[Congressional Record Volume 146, Number 36 (Tuesday, March 28, 2000)]
[Senate]
[Pages S1793-S1807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           FLAG DESECRATION CONSTITUTIONAL AMENDMENT--Resumed


                           Amendment No. 2889

  The PRESIDING OFFICER. We now have 4 minutes equally divided under 
the McConnell amendment No. 2889, S.J. Res. 14.
  The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, we all despise those who desecrate the 
flag. The issue before the Senate today is how we should deal with that 
problem.
  In the late 1980s, the Congress passed a statute designed to prohibit 
this vile practice. It was struck down by the Supreme Court on First 
Amendment grounds. For the last several years we have had proposals in 
the Senate to amend the Bill of Rights in order to prohibit flag 
desecration despite the First Amendment. However, I think we should be 
very reluctant about amending the Bill of Rights.
  Therefore, I have offered the amendment which we will be voting on 
shortly. It takes a new a statutory approach that I am confident would 
be upheld by the Supreme Court. Simply put, my alternative approach 
protects the flag by prohibiting three kinds of desecration. First, 
desecration of the flag that incites violence or breach the peace. 
Second, desecration of a flag belonging to the United States 
government. Third, desecration of a flag stolen from someone else and 
destroyed on government land. Anyone who engages in any of this kind of 
reprehensible behavior would be subject to fines of up to $250,000 and/
or imprisoned for up to 2 years. I think this is a better approach than 
tinkering with the Bill of Rights for the first time in 200 years.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I generally support the distinguished 
Senator from Kentucky on all campaign finance reform issues because I 
think he is one of the most learned people, if not the most learned 
person in this area and on many other occasions. On this issue I 
cannot.
  I predicted back in 1989 it was unconstitutional when they passed the 
statute, which passed overwhelmingly by a lot of people who, today, 
when this amendment is finally voted upon, will vote against it. In 
other words, they passed the statute that would do what this amendment 
would allow the Congress, if it so chooses to do, to do.
  It seemed illogical to me they are unwilling to do what really has to 
be done because we have had two statutory attempts to resolve the 
problem of physical desecration of our beloved American flag. Both 
times I predicted it was unconstitutional under the Supreme Court's 
decisions, and both times they were held to be unconstitutional. So a 
statute is not going to do the job.
  In spite of good intentions, the only way we can resolve this problem 
and do it effectively without taking anybody's rights away is to do 
what we are doing--not passing a constitutional amendment that 
prohibits physical desecration of the flag. We are passing a 
constitutional amendment that gives the Congress a coequal status with 
the judiciary, two coequal branches of Government to have the right to 
determine what to do with regard to the flag. That is what we intend to 
do.
  I hope our colleagues will vote against this amendment because it

[[Page S1794]]

would undermine, of course, the constitutional amendment.
  Mrs. BOXER. Mr. President, I rise to oppose amending the Constitution 
of the United States to outlaw flag burning, and I will support the 
McConnell statute to punish flag burners who want to incite violence. 
The flag stands for freedom, and so does our Bill of Rights. I believe 
that both must be protected.
  Colin Powell recently wrote, ``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 in trying to implement the body of law 
that will emerge from such an amendment.''
  As our good friend John Glenn, a great Senator, a great astronaut, 
and a great Marine, once declared, ``[I]t 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 alters its protections.''
  We can solve this problem with an amendment that is identical to a 
statute written by the Senator from Kentucky, the Flag Protection Act 
of 1999.
  This amendment would protect the flag of the United States from being 
destroyed or damaged in certain situations. Under this amendment, any 
person who destroys or damages the flag of the United States with the 
primary purpose and intent to incite or produce imminent violence or a 
breach of peace will receive a stiff fine, imprisonment, or both.
  This amendment also increases the fine and imprisonment penalties for 
damaging a flag belonging to the United States or damaging a flag on 
Federal land.
  I support this amendment because I believe that our flag is the very 
symbol of our liberty, unity, and equality as a nation--a proud 
reminder of the democracy we hold so dear. But while we should protect 
the American flag, we also must remain vigilant in our protection of 
the Constitution.
  This amendment stands on solid constitutional ground. Although the 
statute criminalizes the destruction or damaging of the American flag 
with the intent to provoke imminent violence or breach of the peace, 
Supreme Court precedent supports this approach. In Chaplinsky v. New 
Hampshire (1942), the Court upheld the constitutionality of laws that 
prohibit expression calculated, and likely to cause, a breach of the 
peace.
  So I support this amendment because it not only protects our American 
flag, but it also preserves the rights and freedoms established in the 
United States Constitution.
  Today, we have an opportunity to protect our flag. But just as 
important, we can preserve the constitutional ideals symbolized by the 
flag.
  Mr. KYL. Mr. President, I rise in support of S.J. Res. 14, the flag 
protection constitutional amendment, and to explain, quite briefly, my 
opposition to Senator McConnell's statutory substitute.
  The McConnell amendment (No. 2889) would amend the U.S. Code to 
establish jail terms and fines for (1) damaging a flag ``with the 
primary purpose and intent to incite or produce imminent violence or a 
breach of the peace,'' (2) damaging a flag that belongs to the United 
States, or (3) damaging a flag that belongs to a third party if the 
damage occurs within the ``exclusive or concurrent jurisdiction of the 
United States.'' See Section 3, proposed 18 U.S.C. 700.
  I oppose the McConnell amendment for three reasons. First, the narrow 
strictures of the amendment would provide little protection for the 
flag. For example, the McConnell amendment would not apply to the very 
case (Texas v. Johnson, 491 U.S. 397 (1989)) in which the Supreme Court 
struck down flag protection statutes. In that case, Gregory Johnson 
burned a flag that had been stolen from a bank. He did not burn the 
flag on Federal property; be burned it in front of city hall as a 
political protest. Thus, the second and third restrictions of the 
McConnell amendment (a ban on destroying flags stolen from the United 
States, and a ban on destroying stolen flags on Federal property) would 
not have applied. As for the first restriction (a ban on burning a flag 
when such action could cause imminent violence or a breach of the 
peace), it is important to note that the Court in Texas v. Johnson 
found that unless there was evidence that a riot ensued or threatened 
to ensue one could not protect the flag under the breach of the peace 
doctrine.
  Second, it seems unlikely that the amendment would survive scrutiny 
by the U.S. Supreme Court. In response to Texas v. Johnson, Congress 
quickly enacted a facially content-neutral, flag-protection statute 
that it hoped would pass constitutional muster. See Public Law 101-131. 
On June 11, 1990, in United States v. Eichman (496 U.S. 310 (1990)), 
the Supreme Court struck down that law. The Court found the following: 
``Although the Flag Protection Act contains no explicit content-based 
limitation on the scope of prohibited conduct, it is nevertheless clear 
that the government's asserted interest is `related to the suppression 
of free expression,' and concerned with the content of such expression. 
The Government's interest in protecting the `physical integrity' of a 
privately owned flag rests upon a perceived need to preserve the flag's 
status as a symbol of our Nation and certain national ideas.'' Id. at 
315-16. If precedent is an accurate guide, it is likely that the Court 
would reach a similar conclusion if it considered the McConnell 
amendment.
  Finally, as one of the 58 Senate sponsors of S.J. Res. 14, I want to 
see that resolution receive an up-or-down vote. The sponsors of the 
amendment and the numerous veterans, patriotic, civic, and religious 
groups have worked hard to bring the constitutional amendment to a 
vote.
  In closing, I would like to reaffirm my support for S.J. Res. 14. I 
cannot believe that our Founding Fathers intended ``freedom of 
expression'' to encompass the willful destruction of our national 
symbol--the symbol of America that so many of our sons and daughters 
have given their lives to defend.
  Mr. HATCH. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 2889.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 36, nays 64, as follows:

                      [Rollcall Vote No. 45 Leg.]

                                YEAS--36

     Akaka
     Bennett
     Biden
     Bingaman
     Boxer
     Bryan
     Byrd
     Chafee, L.
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Edwards
     Gorton
     Graham
     Harkin
     Inouye
     Jeffords
     Johnson
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     McConnell
     Mikulski
     Moynihan
     Murray
     Nickles
     Sarbanes
     Schumer
     Smith (OR)
     Torricelli
     Wyden

                                NAYS--64

     Abraham
     Allard
     Ashcroft
     Baucus
     Bayh
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cleland
     Cochran
     Collins
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Kennedy
     Kerrey
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     Mack
     McCain
     Murkowski
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner
     Wellstone
  The amendment (No. 2889) was rejected.


                           Amendment No. 2890

  The PRESIDING OFFICER. The Senate will now consider amendment No. 
2890 to S.J. Res. 14 offered by Senator Hollings. There are 4 minutes 
equally divided.
  Mr. HOLLINGS. Mr. President, my colleagues all acknowledge the need 
for more and more money each time we come up for election or get into 
political campaigns.
  There has been very little discussion of the actual chase for that 
money which has corrupted the institution. I hate to say that. When I 
got here 33 years ago, we would come to work, and Senator Mansfield, 
the majority leader, would have a vote at 9 o'clock on Monday morning. 
Senator Byrd did the

