Wesleyan University.
Prof. Daryl R. Fair, Professor of Political Science, The
College of New Jersey.
Prof. Antonio Fernos, Professor of Law, Inter American
University Law School.
Prof. Nancy H. Fink, Professor of Law, Brooklyn Law School.
Prof. Edwin B. Firmage, Samuel D. Thurman Professor of Law,
University of Utah College of Law.
Prof. James E. Fleming, Associate Professor of Law, Fordham
University School of Law.
Prof. Edward B. Foley, Associate Professor of Law, The Ohio
State University College of Law.
Prof. W. Ray Forrester, Professor of Law, University of
California, Hastings, College of Law.
Dean Arthur N. Frakt, Dean, Widener University School of
Law.
Prof. Beatrice S. Frank, Clinical Associate Professor, New
York University School of Law.
Prof. Paula Galowitz, Professor of Clinical Law, New York
University School of Law.
Prof. Daniel G. Gibbens, Regents' Professor of Law,
University of Oklahoma College of Law.
Prof. Stephen Gillers, Professor of Law, New York
University School of Law.
Prof. James M. Glaser, Associate Professor of Political
Science, Tufts University.
Prof. Alvin L. Goldman, Dorothy Salmon Professor,
University of Kentucky College of Law.
Prof. Roger L. Goldman, Professor of Law, St. Louis
University School of Law.
Prof. Sheldon Goldman, Professor of Political Science,
University of Massachusetts at Amherst, Political Science
Dept.
Prof. Leslie F. Goldstein, Unidel Professor of Political
Science, University of Delaware.
Prof. Howard A. Gordon, Professor Emeritus, City College of
Chicago.
Prof. Howard L. Greenberger, Professor of Law, New York
University School of Law.
Prof. Benjamin Gregg, Assistant Professor of Government,
University of Texas at Austin.
Prof. David L. Gregory, Professor of Law, St. John's
University School of Law.
Prof. Martin Guggenheim, Clinical Professor & Director,
Clinical & Advocacy Programs, New York University School of
Law.
Prof. Lani Guinier, Professor of Law, University of
Pennsylvania Law School.
Prof. Samuel O. Gyandoh, Jr., Professor of Law, Temple
University School of Law.
Prof. Michael G. Hagen, Associate Professor of Government,
Harvard University.
Prof. Richard L. Hasen, Associate Professor of Law, Loyola
University School of Law.
Prof. Francis H. Heller, Roy A. Roberts Professor of Law &
Political Science Emeritus, University of Kansas School of
Law.
Prof. Helen Hershkoff, Assistant Professor of Law, New York
University School of Law.
Prof. Richard A. Hesse, Professor of Law, Franklin Pierce
Law Center.
Prof. Philip B. Heymann, James Barr Ames Professor of Law,
Harvard Law School.
Prof. Daniel N. Hoffman, Associate Professor of Political
Science, Johnson C. Smith University.
Prof. Thomas P. Huff, Lecturer in Law & Professor of
Philosophy, University of Montana School of Law.
Prof. Joseph Richard Hurt, Dean & Professor of Law,
Mississippi College School of Law.
Prof. Stewart M. Jay, Professor of Law, University of
Washington School of Law.
Prof. John Paul Jones, Professor of Law, University of
Richmond, T. C. Williams, School of Law.
Prof. Ronald Kahn, Monroe Professor of Politics & Law,
Oberlin College.
Prof. Stephen Kanter, Professor of Law (Dean 1986-1994),
Lewis & Clark Northwestern School of Law.
Prof. Kenneth L. Karst, David G. Price & Dallas P. Price,
Professor of Law, UCLA School of Law.
Prof. Thomas A. Kazee, Professor of Political Science,
Davidson College.
Prof. Edward Kearny, Professor of Government, Western
Kentucky University.
Prof. Gregory C. Keating, Professor of Law, University of
Southern California Law Center.
Prof. Alan Keenan, Lecturer on Social Studies, Harvard
University.
Prof. Christine Hunter Kellett, Professor of Law,