[[Page S1795]]

same thing as majority leader. We would work throughout the week up 
until 5 o'clock on Friday. Now Mondays and Fridays are gone. We start 
on the half day on Tuesdays, and then Wednesdays and Thursdays we all 
want a window.
  There is no window in the Chamber, but there are plenty of windows. 
You to have get with the dialog, as they call it up here, and that is 
for the money chase. We used to have the extended Easter break and the 
Fourth of July, but now we have not only January gone, there are 10 
days in February, March, April, 10 days in May, June, the July break, 
August, the month off, and we are supposed to go home and get money.
  If you go to the leader and ask, please call up a bill, it may take 3 
or 4 days, he looks at you as if you are loony. Talk about debating, 
deliberating--this deliberative body has been so corrupted, it can't 
deliberate. Don't give me this so-called eviscerate the first 
amendment. Buckley v. Valeo did that. The intent there was that every 
mother's son, anybody of ordinary means, could offer for the 
Presidency. What has really happened is that we have taken away the 
speech of those who are without money. And for those who are 
millionaires, they can buy the office. In fact, it has stood the intent 
on its head whereby, instead of forbidding the purchase of the office, 
we have to buy it. You have to get more money.
  I hope we will vote for this constitutional amendment which is 
neutral. It is not pro or con McCain-Feingold or public financing or 
whatever it is. It gives the people a chance to vote. All you have to 
do is look to the primaries we have just gotten through. The people are 
ready, willing, and able to vote and stop this corruption.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Utah has 2 minutes.
  The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, we had this constitutional amendment 
before us in 1997. It only got 38 votes, and it takes 67 votes to 
change the constitution. Frankly, I am surprised it even got 38 votes. 
This amendment would essentially repeal a major part of the First 
Amendment. The Bill of Rights has protected our free speech for over 
200 years. We do not need to begin eviscerating it now.
  The Washington Post opposes this amendment. Common Cause opposes this 
amendment. The distinguished Senator from Wisconsin, Mr. Feingold, and 
others oppose this amendment. This amendment is simply a very bad idea.
  I yield the remainder of my time to the Senator from Utah, Mr. 
Bennett.
  Mr. BENNETT. Mr. President, I congratulate the Senator from South 
Carolina on his honesty in that he recognizes the proposals with 
respect to campaign finance reform that have been on this floor are, in 
fact, unconstitutional. But he seeks to solve the problem with a 
constitutional amendment, which I think is best summarized in the 
comment by the Senator from Washington, Mr. Gorton, who said this does 
not amend the first amendment with respect to political speech, it 
repeals it.
  I don't want to vote in favor of something that could be considered 
by as careful a scholar as the Senator from Washington as repealing 
free speech for politicians. We have the same rights, I think, that 
everyone else should have. For that reason, I ask my colleagues to vote 
against this amendment.
  Mr. HATCH. Mr. President, I move to table and ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  Mr. LIEBERMAN. Mr. President, I rise today to explain my vote on 
Senator Hollings' proposal to amend the Constitution to allow Congress 
and the States to impose reasonable limits on contributions and 
expenditures made to support or oppose candidates for elected office. 
In this case, I believe that the high threshold I have established for 
supporting a constitutional amendment--that it address a significant 
threat to the Republic or some egregious wrong--has been met.
  This amendment addresses an unfortunate fact whose truth has become 
more and more apparent in the past several years: money and the never 
ending chase for it are threatening the integrity of our political 
system and jeopardizing the essence of our democracy. Although money 
has always played a role in American politics, its impact became 
overwhelming during the last few election cycles. Political fundraising 
and spending during the 1996 campaign was 73 percent greater than 
during the 1992 campaign, and there is no reason to believe we won't 
break that record in 2000. We are all intimately familiar with the time 
and resources we need to spend to raise that money, and with the 
numerous questionable events and actions that were spurred by the money 
chase during the last Presidential election. Most of those events and 
actions, I have sadly concluded, were legal under our current campaign 
finance laws. But that does not mean they were not wrong. I think they 
were. By ensuring that we will be able to put a limit on the amount of 
money spent in political campaigns, this constitutional amendment would 
help restore a sense of integrity--and of sanity--to our campaign 
finance system and to our democracy.
  Much of the debate over this proposed amendment centers on what some 
call its threat to the principle of free speech. That, of course, is a 
principle we all hold dear. But I say, Mr. President, that free speech 
is not what is at issue here. Free speech is about the inalienable 
right all of us have to express our views without government 
interference. It is about the vision the Framers of our Constitution 
enshrined in that most important of documents--a vision that ensures 
that we in Congress will never compromise our American birthright to 
say things and offer opinions even when those opinions are unpopular or 
discomforting. But that simply is not at issue here, Mr. President--
absolutely nothing in this amendment will do anything to diminish or 
threaten any American's right to express his or her views about 
candidates running for office or about any problem or issue in American 
life.
  What would be threatened by this proposed Constitutional amendment, 
Mr. President, is something entirely different: the ever increasing and 
disproportionate power those with money have over our political system. 
As everyone in this chamber knows, the spiraling costs of running for 
office require all of us to spend more and more time raising money and 
more and more time with those who give it. We are all far too familiar 
with events or meetings with elected officials attended only by those 
who could afford to give $5,000 or $10,000 or even $100,000--sums of 
money that are beyond the capacity of the overwhelming majority of 
Americans to give. That, Mr. President, is threatening a principle all 
of us hold just as dearly as the principle of free speech: the 
principle of democracy. That sacred principle guides our Republic--it 
promises that each person has one vote, and that each and every one of 
us--rich or poor--has an equal right and an equal ability to influence 
the workings of our government. As it stands now, Mr. President, it is 
that sacred principle that is under attack and that sacred principle 
that promises to remain under attack unless we do something to save it. 
And that something, I submit, is campaign finance reform.

  I, for one, believe that most of the campaign finance reform we need 
can and must be done even without this Constitutional amendment. The 
Supreme Court, after all, has made quite clear in its decisions that 
even under its view of money as being equivalent to speech, the 
Constitution still allows Congress to impose restrictions on the amount 
that can be contributed to campaigns and parties. This, in my view, 
means that we have no excuse not to act right now to stop the massive 
soft money contributions that pose the biggest threat to our system. It 
is important that we not use the First Amendment as a shield against 
change because it is clearly constitutional to limit and regulate 
contributions to political campaigns--including soft money.
  What it appears we cannot do under the Supreme Court's rulings is 
limit the amount of money we and others spend in the course of 
campaigns unless we adopt convoluted legislation geared toward 
complying with the Supreme Court's view that money is

[[Page S1796]]

speech. I think that the need for reform is so great that it is worth 
accepting convoluted legislation, but I also think that we should act 
now to vote for this amendment and so ensure that in the future we will 
be able to properly regulate campaign spending, thereby controlling the 
amount of money spent in American political campaigns.
  Mr. President, nothing less than the future of our democracy is at 
stake here. Unless we act to reform our campaign finance system, people 
with money will continue to have disproportionate influence in our 
system, people who are not even citizens of the United States will try 
to use money to influence our government's decisions, the American 
people will continue to lose faith in our government's institutions, 
and the genius of our Republic--that it is our citizenship, not our 
pocketbook, that gives each of us equal power to play a role in our 
country's governance--that genius will be lost.
  Mr. President, it is for that reason that I have concluded that this 
is one of those rare constitutional amendments that is worth 
supporting. Our current campaign finance system poses an egregious 
threat to our Democracy. Big money donations, endless spending and the 
proliferation of anonymously-funded and often inaccurate attack ads all 
have had an extraordinarily corrosive and distorting affect on our 
political system and on the citizenry's view of its role in our 
Democracy's decisions. I frankly can think of few threats to the 
Republic greater than one that throws into doubt the integrity and 
well-functioning of our democratic decision-making process.
  Mr. WELLSTONE. Mr. President, I rise today to explain my vote against 
the Hollings amendment to S.J.Res. 14 which would have amended the 
Constitution to authorize regulation of contributions to, and spending 
by, Federal and State candidates.
  I am a strong proponent of campaign finance reform. I would even go 
so far as to say that I view the fight to bar private, interested money 
from dominating our elections as the core battle that needs to be won 
if Congress is going to turn its attention to enacting an agenda that 
put working families before wealthy, entrenched special interests. The 
campaign finance reform debate may be to the nineties what civil rights 
was to the fifties and sixties. In fact, let me go a step further and 
say the campaign finance reform may be the new civil rights watershed.
  I do not believe that money equals speech, as some of my colleagues 
have argued during the debate on the Hollings amendment and in previous 
debates. The vote is undermined by the dollar. The vote may be equally 
distributed, but dollars are not. As long as elections are privately 
financed, those who can afford to give more will always have a leg up--
in supporting candidates, in running for office themselves, and in 
gaining access and influence with those who get elected. We all know 
this is the way it works. And the American people know it, too.
  I laud my colleague's intentions in offering this amendment. No one 
has pushed harder on campaign finance reform than the junior Senator 
from South Carolina. But while I have supported the Hollings amendment 
in the past, I voted against it today. There is now significant 
momentum at both the federal and state levels to enact campaign finance 
reform--including public financing of elections, which I believe is 
critical--in a manner that will pass constitutional muster. These 
efforts, with hard work and determination, have the best chance of 
resulting in meaningful, lasting improvements in our election system, 
and therefore in our democracy.
  Amending the Constitution is a long and arduous process. It is rarely 
successful. I simply do not believe that it is now the best mechanism 
for achieving reform.
  The PRESIDING OFFICER. The question is on the motion to table 
amendment No. 2890. The yeas and nays have been ordered. The clerk will 
call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 67, nays 33, as follows:

                      [Rollcall Vote No. 46 Leg.]

                                YEAS--67

     Abraham
     Akaka
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee, L.
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     Crapo
     DeWine
     Domenici
     Dorgan
     Edwards
     Enzi
     Feingold
     Fitzgerald
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kennedy
     Kerrey
     Kohl
     Kyl
     Lautenberg
     Leahy
     Lott
     Lugar
     Mack
     McConnell
     Moynihan
     Murkowski
     Murray
     Nickles
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Voinovich
     Warner
     Wellstone

                                NAYS--33

     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Bryan
     Byrd
     Cleland
     Daschle
     Dodd
     Durbin
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kerry
     Landrieu
     Levin
     Lieberman
     Lincoln
     McCain
     Mikulski
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Specter
     Wyden
  The motion was agreed to.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I want to take a moment to thank 
members of my staff for their hard work on the last two amendments: Tam 
Somerville, staff director of the Rules Committee; Hunter Bates, 
general counsel, who works with him; Andrew Siff, Denise Grant, and 
Nathan Oman who have been deeply involved in the last two amendments. I 
appreciate the great assistance from Senator Bennett of Utah.
  This is a red letter day for the first amendment. The Hollings 
amendment had only 33 votes in favor of the amendment. As we all know, 
it takes 67 votes to approve an amendment to the Constitution. There 
were 67 votes against this amendment to the Constitution. It is clear 
that the first amendment is secure for another day, and I thank my 
colleagues who made that possible.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SHELBY. Mr. President, I ask unanimous consent that I may proceed 
in morning business for 10 minutes.
  Mr. LEAHY. Reserving the right to object, Mr. President.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. And I shall not. What is the parliamentary situation right 
now?
  The PRESIDING OFFICER. The Senate is currently considering S.J. Res. 
14.
  Mr. SHELBY. I ask it be set aside and that I may proceed in morning 
business for 10 minutes.
  Mr. LEAHY. Again reserving the right to object, and I will not 
object, will there be any objection then to, at the conclusion of the 
Senator's morning business speech, we go to the distinguished Senator 
from Wisconsin who has been waiting to speak on the amendment which is 
the pending business?
  Mr. SHELBY. Absolutely.
  Mr. WELLSTONE. Mr. President, I ask my colleague from Vermont, I am 
waiting to go to another committee, may I follow the Senator from 
Wisconsin?
  Mr. HATCH. Reserving the right to object, is the Senator from 
Wisconsin just going to speak or is he intending to offer an amendment?
  Mr. FEINGOLD. My intent is simply to speak.
  Mr. HATCH. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered. The order 
will be the Senator from Alabama for 10 minutes, the Senator from 
Wisconsin, followed by the Senator from Minnesota.
  Mr. SHELBY. Mr. President, I thank the Senator from Vermont for his 
understanding in helping us work this out, and also the Senator from 
Utah, Mr. Hatch, for his indulgence.
  (The remarks of Mr. Shelby pertaining to the introduction of S. 2304 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, we in the Senate speak today to honor 
the American flag, the symbol of our Nation. Both those who favor and 
those who oppose the amendment to the Constitution now pending do so. 
We all, of course, seek to honor the flag.

[[Page S1797]]

  I dare say that there is not a Senator among us who does not feel 
goose bumps when first looking up at the dome of the Capitol and seeing 
our flag. I would wager that no U.S. Senator fails to get a lump in the 
throat when standing to the strains of the national anthem. And I am 
confident that there is none among us whose eyes do not sometimes mist 
over when watching those seven bars of red and six of white ripple in 
the breeze and tug at the heart.
  But, my colleagues, honoring the flag demands that we here fully and 
fairly debate this amendment. Amending the Constitution is an 
undertaking of the greatest import. For the Congress to propose an 
amendment to the Constitution of the United States on the basis of 
anything less than a full--even an exhaustive--debate would show less 
than the full respect due to the flag and the Constitution that it 
represents.
  Honor demands that we view any effort to amend the Constitution with 
trepidation. Since the adoption of the Bill of Rights in 1791, America 
has amended its Constitution on only 17 occasions. Our Constitution has 
served this Nation well and withstood the test of time, in large part 
because Congress has resisted the urge to respond to every adversity, 
real or imagined, with a constitutional amendment. We should exercise 
restraint in amending this great charter.
  We honor the American flag because we love ``the Republic for which 
it stands.'' We honor the banner because we cherish ``one Nation . . . 
with liberty and justice for all.'' We honor the flag because it 
represents a Constitution, that solemn commitment; and a Bill of 
Rights, that charter of liberty; unrivaled in the history of humankind.
  Honor demands that we seek to protect not just the flag, but the 
principles in that Constitution and that Bill of Rights--principles of 
freedom, opportunity, and liberty. I believe these principles, as much 
as our Nation's cherished symbols, frame our history and define our 
Nation. As dearly as we hold the flag, we must hold these principles at 
least as dearly.
  Yes, there have been some handfuls of sociopaths who burn our flag to 
thrust a firebrand in our eye. The question before us today is: Will 
the misguided actions of these few misfits cause us to curtail our 
fundamental principles of freedom?
  We would only grant them victory if we allow their despicable acts to 
goad us into desecrating the greatest protection of individual rights 
in human history--our Bill of Rights. As Senator Bob Kerrey has said:

       Patriotism calls upon us to be brave enough to endure and 
     withstand such an act--to tolerate the intolerable.

  Let us show our strength, by not rising to the bait. Let us show our 
bravery, by not giving the flag burners what they want. Let us show our 
faith in the strength of this country and its institutions, by not 
lashing out in anger at those who would defile our flag.
  The costs of this amendment would exact a far too great a price to 
pay. This amendment, if adopted, would criminalize the very acts that 
the Supreme Court has held to be protected by the first amendment. This 
amendment would clearly and intentionally erode the Bill of Rights.
  This amendment would have an unprecedented, direct, and adverse 
effect on the freedoms embodies in the Bill of Rights. For the first 
time in our history, this amendment would employ the Constitution and 
the Bill of Rights--both premised on the idea of limiting the 
Government--to limit individual rights, and, in particular, the freedom 
of speech.
  Our former colleague, Senator John Glenn, said it very well last 
year. He said:

       Our revered symbol stands for freedom, but is not freedom 
     itself. We must not let those who revile our way of life 
     trick us into diminishing our great gift or even take a 
     chance of diminishing our freedoms.

  I am very proud to attempt to carry on John Glenn's fight against 
this ill-advised amendment. The Bill of Rights is too fundamental to 
our history, too important to our people, and too necessary to our 
future, for us to do anything else.
  Honoring the flag demands that we also question the vagueness of the 
language of the amendment. Our Constitution Subcommittee heard 
testimony that the term ``flag of the United States,'' as used in this 
amendment, is ``problematic'' and so ``riddled with ambiguity'' as to 
``war with the due process norm that the law should warn before it 
strikes.'' Even supporters of the amendment, including former Attorney 
General William Barr, have acknowledged that the term ``flag'' could 
mean any of a number of different things. No one can assure us as to 
what the term ``flag'' will mean other than to suggest it will be up to 
the governments of particular jurisdictions.
  How would the amendment affect flags on T-shirts? How would the 
amendment affect flags on scarfs? In the memorable example given by the 
late and revered Senator John Chafee last year, How would the amendment 
affect a handmade flag rug?
  Now the amendment, of course, does not make anything illegal by 
itself. It simply gives the Congress the power to prohibit the physical 
desecration of the flag. But the question is still a powerful one. We 
must still ask: What kind of statute would this amendment insulate from 
constitutional attack?
  Would this amendment permit Congress to enact a statute that would 
criminalize wearing a T-shirt with a flag on it? Or could Congress 
criminalize tearing such a T-shirt?
  Would the amendment permit Congress to criminalize wearing a scarf 
with a flag on it? Or could Congress criminalize spitting on such a 
scarf?
  Would this amendment permit Congress to criminalize making a rug with 
a flag on it? Or could Congress criminalize stepping on such a rug?
  More generally, would the amendment allow Congress to enact statutes 
that permit the prosecution of people based on the views they express 
when they defile the flag? Consider two cases: In case one, a person 
smears blood on a flag while screaming protest of U.S. involvement in a 
foreign war. In case two, another person drips blood on a flag after 
suffering an injury at a summertime football game. After adoption of 
this amendment, would it be constitutional to prosecute the one who 
spoke and not prosecute the other, who did the same thing without 
speaking?
  Here's another example. My colleagues may remember the very exciting 
victory of the U.S. Women's Soccer team in the Women's World Cup last 
year. A thrilling moment for sure, and tens of thousands of very 
patriotic Americans cheered the heroic deeds of the women who 
represented our country.
  That evening, another soccer game was played here in Washington, DC, 
involving this city's major league soccer team, D.C. United. Many of 
the same fans who cheered the U.S. women that afternoon turned out to 
watch the D.C. United soccer team. Some of those fans, seeking to play 
for the TV cameras and their fellow fans brought a prop, which they 
unfurled during the game. Here is a picture of it. As you can see, it 
is an actual flag. It is not a representation or a picture. It is an 
actual flag of the United States with the words ``Thanks Girls!'' 
written on it with some type of chalk or marker.
  Obviously the people who defaced this flag intended no disrespect to 
the United States or the flag. They were excited soccer fans, and 
probably very patriotic Americans. I wonder if the sponsors of this 
amendment can be sure of the answer to this question: Would the statute 
that Congress passes to prohibit flag desecration after this 
constitutional amendment is ratified allow for these people to be 
prosecuted? I think it is a fair question.
  I think most of us would hope not. But how would the police or the 
prosecutors make that decision? If they look at the message and the 
beliefs of the people who have written on the flag, isn't that exactly 
the kind of content discrimination that the first amendment is designed 
to prohibit? Do we really want the government examining the motives of 
those who deface the flag to see if they are patriotic or well meaning 
enough to avoid discrimination?
  I don't think so. I think that is what the first amendment is all 
about: to protect against Government inquiry into a citizen's political 
beliefs. On the other hand, if we have a completely content-neutral 
statute and enforcement that does not look at the motives of those who 
deface the flag, we might

[[Page S1798]]

end up prosecuting the excited and patriotic soccer fans shown in this 
poster. Obviously, I don't think we want that either.
  So this example really shows the difficulties with outlawing 
desecration of the flag. People in this country use the flag to express 
joy and patriotism as well as opposition to the Government. And the 
traditions of our country, our respect for free political expression, 
demands that we not criminalize conduct that we would otherwise accept 
if it were motivated by patriotism instead of political dissent.
  Some people call these kinds of examples ``wacky hypotheticals.'' But 
we do not have reliable answers to these questions. And when you are 
talking about amending the Constitution, you have a duty to consider 
and address hypotheticals. After all, it is not easy to correct a 
mistaken Constitution. We cannot just, by unanimous consent, pass a 
technical corrections bill to fix an unintended consequence of a 
constitutional amendment.
  Let me share another case that I witnessed not far from this Senate 
Chamber. I was eating dinner at the restaurant called ``America'' over 
in Union Station. We noticed that the menu is colored like a giant 
American flag. We talked about having to be careful not to spill 
anything on it and how damaging our menu might be a crime under this 
amendment. Then we forgot about it and returned to our meal. But just a 
half hour later, there was a big commotion in the corner of the 
restaurant, and we turned to see a woman frantically trying to put out 
a fire that had started when her oversized American flag menu had 
gotten too close to the small candles on the table.
  Now I hope that that woman was not engaged in an angry argument over 
the Government. But I suppose that is something that the police might 
have to investigate if this amendment and a statute that it authorized 
became law. Don't the police have more important things to investigate 
than whether the burning of a menu might violate the Constitution?
  Some have been misled into believing that one can pull a flag off a 
building, burn it, and be protected by the Constitution. That is simply 
not true. There are many laws in effect today that prohibit theft, the 
destruction of federal property, or disturbing the peace. These can and 
should be used to address the majority of flag burning incidents.
  Honoring the flag demands that we listen, as many on both sides of 
this debate have, to the true American war heroes who have testified to 
us on this issue. It was particularly inspiring to welcome John Glenn 
back to the Senate last year. The perspectives of the witnesses before 
the Judiciary Committee last year were of particular interest to me 
because they represented the diversity of views on this amendment by 
the American people, by veterans, and by war heroes. Those who fought 
and sacrificed for our country and its flag deserve our utmost respect 
when it comes to this flag amendment. They know well the costs of 
freedom and democracy, as well as the joys. Some would portray the 
views of veterans as monolithic, but, as our hearings showed quite 
plainly: They are not.
  Those many veterans who oppose this amendment do so with conviction 
and power and strength. They know that no one can question their 
patriotism or love of country. Listen to the words of Professor Gary 
May of the University of Southern Indiana, who lost both his legs in 
the Vietnam war, and who testified before the Judiciary Committee last 
year. Professor May said:

       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.