Pennsylvania State University, Dickinson School of Law.
Prof. Robert B. Kent, Professor of Law Emeritus, Cornell
Law School.
Prof. Mark Kessler, Chair & Professor of Political Science,
Bates College.
Prof. Philip C. Kissam, Professor of Law, University of
Kansas School of Law.
Prof. Robert A. Kocis, Professor of Political Science,
University of Scranton.
Prof. Donald P. Kommers, Joseph & Elizabeth Robbie
Professor of Government & International Studies & Professor
of Law, Notre Dame Law School.
Prof. Milton R. Konvitz, Professor Emeritus of Law, Cornell
Law School.
Prof. J. Morgan Kousser, Professor of History & Social
Science, Caltech--Division of the Humanities & Social
Sciences.
Prof. Paul M. Kurtz, J. Alton Hosch Professor & Associate
Dean, University of Georgia School of Law.
Prof. James A. Kushner, Professor of Law, Southwestern
University School of Law.
Prof. Robert W. Langran, Professor of Political Science,
Villanova University.
Prof. Lewis Henry LaRue, Alumni Professor of Law,
Washington & Lee University School of Law.
Prof. Sylvia Ann Law, Elizabeth K. Dollard Professor of
Law, Medicine & Psychology & Co-Director, Arthur Garfield
Hays Civil Liberties Memorial Program, New York University
School of Law.
Prof. Timothy O. Lenz, Associate Professor of Political
Science, Florida Atlantic University.
Prof. Frederick P. Lewis, Professor of Political Science,
University of Massachusetts at Lowell.
Prof. Peter Linzer, Law Foundation Professor of Law,
University of Houston Law Center.
Prof. Robert Justin Lipkin, Professor of Law, Widener
University School of Law.
Prof. Stephen Loffredo, Associate Professor of Law, CUNY
School of Law.
Prof. Jim Macdonald, Professor of Law, University of Idaho
College of Law.
Hugh C. Macgill, Dean, University of Connecticut School of
Law.
Prof. Holly Maguigan, Professor of Clinical Law, New York
University School of Law.
Prof. Joan Mahoney, Professor of Law & Dean Emeritus,
Western New England College School of Law.
Prof. Karl M. Manheim, Professor of Law, Loyola University
School of Law.
Prof. Clair W. Matz, Professor of Political Science,
Marshall University.
Prof. Christopher N. May, James P. Bradley Chair in
Constitutional Law, Loyola University School of Law.
Prof. William Shepard McAninch, Solomon Blatt Professor,
University of South Carolina School of Law.
Prof. Wayne McCormack, Professor of Law, University of Utah
College of Law.
Prof. W. Joseph McCoy, Associate Professor of Public
Administration, Marshall University.
Prof. Patrick C. McGinley, Professor of Law, West Virginia
University College of Law.
Prof. Wayne V. McIntosh, Associate Professor of Political
Science, Dept. of Government & Politics, University of
Maryland.
Prof. Evan McKenzie, Assistant Professor of Political
Science, University of Illinois at Chicago, Political Science
Dept.
Prof. Edward A. Mearns, Jr., Professor of Law, Case Western
Reserve University Law School.
Prof. Frank I Michelman, Harvard Law School.
Hon. Abner J. Mikva, Walter V. Schaefer Fellow in Public
Policy & Visiting Professor of Law, University of Chicago Law
School.
Prof. Mark C. Miller, Associate Professor of American
Government, Clark University.
Prof. Arval A. Morris, Professor of Law, University of
Washington School of Law.
Prof. Kenneth M. Murchison, James E. & Betty M. Phillips
Professor, Louisiana State University Law Center.
Prof. Carol Nackenoff, Chair, Department of Political
Science, Swarthmore College.
Prof. James A. R. Nafziger, Thomas B. Stoel Professor of
Law, Willamette University College of Law.
Prof. Thomas Nagel, Professor of Philosophy & Law, New York
University School of Law.