  The late Senator John Chafee, who as all will recall also served 
bravely at Guadalcanal and in the Korean war, last year said simply: 
``[W]e cannot mandate respect and pride in the flag. In fact, . . . 
taking steps to require citizens to respect the flag, sullies its 
significance and symbolism.'' Senator Chafee's words still bring a 
brisk, cool wind of caution. What kind of symbol of freedom and liberty 
will our flag be if it has to be protected from protesters by a 
constitutional amendment?
  My friend and constituent Keith Kruel, a World War II veteran and 
past National Commander of the American Legion, addressed this point 
quite well in testimony he submitted for the Judiciary Committee last 
year. He said:

       Freely displayed, our flag can be protected only by us, the 
     people. Each citizen can gaze upon it, and it can mean what 
     our heartfelt patriotic beliefs tell us individually. 
     Government ``protection'' of a Nation's banner only invites 
     scorn upon it. A patriot cannot be created by legislation. 
     Patriotism must be nurtured in the family and educational 
     process. It must come from the heartfelt emotion of true 
     beliefs, credos and tenets.

  Senator Bob Kerrey, who is in the Chamber at this time, the only 
Congressional Medal of Honor winner to serve in the Senate in this 
century, spoke directly to the point when he said: ``Real patriotism 
cannot be coerced. It must be a voluntary, unselfish, brave act to 
sacrifice for others.'' I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I thank Senator Feingold for his 
statement. I will be relatively brief.
  I ask unanimous consent that if other Senators aren't here, Senator 
Kennedy be allowed to speak after myself.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. Mr. President, I come to the floor not the first time 
to announce my opposition to this proposed constitutional amendment, 
giving power to the Congress and the States to prohibit physical 
desecration of the flag of the United States.
  I wish to speak about this a little bit more personally because I 
think all of us come to our point based upon real-life experience. My 
father was a Jewish immigrant born in the Ukraine and who fled 
persecution from Russia. My mother's family came from the Ukraine as 
well. As a first generation American on my father's side, I revere the 
flag and I am fiercely patriotic. I love to see the flag flying over 
the Capitol. I love to recite the Pledge of Allegiance to the flag. I 
think it is a beautiful, powerful symbol of American democracy.
  What I learned from my parents more than anything else, and from my 
own family experience as the son of a Jewish immigrant who fled czarist 
Russia, is that my father came to the United States because of the 
freedom--the freedom we have as American citizens to express our views 
openly, without fear of punishment.
  I am deeply impressed with the sincerity of those who, including 
Senator Hatch, favor this constitutional amendment. I am impressed with 
the sacrifice and patriotism of those veterans who support this 
constitutional amendment. I think in the veterans community there 
certainly are differences of opinion. I do not question their sincerity 
or commitment at all.
  It is with a great deal of respect for those with whom I disagree, 
including some members of the American Legion, that I oppose this 
amendment. I oppose it because, to me, it is ultimately the freedom 
that matters the most. To me, the soul of the flag, as opposed to the 
physical part of the flag, is the freedom that it stands for, the 
freedom that my parents talked about with me, the freedom that all of 
us have to speak up. I do not want to amend the Bill of Rights for the 
first time in its 209 years of existence. I don't want to amend the 
first amendment, the founding principle of freedom of speech from which 
all other freedoms follow.
  I want to very briefly read from some of what our Justices have had 
to say because I think they say it with more eloquence than I could. In 
Texas v. Johnson, an opinion written by Justice Brennan, joined by 
Justices Marshall, Blackmun, Scalia, and Kennedy--and I note this is a 
diverse group of judges we are talking about--they said:


[[Page S1799]]


     If there is a bedrock principle underlying the First 
     Amendment, it is that the government may not prohibit the 
     expression of an idea simply because society finds the idea 
     itself offensive or disagreeable. . . . The way to preserve 
     the flag's special role is not to punish those who feel 
     differently about these matters. It is to persuade them that 
     they are wrong. . . . We do not consecrate the flag by 
     punishing its desecration, for in doing so we dilute the 
     freedom that this cherished emblem represents.

  If freedom of speech means anything, I think it means protecting all 
speech, even that speech which outrages us. I have no use for those who 
desecrate the flag. Speech that enjoys widespread support doesn't need 
any protection. As the great Justice Oliver Wendell Holmes pointed out, 
freedom of speech is not needed for popular speech, but instead it is 
for the thought that we hate, the expression threatened with censorship 
or punishment.

  I quote from General Powell's letter. He has been quoted several 
times, but it is too eloquent to pass up:

       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. . . . 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.

  Our late and dear friend and colleague, Senator Chafee, who was a 
highly decorated soldier in two wars wrote:

       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 its symbolism.

  Finally, my colleague from Wisconsin mentioned Senator Glenn, another 
real American hero. Senator Glenn said:

       Without a doubt, the most important of those values, rights 
     and principles is individual liberty: the liberty to worship, 
     to think, to express ourselves freely, openly and completely, 
     no matter how out of step these views may be with the 
     opinions of the majority.

  That is the first part of my presentation--just to say that I love 
this flag. I think when you have the family background I have, you are 
fiercely patriotic. I love this country. My mother and father are no 
longer alive, but I still think they know I am a Senator. They weren't 
alive when I was elected. It would mean everything in the world to 
them. But, to me, the real soul of the flag, going beyond the physical 
presence of the flag, is the freedom that the flag stands for. I don't 
think we should give up on that freedom. I don't think we should amend 
the first amendment to the Constitution. I think it would be a profound 
mistake. I say that out of respect for those who disagree with me in 
the Senate. I say it out of respect for those in the veterans community 
who disagree with me.
  Mr. KENNEDY. Mr. President, once again we are debating whether to 
amend the Constitution to prohibit flag burning. Flag burning is a vile 
and contemptuous act, but it is also a form of expression protected by 
the first amendment. Surely we are not so insecure in our commitment to 
freedom of speech and the first amendment that we are willing to start 
carving loopholes now in that majestic language.
  I strongly oppose the constitutional amendment we are debating today. 
The first amendment is one of the great pillars of our freedom and 
democracy. It has never been amended in over 200 years of our history, 
and now is no time to start. There is not even a plausible factual 
basis for carving a hole in the heart of the first amendment. There is 
no significant problem.
  Flag burning is exceedingly rare. Published reports indicate that 
fewer than 10 flag burning incidents have occurred a year since the 
Supreme Court's decision in Texas v. Johnson in 1989 on the first 
amendment. Over the last 5 years, there was only one such incident in 
Massachusetts. This is hardly the kind of serious and widespread 
problem in American life that warrants an assault on the first 
amendment. Surely there is no clear and present danger that warrants 
such a change. This proposal fails the reality test.

  The Constitution is not a billboard on which to plaster amendments as 
if they were bumper sticker slogans. In this Congress alone, over a 
dozen constitutional amendments have been introduced. With every new 
proposed amendment, we undermine and trivialize the Constitution and 
threaten to weaken its enduring strength.
  I remember listening to a speech given by Justice Douglas, one of the 
great Supreme Court Justices of this century. Students asked him: What 
was the most important export of the United States? He said, without 
hesitation: The first amendment because it is the defining amendment 
for the preservation of free speech as the basic and fundamental right 
in shaping our Nation.
  Clearly, it would be a mistake of historic proportions for this 
Congress to make the first alteration to the first amendment in more 
than two centuries. The first amendment breathes light into the very 
concept of our democracy. It protects the freedoms of all Americans, 
including the fundamental freedom of citizens to criticize their 
government and the country itself, including the flag.
  As the Supreme Court explained in Texas v. Johnson, it is a bedrock 
principle underlying the first amendment that the Government may not 
prohibit the expression of an idea simply because the society finds the 
idea itself offensive and disagreeable.
  No one in the Senate condones the act of flag burning. We all condemn 
it. The flag is a symbol that embodies all that is great and good about 
America. It symbolizes our patriotism, our achievements, and, above 
all, our respect for our freedoms and our democracy. We do not honor 
the flag by dishonoring the first amendment.
  Gen. Colin Powell agrees with our opposition to this proposed 
amendment. He has told us in reaching this decision he was inspired by 
the words of James Warner, a former marine aviator, who was a prisoner 
in North Vietnam between 1967 and 1973. As James Warner wrote in 1989: 
It hurts to see the flag being burned, but I part company with those 
who want to punish the flag burners. In one interrogation, I was shown 
a photograph of American protesters burning a flag. There, the officer 
said: People in your country protest against your cause. That proves 
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 in using his tool, the picture of the burning flag, 
against him.
  That says it all. We respect the flag the most, we protect it the 
best, and the flag itself flies the highest when we honor the freedom 
for which it stands.
  I urge my colleagues to vote against this misguided constitutional 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, at least the Senator is consistent because 
he opposes both the McConnell amendment and the flag amendment.
  Having made that point, of the 36 Senators who voted for the 
McConnell ``statutory fix,'' shall we call the proposal, 30 are 
opponents of the flag-protection amendment. These 30 Senators 
apparently believe that some flag desecration should be prohibited. 
Voting for McConnell makes their first amendment arguments a mockery.
  At least the distinguished Senator from Massachusetts is consistent, 
because the McConnell amendment says, one, that flag desecration on 
Federal land with a stolen flag should be prohibited; two, damaging a 
flag belonging to the United States will be prohibited; or three, 
desecrating a flag intending to promote violence should be prohibited.
  It reminds me of 1989 when a high percentage of Senators in this 
body, who claim to be against the constitutional amendment to prohibit 
desecration of our beloved flag, voted for the statutory anti-flag-
desecration amendment.
  If first amendment rights hold with regard to this constitutional 
amendment, that it would violate first amendment rights, then why 
wouldn't it have violated first amendment rights with regard to any 
statute that would prohibit desecration?

[[Page S1800]]

  I think anyone can see the game that is going on; that is, that some 
of the folks wouldn't vote to protect the flag no matter what happens 
because they know the flag desecration amendment or a statutory 
amendment is not going to protect our flag because it will be stricken 
down as unconstitutional. I predicted it in both cases where the 
Supreme Court has stricken it down.
  If one agrees that flag desecration is wrong, why limit it to these 
circumstances provided in the McConnell amendment? Why should it be 
legal to burn a flag in front of a crowd who loves flag desecration, or 
on television where people are at a safe distance, yet make it illegal 
to burn a flag in front of people who would be upset by that act? Why 
make it illegal to burn a Post Office flag but not a flag belonging to 
a hospital across the street? Why make it illegal for a lone camper to 
burn a flag in a campfire at a Yellowstone park, when it is legal to 
burn a flag before hundreds of children at a public school under 
current law?
  To anyone interested in protecting the flag, these distinctions make 
no sense. That is what is amazing to me. There is such inconsistency. I 
personally believe that it is the elitist position that calls the 80 
percent of Americans who believe we should sustain the dignity of our 
flag, of our national symbol, that we are somehow Neanderthals, the 80 
percent of the people in this country who want to protect our national 
symbol from acts of physical desecration.
  The funny thing about it, this amendment does not even do that. All 
this amendment does is restore the power to the Congress of the United 
States to be able to pass a statute if the Congress so chooses, 
something that we have to do by constitutional amendment if we want to 
be coequal with the judicial branch of Government.
  Opponents of the constitutional amendment argue that this would be an 
unprecedented infringement on the freedom of speech, which does not 
satisfy James Madison's counsel that amendments of the Constitution 
should be limited to ``certain great and extraordinary circumstances.'' 
Setting aside the fact that flag desecration is conduct, not speech, 
and that our freedom of speech is not absolute, these critics never 
fully address the fact that our Founding Fathers, James Madison in 
particular, saw protection of the flag as falling outside the scope of 
the first amendment and was more a matter of protecting national 
sovereignty. The original intent of the Nation's founders indicates the 
importance of protecting the flag as an symbol of American sovereignty. 
Madison and Jefferson consistently emphasized the legal significance of 
infractions on the physical integrity of the flag.

  For example, one of Madison's earliest pronouncements concerned an 
incident in October 1800 when an Algerian ship forced a U.S. man of 
war--the George Washington--to haul down its flag and replace it with 
the flag from Algiers. As Secretary of State under Thomas Jefferson, 
Madison pronounced such a situation as a matter of international law, a 
dire invasion of sovereignty which ``on a fit occasion'' might be 
``revised.''
  Madison continued his defense of the integrity of the flag when he 
pronounced an active flag defacement in the streets of an American city 
to be a violation of law. On June 22, 1807, when a British ship fired 
upon and ordered the lowering of an American frigate's flag, Madison 
told the British Ambassador ``that the attack . . . was a detached, 
flagrant insult to the flag and sovereignty of the United States.'' 
Madison believed that ``the indignity offered to the sovereignty and 
flag of the Nation demands. . .an honorable reparation.'' Madison's 
statements suggests his belief that protecting the physical integrity 
of the flag ensured the protections of the Nation's sovereignty.
  This is the author of the Constitution. We have these people 
inconsistently voting for statutes--twice in the last 11 years--that 
are unconstitutional, that would, I suppose if you take their arguments 
on the floor, denigrate the first amendment to the Constitution. If 
this constitutional amendment is denigrating it, why isn't the statute 
they voted for denigrating it as well?
  Madison did not conclude, as some defenders of the right to deface 
the flag contend, that the first amendment protected the rights of 
Americans to tear down a flag or that defacing the flag was a form of 
expression protected by the first amendment. On the contrary. It would 
appear that Madison had an intimate familiarity with the significance 
of protecting the physical integrity of the flag, especially as such 
protection related to the first amendment, which he helped draft and 
move through the First Congress. He knew there had been no intent to 
withdraw the traditional physical protection from the flag.
  Madison and Jefferson intended for the Government to be able to 
protect the flag consistent with the Bill of Rights. This was based on 
their belief that obtaining sovereign treatment was distinct from an 
interest in protecting against the suppression of expression. Madison 
and Jefferson consistently demonstrated that they sought commerce, 
citizenship, and neutrality rights through the protection of the flag. 
They did not seek to suppress the expression of alternative ``ideas,'' 
``messages,'' ``views,'' or ``meanings.''
  Although it is commonly asserted that Congress has never sent an 
amendment to the States to amend the Bill of Rights, this assertion is 
absolutely false. Even if you assume this amendment would lead to a 
violation of first amendment rights, it is absolutely false to think 
the Congress has never sent an amendment to the States to amend the 
Bill of Rights. Yet the Bill of Rights has been amended in some form on 
several occasions. For example, the 13th amendment amended the 5th 
amendment as interpreted in Dred Scott v. Sanford, to provide that the 
former slaves were not property subject to the due process clause, but 
were free men and women.
  Further, the 14th amendment was interpreted in Bolling versus Sharpe, 
to have effectively amended the due process clause of the 5th amendment 
to apply equal protection principles to the Federal Government.
  Moreover, in Engel versus Vitale, the Supreme Court circumscribed the 
1st amendment rights of American school children by holding that the 
establishment clause precluded prayer in the public schools.
  Each of these constitutional changes substantially modified the 
rights and correlative duties of affected parties from those originally 
envisioned by the Framers of the Bill of Rights. The change effected by 
the Engel versus Vitale decision did not expand rights, but restricted 
them by taking away the right of children to pray at school.
  Further, there have always been numerous limits on free speech. We 
limit libelous and defamatory speech. We limit speech that constitutes 
``fighting words.'' We limit speech that consists of falsely shouting 
``fire'' in a crowded theater. We limit speech that is obscene. We 
limit speech that jeopardizes national security. And each of these 
limits balances an important governmental interest in protecting 
against an individual's right to engage in radical or dangerous speech.
  Thus, the Bill of Rights has been amended numerous times and has 
consistently been interpreted to include limits on speech. The long 
legal tradition of accepting regulation of physically destructive 
conduct toward the flag is consistent with these limits that balance 
society's interest in promoting respect for the nation with an 
individual's interest in sending a particular message by means of 
desecrating our beloved flag. The proposed amendment would effect a 
much smaller change than the other amendments listed and a much 
narrower limit on speech than the other limits mentioned. The amendment 
would simply restore the traditional right of the people to protect the 
physical integrity of their flag, something that existed 200 years 
before the Supreme Court struck it down. Protestors would still be free 
to speak their opinions about the flag at a rally, write their opinions 
about the flag to their newspaper, and vote their opinions at the 
ballot box.
  Most of the American people, men and women, black, brown, and white, 
support the flag protection amendment and 49 State legislatures have 
asked for the flag protection amendment. Accordingly, I believe we 
should send the flag protection amendment to the States for 
ratification.
  The argument that we have never amended the Bill of Rights or limited

[[Page S1801]]

speech is absurd; it is false, and, in any event, the flag protection 
amendment would change only the results of a few recent court decisions 
to restore the true meaning of the Bill of Rights as ratified by our 
forefathers.
  This proposed amendment recognizes and ratifies our Founding Fathers' 
view--and the constitutional law that existed for nearly 200 years--
that the American flag is an important and unique incident or symbol 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, and its physical requirements, related to the 
existence and sovereignty of the United States and that desecration of 
the flag were matters of 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 and national buildings. We 
took the flag to, and planted it for eternity, on the Moon. We carry it 
into battle. We salute it and pledge allegiance to it. Men and women 
have died for it and have been tortured for their fidelity to it.
  Senator McCain, in appearing before our committee, told of one of the 
experiences he had when he was in the Hanoi prison with others of our 
men. He said there was a young man who literally could not afford 
shoes. He had no shoes until he was 13 years of age. He was raised in 
poverty. But when he joined the military, he stood out as a really fine 
human being, and ultimately he went to officer's candidate school.
  Flying over Vietnam, he was shot down. When he arrived in the Hanoi 
prison, if I recall it correctly, he took a bamboo needle and he 
knitted together little bits of cloth to make an American flag, and he 
put it inside his shirt. Every night, he would bring out that flag and 
put it on the wall, and they would all salute and pledge allegiance to 
it. It was one of the things that kept them from going insane.
  One day his captors found him with that flag and took him outside and 
beat him within an inch of his life. Of course, they took his flag from 
him. Then they tossed his broken and bleeding body inside the compound 
which had a concrete slab in the middle. Senator McCain may tell this 
story because he can tell it better than I can having been there. I 
think it is worthwhile to retell it.
  Senator McCain said they picked him up and cleaned him up as best 
they could in those very tragic circumstances. He was all black and 
blue with his eyes shut from having been beaten. They had incandescent 
light bulbs on all day long, every day, and all night long, every 
night. As they all went to sleep, suddenly Senator McCain looked up and 
here was this young military man sitting there with another bamboo 
needle getting little bits of cloth to make another American flag.
  To be honest with you, that flag meant an awful lot to those people 
who were under those very terrible circumstances. It means a lot to me.
  Opponents of this proposed constitutional amendment argue this would 
be an unprecedented infringement on the freedom of speech which does 
not satisfy James Madison's counsel that amendments to the Constitution 
should be limited to ``certain great and extraordinary circumstances.''
  Setting aside the fact that flag desecration is conduct not speech 
and that our freedom of speech is not absolute, what these critics 
never fully address is the fact that our Founding Fathers, James 
Madison in particular, saw protection of the flag as falling outside 
the scope of the first amendment and was more a matter of protecting 
national sovereignty. The original intent of the Nation's founders 
indicates the importance of protecting the flag as an incident of 
American sovereignty. Madison and others did that.
  We took this flag, as I said, and planted it for eternity on the 
Moon. We carry it into battle. We salute it and pledge allegiance to 
it. Men and women have died for it and have been tortured for their 
fidelity to it. As Americans we recognize and believe that the flag is 
our unique symbol of unity and sovereignty. As Madison noted, the flag 
is a unique incident which, when desecrated, ``demands an honorable 
reparation.''