[[Page S1790]]

Prof. Sheldon Nahmod, Distinguished Professor of Law,
Chicago-Kent College of Law.
Prof. John B. Neibel, Professor & John B. Neiber Chair,
University of Houston Law Center.
Prof. Burt Neuborne, John Norton Pomeroy Professor of Law &
Legal Director, Brennan Center for Justice, New York
University School of Law.
Prof. Michael DeHaven Newsom, Associate Dean for Academic
Affairs, Howard University School of Law.
Prof. Nell Jessup Newton, Professor of Law, American
University, Washington, College of Law.
Prof. Gene R. Nichol, Dean Emeritus & Professor of Law,
University of Colorado School of Law.
Prof. Harold Norris, Distinguished Professor Emeritus,
Detroit College of Law at Michigan State University.
Prof. John E. Nowak, David C. Baum Professor of Law,
University of Illinois College of Law.
Prof. James M. O'Fallon, Frank Nash Professor of Law,
University of Oregon School of Law.
Prof. Marcia O'Kelly, Professor of Law, University of North
Dakota School of Law.
Prof. Daniel R. Ortiz, Professor of Law, University of
Virginia School of Law.
Prof. Vernon Valentine Palmer, Thomas Pickles Professor of
Law, Tulane University School of Law.
Prof. Simon D. Perry, Professor of Political Science,
Marshall University.
Prof. Daniel H. Pollitt, Kenan Professor Emeritus of Law,
University of North Carolina School of Law.
Prof. H. Jefferson Powell, Professor of Law, Duke
University School of Law.
Prof. Albert T. Quick, Dean & Professor of Law, University
of Toledo College of Law.
Prof. Jamin Ben Raskin, Professor of Law & Pauline Ruyle,
Moore Scholar, American University, Washington College of
Law.
Prof. John Rawls, Professor of Philosophy, Harvard
University.
Prof. Clifford Rechtschaffen, Associate Professor of Law,
Golden Gate University School of Law.
Prof. David A. J. Richards, Edwin D. Webb Professor of Law,
New York University School of Law.
Prof. Daniel C. Richman, Associate Professor of Law,
Fordham University School of Law.
Prof. Cary Rickabaugh, Associate Professor of Political
Science, Rhode Island College.
Prof. Joel E. Rogers, Professor of Law & Sociology,
University of Wisconsin Law School.
Prof. Rand E. Rosenblatt, Professor of Law & Associate
Dean, Academic Affairs, Rutgers University School of Law,
Camden.
Prof. Victor G. Rosenblum, Nathaniel L. Nathanson
Professor, Northwestern University School of Law.
Prof. Albert J. Rosenthal, Dean Emeritus & Maurice T.
Moore, Professor Emeritus of Law, Columbia University School
of Law.
Prof. Gregory D. Russell, Director, Criminal Justice
Program & Associate Professor, Washington State University.
Prof. Rosemary C. Salomone, Professor of Law, St. John's
University School of Law.
Prof. Thomas O. Sargentich, Professor of Law, American
University, Washington College of Law.
Prof. Thomas M. Scanlon, Harvard University Philosophy
Department.
Prof. Douglas D. Scherer, Professor of Law, Touro College,
Jacob D. Fuchsberg Law Center.
Prof. Lawrence Schlam, Professor of Law, Northern Illinois
University College of Law.
Prof. Leo L. Schmolka, Professor of Law, New York
University School of Law.
Prof. Jeffrey M. Shaman, Professor of Law, De Paul
University College of Law.
Prof. Peter M. Shane, Dean & Professor of Law, University
of Pittsburgh School of Law.
Prof. Sidney A. Shapiro, John M. Rounds Professor,
University of Kansas School of Law.
Prof. Stephen Kent Shaw, Professor of Political Science,
Northwest Nazarene College.
Prof. Steven H. Shiffrin, Professor of Law, Cornell Law
School.
Prof. David M. Skover, Professor of Law, Seattle University
School of Law.
Prof. W. David Slawson, Torrey H. Webb Professor,
University of Southern California Law Center.
Prof. Rogers M. Smith, Professor of Political Science, Yale
University.
Prof. Barbara R. Snyder, Professor of Law, The Ohio State
University College of Law.
Dean Aviam Soifer, Dean & Professor of Law, Boston College
Law School.
Prof. Rayman L. Solomon, Associate Dean, Northwestern
University School of Law.
Prof. Frank J. Sorauf, Regents' Professor Emeritus of
Political Science, University of Minnesota.
Prof. Troy M. Stewart, Chair & Professor of Political
Science, Marshall University.
Prof. Marc Stickgold, Professor of Law, Golden Gate
University School of Law.
Prof. Peter L. Strauss, Betts Professor of Law, Columbia
University School of Law.
Prof. Kenneth W. Street, Professor of Political Science,
Austin College.
Prof. Frank R. Strong, Cary Boshamer Distinguished
Professor Emeritus of Law, University of North Carolina
School of Law.
Prof. Allen N. Sultan, Professor of Law, University of
Dayton School of Law.
Prof. Cass R. Sunstein, Karl N. Llewellyn Distinguished
Professor of Law, University of Chicago Law School.
Prof. Mary Thornberry, Professor of Political Science,
Davidson College.
Prof. Michael C. Tolley, Associate Professor of Political
Science, Northeastern University.
Prof. James W. Torke, Professor of Law, Indiana University
School of Law, Indianapolis.
Prof. Jon M. Van Dyke, Professor of Law, University of
Hawaii, William S. Richardson School of Law.
Prof. Kenneth Vinson, Professor of Law, Florida State
University College of Law.
Prof. Burton D. Wechsler, Alumni Distinguished Teacher &
Professor, American University, Washington College of Law.
Prof. Eldon D. Wedlock, Jr., David H. Means Professor of
Law, University of South Carolina School of Law.
Prof. Philip Weinberg, Professor of Law, St. John's
University School of Law.
Prof. Brian A. Weiner, Assistant Professor of Politics,
University of San Francisco.
Prof. Harry H. Wellington, Dean & Professor, New York Law
School.
Prof. William E. Westerbeke, Professor of Law, University
of Kansas School of Law.
Prof. James G. Wilson, Professor of Law, Cleveland State
University, Cleveland-Marshall College of Law.
Prof. Louis E. Wolcher, Professor of Law, University of
Washington School of Law.
Prof. Raymond L. Yasser, Professor of Law, University of
Tulsa College of Law.
Prof. Steven Zeidman, Associate Professor of Law, New York
University School of Law.
____