  That was how we viewed it--as a people, as a nation--until 1989 when 
the Court handed down its 5-4 decision in the Johnson case. Are we 
really going to stand here on the floor of the Senate and pretend that 
the law never was as it was? Does anyone here believe that two narrow 
Supreme Court decisions should settle whether we as a nation should and 
can safeguard our symbol of sovereignty?
  There are opponents to S.J. Res. 14 who argue that our flag--this 
incident of sovereignty--is not important enough to amend the 
Constitution; that amending the Constitution requires a ``great and 
extraordinary occasion.'' Tell that to the young man in Vietnam. For 
reasons I have stated, the Supreme Court's decisions in the Johnson and 
Eichman cases--decisions which overturned centuries of law and 
practice--more than meets Senator Leahy's test. Senator Kerrey's test, 
and others. It certainly meets it more than the 27th amendment which 
dealt with pay raises for members of Congress or the 16th amendment 
which gave Congress the power to impose an income tax. I can understand 
why some in Congress would view the 16th amendment as one of Congress' 
finest moments, not that I ever have. In fact, my State of Utah was one 
of only three States to reject the 16th amendment.
  The flag amendment presents this Congress with an opportunity to do 
something great and extraordinary. It is anything but an abdication of 
responsibility. Indeed, one could argue that, failure to vote for this 
amendment is an abdication of our responsibility and that restoring the 
power of Congress the power to prohibit acts of desecration against our 
symbol of national sovereignty would be a great and extraordinary 
occasion.
  Mr. DORGAN. Ten years ago the U.S. Supreme Court in a 5-4 decision 
struck down a Texas flag protection statute on the grounds that burning 
an American flag was ``speech'' and therefore protected under the First 
Amendment of the Constitution. I disagreed with the Court's decision 
then and I still do. I don't believe that the act of desecrating a flag 
is an act of speech. I believe that our flag, as our national symbol, 
can and should be protected by law.
  In the intervening years since the Supreme Court decision I have 
twice supported federal legislation that would make flag desecration 
illegal, and on two occasions I voted against amendments to the 
Constitution to do the same. I voted that way because, while I believe 
that flag desecration is despicable conduct that should be prohibited 
by law, I also believe that amending our Constitution is a step that 
should be taken only rarely and then only as a last resort.
  In the past year I have once again reviewed in detail nearly all of 
the legal opinions and written materials published by Constitutional 
scholars and courts on all sides of this issue. I pledged to the 
supporters of the Constitutional amendment that I would re-evaluate 
whether a Constitutional amendment is necessary to resolve this issue.
  From my review I have concluded that there remains a way to protect 
our flag without having to alter the Constitution of the United States. 
I joined Senators Bennett, McConnell and Conrad today to introduce 
legislation that I believe accomplishes that goal.
  The bill we offered today protects the flag but does so without 
altering the Constitution and a number of respected Constitutional 
scholars tell us they believe this type of statute will be upheld by 
the U.S. Supreme Court. This statute protects the flag by criminalizing 
flag desecration when the purpose is, and the person doing it knows, it 
is likely to lead to violence.
  Supporters of a Constitutional amendment are disappointed I know by 
my decision to support a statutory remedy to protect the flag rather 
than support an amendment to the U.S. Constitution. I know they are 
impatient to correct a decision by the Supreme Court that they and I 
believe was wrong. I have wrestled with this issue for so long and I 
wish I were not, with my decision, disappointing those, including many 
of my friends, who passionately believe that we must amend the 
Constitution to protect the flag.

[[Page S1802]]

  But in the end I know that our country will be better served 
reserving our attempts to alter the Constitution only for those things 
that are ``extraordinary occasions'' as outlined by President James 
Madison, one of the authors of the Constitution, and only in 
circumstances when it is the only remedy for something that must be 
done.
  More than 11,000 Constitutional amendments have been proposed since 
our Constitution was ratified. However, since the ratification of the 
Bill of Rights in 1791 only 17 amendments have been enacted. These 17 
include three reconstruction era amendments that abolished slavery, and 
gave African-Americans the right to vote. The amendments included 
giving women the right to vote, limiting Presidents to two terms, and 
establishing an order of succession in case of a President's death or 
departure from office. The last time Congress considered and passed a 
new Constitutional amendment was when it changed the voting age to 18, 
more than a quarter of a century ago. All of these matters were of such 
scope they required a Constitutional amendment to be accomplished.
  However, protecting the American flag can be accomplished without 
amending the Constitution, and that is a critically important point.
  Constitutional scholars, including those at the Congressional 
Research Service, the research arm of Congress, and Duke University's 
Professor William Alstyne, have concluded that this statute passes 
Constitutional muster, because it recognizes that the same standard 
that already applies to other forms of speech applies to burning the 
flag as well. This is the same standard which makes it illegal to 
falsely cry ``fire'' in a crowded theater. Reckless speech that is 
likely to cause violence is not protected under the ``fighting words'' 
standard, long recognized by the Supreme Court of the United States.
  I believe that future generations--and our founding fathers--would 
agree that it's worth the effort for us to find a way to protect our 
flag without having to wonder about the unintended consequences of 
altering our Constitution.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise in strong support of S.J. Res. 
14, a proposed constitutional amendment to protect our national flag 
from physical desecration.
  S.J. Res. 14 would give Congress, and Congress alone, the authority 
to draft a statute to protect the flag. It would give Congress the 
opportunity to construct, deliberately and carefully, precise statutory 
language that clearly defines the contours of prohibitive conduct.
  At the outset, let me say that amending the Constitution is serious 
business, indeed. I know that, and I know we need to tread carefully. 
The Constitution is, after all, democracy's sacred text. But the 
Constitution is also a living text. As originally conceived, it had no 
Bill of Rights. In all, it has been amended 27 times.
  If the Constitution is democracy's sacred text, then the flag is our 
sacred symbol. In the words of Supreme Court Justice John Paul Stevens, 
it is ``a symbol of our freedom, of equal opportunity, of religious 
tolerance, and of good will for other peoples who share our 
aspirations.'' [dissenting opinion in Texas v. Johnson, 491 U.S. at 437 
(1989)]
  If the flag had no symbolic value, we would not get chills when we 
see it lowered to half-mast or draped on a coffin. We wouldn't feel so 
much pride when we see it flying in front of our homes or at our 
embassies abroad. I wonder, is there any of us who can forget that 
wonderful Joe Rosenthal photograph of the six Marines hoisting that 
flag on the barren crag of Mount Suribachi, after the carnage at Iwo 
Jima, where over 6,800 American soldiers were killed. There have been 
many photographs of soldiers. There has been no photograph I know of 
that so endures in our mind's eye, that has carried so much symbolism, 
as that one. I remember seeing it because the San Francisco Chronicle 
ran it on the front page during World War II. I was just a small child, 
but from that point on, I knew the flag was something special.

  People speak metaphorically about the fabric of our society and how 
it has become frayed. I submit that in a very real sense, our flag is 
the physical fabric of our society, knitting together disparate peoples 
from distant lands, uniting us in a common bond, not just of individual 
liberty but also of responsibility to one another. As such, the flag is 
more precious to us, perhaps, than we may even know.
  The flag flies over government buildings throughout the country. It 
flies over our embassies abroad, a silent but strong reminder that when 
in those buildings, one is on American soil and afforded all the 
protections and liberties enjoyed back home.
  Constitutional scholars as diverse as Chief Justices William 
Rehnquist and Earl Warren and Associate Justices Stevens and Hugo Black 
have vouched for the unique status of the national flag. In 1974, Byron 
White said:

       It is well within the powers of Congress to adopt and 
     prescribe a national flag and to protect the unity of that 
     flag. . . [T]he flag is an important symbol of nationhood and 
     unity, created by the Nation and endowed with certain 
     attributes.'' [Smith v. Goguen, 415 U.S. at 585-87 (1974)]

  Justice White continued, ``[T]here would seem to be little question 
about the power of Congress to forbid the mutilation of the Lincoln 
Memorial or to prevent overlaying it with words or other objects. The 
flag is itself a monument, subject to similar protection.''
  I could not agree more with the opinion of Justice White: ``The flag 
is itself a monument, subject to similar protection.'' Since that time, 
unfortunately, a narrow majority of the Supreme Court has now ruled 
twice that this great symbol of our national unity is not protected 
under the Constitution. So that is why we are here today, to begin the 
process of protecting the flag, which is a symbol of all the 
protections we are afforded as Americans and all the liberties we 
enjoy.
  The flag flying over our Capitol Building today, the flag flying over 
my home in San Francisco, each of these flags, separated by distance 
but not in symbolic value, is its own monument to everything America 
represents. It should be protected as such.
  Our history books are replete with stories of American soldiers who 
were charged with the responsibility of leading their units into battle 
by carrying our Nation's flag. To them, it was more than a task, it was 
an honor worth dying for, and many did. When one soldier would fall, 
another would take his place, raise the flag, and press forward. They 
would not fail. Their mission was too important, the honor too great, 
flag and country too respected to give anything short of the last full 
measure of their devotion, their lives, to succeed.
  The American flag is a revered object as well as a national symbol. 
Indeed, it is our monument in cloth. I believe it should be viewed as 
such, and not simply as something that serves as one of many vehicles 
for free speech.
  Everything about the flag--its tangible form, its very fabric--has 
significance. The shape, the colors, the dimensions, and the 
arrangement of the pattern help make the flag what it is. The colors 
were chosen at the Second Continental Congress in 1777. We all know 
them well: Red for heartiness and courage; white for purity and 
innocence; blue for vigilance, perseverance, and justice.

  Moreover, our flag is recognized as unique not only in the hearts and 
minds of Americans but in our laws and customs as well. No other emblem 
or symbol in our Nation carries with it such a specific code of conduct 
and protocol in its display and handling.
  For example, Federal law specifically prescribes that the flag should 
never be displayed with its union down, except as a signal of dire 
distress or in instances of extreme danger to life or property. When a 
flag is flown upside down, it is in fact a signal of distress.
  The U.S. flag should never touch anything beneath it: neither ground, 
floor, water, or merchandise. The U.S. flag should never be dipped to 
any person or thing. And the flag should never be carried horizontally 
but should always be carried aloft and free.
  Why, then, should it be permissible conduct to burn, to desecrate, to 
destroy this symbol, this emblem, this national monument? That is not 
my definition of free speech.
  For the first two centuries of this Nation's history, that was not 
the Supreme Court's definition of free speech