S. --

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. MAIL ALLOWANCES FOR SENATORS.

Section 506 of the Supplemental Appropriations Act, 1973 (2
U.S.C. 58) is amended by inserting after subsection (b) the
following:
``(c) In addition to the funds provided for in subsection
(b), the amount available to a Member under subsection
(b)(3)(A)(iii) shall include an additional amount sufficient
to pay the expenses that would be incurred mailing 1 letter
to each postal address in each county in the State of that
Member where the Member holds and personally attends a town
meeting (not to exceed 1 town meeting per county per
year).''.

The PRESIDING OFFICER. The Senator's time has expired.
Mr. HOLLINGS. Mr. President, I think we have 5 more minutes. I yield
the time to the distinguished Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. I thank my distinguished colleague from South Carolina.
I think brevity is ideal, and I have said what I have to say. I would
not oppose a constitutional amendment to limit Senators' speeches to 10
minutes generally. But I thank my colleague from South Carolina.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Vermont.
Mr. LEAHY. I wish to commend the Senator from Pennsylvania for his
comments about town meetings. But I hope there are Senators in this
body who will do town meetings. I expect there probably are some. I
think they are the most advantageous thing we could possibly do in
rural States like mine and, I think, like the distinguished Presiding
Officer's State. I do not think either one of us would ever come back
here if we were not willing to do them. I think that is the experience
of most Senators.
I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent to speak on the
amendment related to flag burning.
The PRESIDING OFFICER. We have a unanimous consent agreement that
actually runs over on the time we are allocated. Is the Senator asking
unanimous consent to extend the time?
Mr. DURBIN. I ask unanimous consent to speak for 10 minutes on the
flag burning amendment.
Mr. HOLLINGS. Mr. President, I have time left. I would be glad to
yield it to the distinguished Senator from Illinois. I have no
objection to the 10-minute request.
The PRESIDING OFFICER. The Senator has 3\1/2\ minutes left. There are
meetings we have to get to.
Mr. DURBIN. Mr. President, it is my understanding we will now go to a
quorum call rather than to have me speak for 10 minutes?
The PRESIDING OFFICER. The quorum call will be charged against
allocated time.
Mr. HATCH. Mr. President, I ask unanimous consent that we be
permitted, on our time, to go up to as long as 12:45.
The PRESIDING OFFICER. Is there objection?

[[Page S1791]]

Without objection, it is so ordered.
Mr. HATCH. Mr. President, even though he is on the other side of this
issue, I yield 10 minutes to the distinguished Senator from Illinois.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I thank my friend and colleague from the State of Utah
for yielding. I am aware of the fact we disagree on this issue. We have
been friends and are adversaries only on issues without any personal
basis.
Mr. President, this has become a perennial issue before the Senate--
the question of whether we will amend the Constitution of the United
States to, in fact, somehow ban the desecration of the American flag.
Make no mistake about it, flag burning is an insensitive and shameful
act. But the issue before us is not whether we support flag burning but
whether we should amend the Constitution, whether we should amend the
Bill of Rights for the first time in the history of the United States
of America, whether we should narrow the precious freedoms ensured by
the first amendment for the very first time in our Nation's history.
When we trace back the origin of this flag burning amendment, we find
that it came about as a result of an act by an individual during the
1984 Presidential election campaign in the State of Texas during the
Republican National Convention. A person went down there and ignited an
American flag, and ignited the passions of many people who feel very
strongly about that symbol of our Nation. It gave rise to an effort on
the floor of the Congress to pass a law which would ban this sort of
activity. Efforts were made, overturned by the Supreme Court, and then
finally a constitutional amendment was offered.
It is interesting, to me, to put this in some context because we are
talking about first amendment rights--rights of expression, rights of
speech--which, in fact, are envied around the world.
As nations came out from under the yoke of communism and were finally
given an opportunity to write their own future, they looked to the
United States, not to our flag--they had their own flag--but to our
values. They said: The United States is different. The United States
respects the rights of individuals to express themselves, even when it
is unpopular.
In many of these same countries, it had been against the law,
punishable by imprisonment, to even question the Government, let alone
to burn the flag of the country. But they said: We are going to walk
away from that totalitarian view of the world. We are going to stand
for freedom, just like the United States of America.
One after another, the leaders of these new democracies came here to
the U.S. Capitol to appear before a joint session of Congress and
really said, in so many words, their model, their ideal, their goal,
was to follow our 200-plus year history of the Bill of Rights.
Those of us who want to stand in defense of the Bill of Rights
understand that sometimes our positions are unpopular and sometimes
uncomfortable. I think back a year ago. Remember, it was just a year
ago the Columbine High School massacre shocked America. It stunned us
to believe this could happen in a school, that innocent children could
be mowed down with guns.
If the epicenter of this shock was at Columbine, it was certainly in
the State of Colorado, as well, as they reflected on this violence.
Do you recall a few days after the Columbine shootings, the National
Rifle Association held its convention in Denver, CO? Those in the
surrounding areas came out to peacefully protest and demonstrate
against the National Rifle Association and its agenda and its
insensitivity to the Columbine High School shootings.
As much as I might disagree with the agenda of the National Rifle
Association, I will have to stand here and say they had a right to
meet. They had a right to meet in Denver, CO, and to express their
points of view. As reprehensible and shameful as some might have found
it, that is a right guaranteed by the first amendment to the
Constitution.
In 1998, in Idaho, white supremacists obtained a permit for a ``100-
man flag parade,'' and they marched, carrying American flags alongside
Nazi banners. The owner of a local bookstore in Coeur D'Alene made a
point of keeping his store opened. He observed: ``Nazis were burning
books in the 1930s, and I don't want them closing stores in the 90s.''
To think of it--Old Glory side by side with the Nazi banner.
I am not certain this amendment would even touch that activity. I
find that reprehensible; I find that disgusting. Yet I understand it.
That is what America is all about. The real test of our belief in the
Bill of Rights, the real test of our belief in freedom of expression is
we stand back and say, as much as we disagree and despise every word
you are saying, you have a right as an American to say it. That is a
core principle of this democracy. That is a principle that is at issue
with the offering of this amendment, this amendment which says: We will
separate out one group of Americans who engage in this despised conduct
of burning flags, and we will say, we will amend the Bill of Rights for
the first time in our history to stop that activity.
Senator Hatch, last year, before the Senate Judiciary Committee,
invited a man I respect very much, Tommy Lasorda, who was a former
manager of the Los Angeles Dodgers, who came and talked about his
strong feelings in support of this amendment. He talked about a day in
the baseball park when someone jumped out of the stands, started to
burn a flag, and one of the other players raced over to grab the flag
and put out the fire, how proud he was that this player--Rick Monday--
would put out the fire of this flag.
I asked Mr. Lasorda a question when it came my turn. I said: As I
understand it, most of the people who jump out of the stands and run
onto the field are not televised. A decision is made by the television
stations and the management not to put the television cameras on these
people who race around the field whenever they do. He said: That is
correct. I said: Why is that? He said: Because if you give them
attention, it just encourages that kind of activity. I said to Mr.
Lasorda--and say today in debate--what more attention could we give to
these dim-witted clods who would burn the flag but to amend the Bill of
Rights for the first time in history? How seldom this occurs, how
reprehensible it is, how awful it would be for us to respond to this
terrible conduct by saying: You have our attention. We are going to
amend the Bill of Rights. We will show you. Then we will see a flood of
this kind of activity, I am afraid.
Some of the people I respect from both sides of the aisle have been
quoted during the course of this debate. Gen. Colin Powell, former
Chairman of the Joint Chiefs of Staff, no one would question his
patriotism, whether they belong to the American Legion or the VFW,
AMVETS, or any veterans group. He opposes this amendment. He wrote a
letter to Senator Leahy in 1999 and said:

General Powell got it right, a man who has served our country, has
put his life on the line in combat like so many other veterans who are
quoted in the minority views and who understand they were fighting for
something more than a piece of cloth. They were fighting for a piece of
history, a piece of history that goes back over 200 years, when men--
and they were all men--came forward to write this document, the
Constitution of the United States and said: We will make certain that
no matter what any State or Federal Government should try to do, we
will hold sacred the rights of an individual for freedom of expression
and freedom of speech no matter how unpopular it may be.
I ask my colleagues in the Senate to join us in condemning the action
but not in desecrating our Bill of Rights. It is a document which has
been a source of pride for many generations. It will continue to be.
Some people say even the word ``desecration'' in this amendment is a
little hard to follow. What is a physical desecration of the flag?
Well, burning it is one illustration, but is it the only one? For
example, I raised this in committee about 2 years ago. Would we

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consider it a desecration of the flag for someone to use an American
flag as a seat cover in their automobile? Some might say that is a
desecration, sitting on the flag. I would ask them to think twice. Take
a trip down to the Lincoln Memorial in Washington, DC. Get up close and
see Abraham Lincoln, that son of Illinois of whom we are so proud. Look
very closely at what he is sitting on. He is sitting on an American
flag. I don't think that is a desecration. I think we understand the
context is trying to indicate the importance of this President.
I urge my colleagues in the Senate to oppose this amendment and yield
the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I am intrigued by the comments of my
colleague from Illinois. I would like to focus all the attention in the
world on those who desecrate the American flag. I think it would be a
great thing. It would help everybody in this country to know how
distasteful it is and how denigrating to our country it is and how
denigrating it is for all those who have died for this country
following the flag, how denigrating it is to everybody who served in
the military, how denigrating it is to every schoolchild, how
denigrating it is to people who believe in values and things that are
right. I have no trouble focusing on somebody who runs on the field
burning a flag. I would like to focus on that creep as much as I could.
I think if we did a little bit more of that, we might find a renewed
resurgence of feelings about our country out there.
To be honest with you, if I interpret what the Senator said, he
basically said that people ought to be able to make their statement. I
wonder if he would be happy to have anybody who wants to make a
statement in our gallery make any statement they want to every day that
we meet. I think he would acknowledge that would disrupt the workings
of the most important legislative body in the world.
There are limitations on everything, including the first amendment.
By the way, how do you call offensive conduct of defecating, urinating
on the flag or burning the flag with contempt, how do you call that
free speech? The Supreme Court apparently has done so, but then, again,
what we are talking about here, just look at this amendment. It is a
very simple amendment. It is not telling us to do anything about the
flag. What it says is: The Congress shall have the power to prohibit
the physical desecration of the flag of the United States. My gosh, it
doesn't tell us what to do. It just says we are going to take back this
power that we had before this other third of the three separate powers,
the judiciary, took it away from us and took it away from 49 States,
all of which have asked us to restore that right to the States and the
Federal Government.
These people are arguing against an amendment that gives the Congress
back the power it had before, that it had for 200 years. Where is the
logic in that? Many of these folks who are going to vote against this
amendment voted for an anti-flag-desecration statute back in 1989. If
they believe it is free speech today to defecate on the flag, then why
wasn't it in 1989 when they voted for that useless statute that I stood
up and said was unconstitutional and voted against and which later was
declared to be what I said it would be, unconstitutional? Why didn't
they vote against it if they are so enamored with this argument on free