[[Page S1803]]

either. In fact, until the Court's 1989 decision in Texas v. Johnson, 
48 of the 50 States had laws preventing burning or otherwise defacing 
our flag.
  As I said at the outset, I don't take amending the Constitution 
lightly. But when the Supreme Court issued the Johnson decision and the 
subsequent United States v. Eichman decision [496 U.S. 310 (1990)], 
those of us who want to protect the flag were forced to find an 
alternative path.
  In the Johnson case, the Supreme Court, by a 5-4 vote, struck down a 
State law prohibiting the desecration of American flags in a manner 
that would be offensive to others. The Court held that the prohibition 
amounted to a content-based regulation. By design, at least according 
to the Court, the lawfulness of Johnson's conduct could only be 
determined by the content of his expression. As a result, the Texas 
statute could not survive the strict scrutiny required by legal 
precedent, so the Court struck it down.
  After the Johnson case was decided, Congress passed the Flag 
Protection Act of 1989. That Act prohibited all intentional acts of 
desecrating the American flag and was, therefore, not a content-based 
prohibition on speech or expression. Nevertheless--and this is the 
point why a statute won't do--another narrow majority of the Supreme 
Court acted quickly to strike down the Federal statute as well, ruling 
that it suffered the same flaw as the Texas statute in the Johnson 
decision and was consequently inconsistent with the First Amendment. 
That 5-4 decision makes today's discussion necessary.
  I support S.J. Res. 14 because it offers a way to return the Nation's 
flag to the protected status it deserves. The authority for a nation to 
protect its central symbol of unity was considered constitutional for 
two centuries. It was only a decade ago that a narrow majority of the 
Supreme Court told us otherwise.
  It is important to point out that S.J. Res. 14 is not intended to 
protect ephemeral images or representations of the flag but only the 
physical flag itself. In other words, this amendment is not intended to 
restrict the display of images of the American flag on articles of 
clothing, patches, or similar items. This amendment would only protect 
the flag itself.
  Because we are protecting our national symbol, it makes sense to me 
that Members of Congress, representing the Nation as a whole, should 
craft the statute protecting our flag.
  I also believe the amendment is consistent with free speech. I 
disagree with those who say we are making a choice between trampling on 
the flag and trampling on the first amendment. Protecting the flag, 
circumscribing certain conduct, will not prevent people from expressing 
their ideas through other means in the strongest possible terms.
  I support this amendment because I believe flag burning is content, 
not speech, and can be regulated as such. But to my friends who would 
argue otherwise, I remind them that even the right to free speech is 
not unrestricted. For example, the Government can prohibit speech that 
threatens to cause imminent tangible harm, including face-to-face 
``fighting words'', incitement to violate our laws, or shouting 
``fire'' in a crowded theater. Obscenity and false advertising are not 
protected under the first amendment, and indecency over the broadcast 
media can be limited to certain times of day.
  Even Justice William Brennan's decision in New York Times Co. v. 
Sullivan [376 U.S. 253 (1964)] accepted that some speech (in that case, 
known false statements criticizing official conduct of a public 
official) may be sanctioned.
  There is much that is open to debate about the proper parameters of 
free speech. In the dissent to the 1990 Eichman case, Justice Stevens 
wrote that certain methods of expression may be prohibited if three 
criteria can be met:
  First, the prohibition must be supported by a legitimate societal 
interest unrelated to the ideas the speaker desires to express. I 
believe protecting the flag meets the first test. It does not matter 
why an individual chooses to desecrate a flag--all desecration is 
equally prohibited.
  Second, the speaker must be free to express his or her ideas through 
other means. Again, a law protecting the flag does nothing to keep an 
individual from expressing his or her views through speech or countless 
other activities.
  Third, societal interest must outweigh the ability of an individual 
to choose among every possible form of speech. In this case, I believe 
the significance of the flag--its value as a symbol of freedom and 
democracy throughout the world, its ability to bring us together as a 
nation, and the effect its destruction has on many Americans--clearly 
outweighs the need to protect an individual's ability to express his or 
her views in every conceivable way.
  Is anyone here convinced that desecrating a flag might be the only 
way for someone to express an opinion?
  I recognize that by supporting a constitutional amendment to protect 
the flag, I am choosing a different course from many of my fellow 
Democrats in Congress and, quite frankly, from many of my close friends 
for whom I have the greatest respect. But my support for this amendment 
reflects my broader belief that the time has come for the Nation to 
begin a major debate on its values. We need to ask ourselves what we 
hold dear--is there anything upon which we will not cast our contempt?
  How can we foster respect for tradition as well as ideological 
diversity? How can we foster community as well as individuality? These 
are all important values, and we must learn to reconcile them. We must 
not advance one value at the expense of another.
  The framers of the Constitution recognized two important elements in 
our constitutional tradition--liberty and responsibility. Without 
responsibility, without the rule of law, there could be no protection 
of life, limb, or property--there could be no lasting liberty. I 
believe there is a danger in moving too far in either direction--toward 
too restrictive order, or toward unfettered individual liberty.
  The key is the balance. In this instance, I believe we cannot tilt 
the scales entirely in favor of individual rights when there exists a 
vast community of people in this country who have gone to war for our 
flag.
  There are mothers and fathers, wives, husbands, and children who have 
received that knock on their front door and have been told their son or 
daughter, husband or wife, father or mother has been killed in the line 
of duty. They have been given a flag on this occasion, a flag which 
helps preserve the memory of their loved one and which speaks to his or 
her courage. That is the symbol, that is the emblem, that is the 
national monument.
  Requiring certain individuals to stop defacing or burning the flag, I 
think, is a very small price to pay on behalf of millions of Americans 
for whom the flag has deep personal significance.
  Less than a decade ago, when 48 States had laws against flag burning, 
there was no less free speech. And if this amendment is adopted, the 
First Amendment will continue to thrive. I believe S.J. Res. 14 will 
protect the integrity of the flag and keep our First Amendment 
jurisprudence intact.
  While expressing my support for S.J. Res. 14, I briefly want to 
explain why I oppose the amendment my colleague from Kentucky, Mr. 
McConnell, offered. His amendment, derived from the text of S. 982, 
would have had the effect of replacing the constitutional language with 
statutory language.
  However well-intentioned and earnest the Senator was in offering the 
amendment, I believe it was flawed. The Supreme Court, following its 
rulings in Texas v. Johnson and U.S. v. Eichman, would certainly strike 
it down as violative of the First Amendment. We have been down this 
road before.

  The Johnson and Eichman decisions stipulate that neither Congress nor 
the States may provide any special protection for the flag. In both 
decisions, the Court made it clear that special legal protections for 
the American flag offend the Court's concept of free speech. Because 
the Court views the flag itself as an object of symbolic speech and not 
as a monument, any conduct taken with regard to the flag constitutes 
protected expression, as well. So we cannot overrule such a notion with 
a statute. That is why, clearly and simply, we need a constitutional 
amendment. And that is why I stand today to support that amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.

[[Page S1804]]

  Mr. LEAHY. Mr. President, am I correct that the Senate is not 
operating under a time agreement?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. Mr. President, I note that even without a time agreement, 
we have had a good debate. Senators on both sides of the issue have 
spoken. We have had practically no quorum calls. We should have debate 
like this where Senators can speak.
  I see two of the most distinguished veterans of the Vietnam war on 
the floor, the distinguished Senator from Nebraska, Mr. Kerrey, and the 
distinguished Senator from Virginia, Mr. Robb. Both are highly 
decorated veterans of that war.
  I ask unanimous consent that I be able to yield to the Senator from 
Nebraska, and then upon completion of his statement, that he be able to 
yield to the Senator from Virginia.
  Mr. HATCH. Mr. President, reserving the right to object.
  Mr. LEAHY. I withhold the request so the Senator from Utah can speak.
  Mr. HATCH. Reserving the right to object, as I understand it, the 
Senate has to go out at about 5:30.
  Mr. LEAHY. I renew the request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nebraska.
  Mr. KERREY. Supporters of this amendment are winning converts. Each 
election cycle seems to bring them closer to the 67 votes they need to 
send this 17-word amendment to the States for their ratification. And 
49 legislatures have already indicated they would ratify this amendment 
if Congress were to take this action.
  Mr. President, these 17 words would make it constitutional for 
Congress to pass a law giving the government the power to prohibit the 
physical desecration of the flag of the United States of America.
  Let me say at the beginning that I have deep respect for those who 
have views that are different from mine. The Senator from California 
spoke very eloquently in favor of this amendment. I have heard the 
distinguished Senator from Utah, indeed, submit a personal appeal for 
me to reconsider my views on this issue. I have a great deal of respect 
for the purpose of this amendment. I especially pay tribute to the U.S. 
American Legion. These patriots have done more than any others to help 
young Americans understand that freedom is not free.
  I have had the honor, through 16 years of public service, to 
experience what the American Legion and other service organizations 
have done, but especially the American Legion and the Girl's State and 
Boy's State organizations, taking on the people who do not understand 
the history and the story of the United States of America. They teach 
them that story, that history, and they teach them to require the 
respect necessary to be a good citizen. It is the value they add to our 
community that is immeasurable.
  I have listened with an open mind to their appeals that I support 
this amendment. Regretfully and respectfully, I must say no.
  I fear the unintended consequence of these 17 words and the laws that 
may be enacted later will be far worse than the consequences of us 
witnessing the occasional and shocking and disgusting desecration of 
this great symbol of liberty and freedom.
  Mr. President, real patriotism cannot be coerced. It must be a 
voluntary, unselfish, brave act to sacrifice for others. When Americans 
feel coercion, especially from their Government, they tend to rebel. So 
none of us should be surprised if one unintended consequence of the 
laws that prohibit unpopular activity such as this is an actual 
increase in the incidence of flag desecration.
  Another unintended consequence of this amendment will be the 
diversion of police resources from efforts to protect us from dangerous 
crime. Nobody should underestimate that this fact will happen. The 
efforts to protect us from those who desecrate the flag will require 
the training of police officers on when and where to respond to 
complaints.
  Mr. President, we pass the laws, but others must implement and 
enforce them. They will receive complaints about neighbors and friends 
or people who desecrate the flag. The police will have to respond to 
every one of them. These laws will give the power of the Government to 
local law enforcement agencies to decide when some individual is 
desecrating the flag.