speech?
But forget the free speech argument. What about the power of three
separate branches of Government? Why should we let the judiciary tell
49 States and the Congress of the United States we don't have any power
to protect the national symbol of our sovereignty, of our patriotism,
of our Nation? Any self-respecting Senator would want to stand up for
the rights of the Congress, especially since this amendment doesn't say
what we have to do. It basically says we have the right to change
things. That is what you do with a constitutional amendment.
Some opponents of the flag-protection amendment have argued that we
should be passing more restrictions on gun ownership rather than
debating our constitutional amendment to protect the American flag.
Give me a break. Everything is gun amendments around here. We have
20,000 laws, rules, and regulations about guns in this society that
aren't even being enforced by this administration. While I believe
there is no shortage of important issues for the Senate to take up, I
believe the flag amendment is not only vital to protect our shared
values as Americans, but also that this debate is particularly timely
today as we all strive to recover what is good and decent about our
country.

We see evidence of moral decay and a lack of standards all around us.
Our families are breaking down, our communities are being divided, and
there are leaders who are not providing the appropriate moral
leadership for the American public. Our popular culture, including
movies, television, video games, and music, bombards our children with
offensive messages of violence and selfishness. The very disturbing
incidents of gun violence--particularly at our public schools--is a
particular result of a culture that is afraid to teach that certain
ideas are right or wrong. As the saying goes, you have to stand for
something, or you will fall for anything.
Today, the Senate has a unique opportunity to say that our country,
and our culture, does stand for something; that on the issue of
protecting and safeguarding an incident of national sovereignty, we
stand for something. Today, we can reaffirm that all Americans share
certain beliefs and values and a respect for this symbol of our
national sovereignty. We can give a united bedrock of principle to a
generation that is increasingly floating adrift and alone. Think about
it. If we pass this amendment, we will create a debate on values in
this country in all 50 States. That alone justifies this amendment--
although I could give many additional justifications even better than
that.
The disillusioned young people in our society today learn a very
negative lesson by watching our Government sit powerlessly as
exhibitionists and anarchists deface the embodiment of our sovereignty
and our common values. What do you think they take away from watching
people who dishonor the memory of those millions of men and women who
have given their lives for the future of America? Allowing desecration
of the flag lowers again the standards of elemental decency that all of
us must and should live by. This proposed amendment affirms that
without some aspirations to national unity, there might be no law, no
Constitution, no freedoms such as those guaranteed by the Bill of
Rights. The Bill of Rights was never intended to be a license to engage
in any kind or type of behavior that one can imagine. Don't sell this
amendment, and what it stands for, short.
If we pass this amendment by the necessary two-thirds vote, the
Senate will say that our symbol of sovereignty, the embodiment of so
many of our hopes and dreams, can no longer be dragged through the mud,
torn asunder, or defecated on. We will say to the young people of
America that there are ideals worth fighting for and protecting. There
is a reason we are united as Americans, and that our experiment in
democracy has proven to be the most enlightened government in history.
Can anyone think of a better message to send to our young people than
to begin to reclaim the values of liberty, equality, and personal
responsibility that Americans have defended and debated?
The flag amendment is not a distraction from matters of violence and
education and social decay; nor is it an abdication of responsibility,
as it has been called by some who oppose it. If there has been an
abdication of responsibility, it has been to defend the irresponsible
notion that the Bill of Rights exists to allow people to engage in any
type of behavior or conduct that one can imagine. We need more
attention to public values and standards, not less.

I am deeply offended by those who say the Senate has more important
things to do than discuss a flag-protection constitutional amendment. I
urge those of my colleagues who think the Senate is too important for
the American flag to listen to the American people on this issue. I
just came from a press conference where seven Congressional Medal of
Honor recipients were there praying that the people of this country
will get the Members of the

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Senate to support this flag amendment.
The vast majority of our citizens support amending the Constitution
to protect our Nation's flag. Even then, this amendment just says it
gives the right to the Congress to do that. To these citizens and
elected officials, protecting the flag as the symbol of our national
unity and community and utilizing the constitutional amendment process
to do so is no trivial matter.
Sitting in our gallery today are people who put their lives on the
line to defend our flag and the principles for which it stands. These
are the fortunate ones who were not required to make the ultimate
sacrifice like my brother was in the Second World War, and like my
brother-in-law was in Vietnam. Every one of these people--like tens of
thousands of American families across our country--have traded the life
of a loved one for a flag, folded at a funeral. Let's think about that
trade--and about the people who made it for us--before deciding whether
the flag is important enough to be addressed in the Senate.
Given the great significance of the flag, it is not surprising that
support for the flag amendment is without political boundaries. It is
not, as some suggest, a battle between conservatives on one side and
liberals on the other. Indeed, the flag amendment transcends all
political, racial, religious, and socioeconomic divisions. This is
consistently reflected in national polling, in resolutions to Congress
from 49 State legislatures requesting Congress to send the flag
amendment to the States for ratification, and in the support of a
bipartisan supermajority of the House of Representatives both last year
and during the 104th Congress.
Is this overwhelming support for the flag amendment, as manifested
through polling and through the actions of State and national
legislatures, frivolity? Are we trivializing the Constitution, when a
vast majority of Americans speaking for themselves or through elected
representatives seek to utilize the article V amendment process, itself
constructed by our Founding Fathers to right the wrongs of
constitutional misinterpretation? Are we irresponsible if we simply
restore the law as it existed for two centuries prior to two Supreme
Court decisions, which were 5-4 decisions, hotly contested decisions?
Does the principle of ``government by the people'' end where the self-
professed ``experts'' convince themselves that the concerns of the
overwhelming majority of ordinary citizens and their representatives
are not important?
Is the Constitution, which establishes processes for its own
amendment, wrong? I say it is the Constitution which establishes
processes for its own amendment, and it is right. It says that the
Constitution will be amended when two-thirds of the Congress and three-
fourths of the States want to do so. It does not say that this
procedure is reserved for issues that some law professors think are
important, or issues that would crumble the foundations of our great
Republic.

If ``government by the people'' means anything, it means that the
people can decide the fundamental questions concerning the checks and
balances in our Government. The people can choose whether it is
Congress or the Supreme Court that decides whether flag desecration is
against the law.
I urge colleagues to think hard about what they consider to be
``important'' before they conclude that the Senate should ignore the
people and what they think is important and what should be considered
important before they conclude that the Senate should ignore the
people's desire to make decisions about the Government which governs
them. The flag amendment is the very essence of ``government by the
people'' because it reflects the people's decision to give Congress a
power that the Supreme Court has taken away. This question is very
important. I urge my colleagues not to think that this body is above
listening to the vast majority of citizens of this country who want to
give Congress the ability to determine whether and how to protect the
American flag.
People should not say that there are more important issues than this
one. This issue involves the very fabric of our society, what we are
all about, and what our children, we hope, will be all about. This
issue is very important. Anybody who thinks otherwise is trivializing
this very important issue and the 80 percent of the American people who
are strongly for it. The other 20 percent are not strongly against it;
only a small percentage of those are. The rest of them just don't know
or don't care.
You should have been with those seven Congressional Medal of Honor
recipients, Miss America, and a whole raft of other veterans outside as
we talked about why this amendment is important.
Mr. President, I yield the remainder of my time.

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