  There are 45 words in the first amendment and this amendment protects 
the rights of citizens to speak, to assemble, to practice their 
religious beliefs, to publish their opinions and petition their 
Government for redress of grievance. The 17 words that are in this 
proposed 28th amendment would limit what the majority of Americans 
believe is distasteful and offensive speech.
  Though this seems very reasonable because most Americans do not 
approve of flag desecration, it is only reasonable if we forget that it 
is the right to speak the unpopular and objectionable that needs the 
most protecting by our Government.
  In this era of political correctness, when the fear of 30 second ads 
has homogenized and sterilized our language of any distasteful truths, 
this amendment takes us in the opposite direction of that envisioned by 
our Founding Fathers whose words and deeds bravely challenged the 
status quo.
  Last year when I testified about this before the Judiciary Committee, 
I took the liberty of buying an American flag and gave it to the 
committee.
  I bought that flag because every time I look at it, it reminds me 
that patriotism and the cause of freedom produces widows. Widows who 
hold the flag to their bosom as if it were the live body of their 
loved-one.
  The flag says more about what it means to be an American than a 
thousand words spoken by me. Current law protects the flag. If anyone 
chooses to desecrate my flag--and survives my vengeful wrath--they will 
face prosecution by our Government. Such acts of malicious vandalism 
are prohibited by law.
  The law also protects me and allows me to give a speech born of my 
anger and anguish in which I send this flag aflame. Do we really want 
to pass a law making it a crime for a citizen despondent over a war, or 
abortion, or something else they see going on in their country to give 
a speech born of their anger? Do we really want a law that says the 
police will go out and arrest them and put them in jail?
  I hope not. Patriotism calls upon us to be brave enough to endure and 
withstand such an act--to tolerate the intolerable. I sincerely and 
respectfully thank all of those who hold views different from mine for 
their patriotism. I will pray this amendment does not pass. But I thank 
God for the love of country exhibited by those who do.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Virginia is recognized.
  Mr. ROBB. Mr. President, thank you. I thank my distinguished 
colleague and fellow Vietnam veteran from Nebraska for his words. It is 
an important topic.
  Mr. President, when I came home from Vietnam a little over thirty 
years ago, I came home to a nation divided. I was assigned by the U.S. 
Marine Corps to head up a major officer recruiting program on college 
campuses all across America. It was 1969 and anti-war fever was 
consuming the nation. As you can imagine, my Marine uniform on a 
college campus became a lightning rod for protests and protesters. In 
this assignment, Mr. President, incoming bullets, rockets and artillery 
were replaced by insults, jeers and demonstrations. At times, it was 
tough.
  I had just spent a tour of duty, which included commanding an 
infantry company in combat, and over 100 of my men received the Purple 
Heart, almost a quarter of them posthumously. Like all other warriors 
who served in uniform, it wasn't their job to question the policy that 
sent them to Vietnam, but they answered the call and those that died, 
did so with honor, for our Nation.
  So while I did my best to reason with the crowds that came out to 
greet me on college campuses, I didn't appreciate the instinctive 
disrespect that was shown to me and the uniform I wore.
  But Mr. President, I rise today to defend the rights of those 
individuals 30 years ago to protest me and my uniform.
  Freedom of speech is the foundation of our democracy--and silencing 
that speech would have been against everything I had fought for in 
Vietnam. To

[[Page S1805]]

paraphrase an old saying: I didn't agree with what they said. But I had 
been willing to die to protect their right to say it.
  Mr. President, I am repulsed by any individual who would burn the 
flag of my country to convey a message of dissent. It is an act I abhor 
and can barely comprehend. But in the democracy that our forefathers 
founded, and that generations of Americans have fought and died to 
preserve, I simply do not have the right to decide how another 
individual expresses his or her political views. I can abhor those 
political views, but I cannot imprison someone for expressing them. 
That's a fundamental tenet of democracies and its what makes America 
the envy of the world, as the home of the free and the brave.
  Mr. President, when we frame the acceptable context for conveying a 
political message, we qualify freedom in America. We chip away at the 
extraordinary freedom that has distinguished us from our enemies for 
200 years.
  Last week, I received an e-mail from a retired U.S. Marine Corps 
Colonel from Virginia. Like many Americans (and many American 
veterans), he had struggled with this issue and searched his conscience 
for what's right. In his message to me, he said: ``I have seen our flag 
torn in battle, captured by our enemies, and trampled on by protesters. 
In all those events I never felt that the American way of life was in 
grave peril . . . for whenever our flag fell or was destroyed there was 
always another Marine to step forward and pull a replacement from his 
helmet or ruck sack.''
  He continued: ``The Constitution is the bedrock of America, the 
nation . . . the people. It is not possible to pull another such 
document from our `national ruck sack.' We have but one Constitution, 
and it should be the object of our protection.''

  Mr. President, there is no question that it is precisely because the 
flag represents those sacred ideals that define our democracy, that we 
are so angry to see one being trampled or torn or torched. What angers 
us the most is the message of disrespect that desecration conveys. The 
ingratitude of the desecrater is tangible and we simply cannot help but 
be outraged. How can anyone be so shallow and so ungrateful that they 
would destroy the flag of a nation so great that it gives them the 
freedom to commit such a despicable act?
  In fact, Mr. President, it is the motivation of the flag burner, not 
the burning of the flag itself, that makes us so angry that we want to 
punish that individual and throw away the keys. We know that when an 
American flag is old and tattered, or damaged and no longer fit to fly, 
we don't bury it, or throw it in the trash. We burn it. That is the 
proper, respectful method of disposing of a flag. So it is not the 
burning of the flag that stirs us to anger. It is the reason why the 
flag was burned that gets us so upset. And the reason why the flag is 
burned (to convey a message of dissent) is the reason why the 
Constitution protects it.
  It is precisely because the act of flag burning sends a message that 
elicits such a visceral and powerful response that it is undeniably 
speech. Vulgar, crude, infantile, repulsive, ungrateful speech, but 
undeniably speech.
  Mr. President, since speech that enjoys the support of the majority 
is never likely to be limited, the Bill of Rights, by its very design, 
protects the rights of a minority in key areas that the founders held 
dear. And it is the freedom to dissent peacefully that separates the 
greatest democracy the world has ever known from other regimes like 
those in China, Cuba, Iraq, and others where political dissent has been 
met with imprisonment and sometimes death.
  We've applauded the awarding of the Nobel Peace Prize to individuals 
in other countries willing to risk their lives to peacefully protest 
their government. And we know that the first sign that freedom is in 
trouble anywhere around the world is when the government starts locking 
up its dissenters.
  If we reach past our natural anger and disgust for a few publicity-
hungry flag-burners, we know in our hearts that a great nation like 
ours, a nation that defends liberty all over the world, should not 
imprison individuals who exercise their right to political dissent. And 
we know in our hearts that a few repulsive flag-burners pose no real 
danger to a nation as great as ours.
  Mr. President, a great defender of freedom in the world, General 
Colin Powell, had this to say in letter last year about this amendment:

       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 which we agree or disagree, but also 
     to 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, our flag stirs very deep emotions in me. It never 
fails to inspire me. I still get a chill down my spine when it passes 
in a parade. And I've handed it, folded, to too many widows not to 
revere it to the core of my being.
  I fully support the Citizens Flag Alliance and especially my fellow 
members of the American Legion for all their hard work to instill in 
our people a greater respect for our flag. I understand why so many of 
my fellow veterans support this amendment. But I want the same thing 
they want. I want all of our citizens to respect our flag and all that 
it stands for.
  Mr. President, I want that flag to be the proud symbol of a nation 
that is truly free. And for it to be that proud symbol, we must also 
protect the sacred freedoms placed in the first amendment of the 
Constitution by our forefathers.
  Mr. President, I am a proud veteran of the U.S. Marine Corps. And I 
learned many lessons serving in combat in Vietnam. I served with 
Marines who loved this country and were great patriots. They were often 
young and sometimes scared. But they risked their lives in Southeast 
Asia.
  Some of those brave warriors died for our nation. On two separate 
occasions, I had men literally die in my arms.
  Those who made the ultimate sacrifice may have died keeping faith 
with their country. They may have died so that others might be free. 
They may have died for an ideal or a principle or a promise--sacred 
intangibles that transcend time. Some might say they died for the flag. 
But I was there, Mr. President, and they did not die for a piece of 
cloth (however sacred), that eventually becomes worn and tattered and 
eventually has to be replaced. No. They died fighting for all that our 
flag represents.
  My fellow veterans who died in combat sacrificed their lives for 
these intangibles that are the core values of our democracy. They died 
for liberty and tolerance, for justice and equality. They died for that 
which can never burn. They died for ideals that can only be desecrated 
by our failure to defend them.
  In opposing this amendment, I truly believe that I am again called 
upon to defend those intangible ideals--like freedom and tolerance--for 
which so many of us fought, and too many of us died. I am in a 
different uniform today, in a different place and time. But I feel as 
if, in some way, I am again battling the odds to defend principles 
that, as a younger man, I was willing to die for. I'd still put my life 
on the line today to defend those principles.
  I say that because the flag represents freedom to me. But the first 
amendment guarantees that freedom. And when we seek to punish those who 
express views we don't share, then we--not the flag burners--we begin 
to erode the very values, the very freedoms, that make America the 
greatest democracy the world has ever known. I support our flag, and 
the republic for which it stands. But I cannot, with the faith I have 
in that republic, support this constitutional amendment.
  I thank the Chair. And I thank my distinguished colleague from 
Nebraska who has received the highest honor our country can bestow on 
any who has defended America in battle; the Medal of Honor. I am proud 
to appear with him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I commend the distinguished Senator from 
Virginia for his statement, as I do the distinguished Senator from 
Nebraska. I can assure my friend from Virginia, a

[[Page S1806]]

young marine, my son, will receive a copy first thing in the morning at 
his home in California of the speech by the Senator from Virginia and a 
speech by the Senator from Nebraska.
  Later this evening I am going to be having dinner with my oldest and 
dearest friend, a man I went to college with, a marine. He served the 
Republic and faced the same kind of reaction when he came back from 
combat from Vietnam. One day he was in a firefight in Vietnam, 2 days 
later he was walking down the street in his uniform in the United 
States, facing protesters' shouts.
  Having risked his life, as did both of you, he said what saved him 
through that time was to know exactly for what he fought. At least he 
has had the satisfaction of seeing so much of that come full circle: 
The Wall here, people realizing that whatever the protesters had 
against the war, it should not be against the warriors, especially when 
they see the names of tens of thousands who did not come back.
  I recall last year when the Senate rose as one to commemorate the 
heroism and valor of the Senator from Nebraska. Both of you have been 
decorated for heroism, both of you have faced near death in battle. I 
think both of you have come back here to serve your country in as 
strong a way as you did there, both as Senators but in bringing a calm, 
considered, integrity constantly throughout your service in the Senate.
  I am not a veteran. I did not serve in battle. But I think how proud 
I am to have served in the Senate with both of you. I thank you for 
your speech tonight. I hope all Americans and all Senators will listen.
  Mr. President, I met again today with Vermont representatives to the 
American Legion convention, which is taking place in Washington this 
week. These are people who deserve our respect, who served this nation 
in time of war, and who sacrificed so that our freedoms and way of life 
would triumph over Nazi Germany. As they gather, I pledge to continue 
to work with them to address the unmet needs of American veterans. 
Abraham Lincoln reminded us of our sacred obligation ``to care for him 
who shall have borne the battle, and for his widow, and his orphan.''
  Following the Judiciary Committee's hearings last year on the 
constitutional amendment to restrict the first amendment to protect the 
flag from use in political protest, I asked Maj. Gen. Patrick Brady, 
chairman of the Citizens Flag Alliance, what in his opinion were the 
most pressing issues facing our veterans. His response may surprise the 
proponents of the constitutional amendment. His response to my inquiry 
regarding the most pressing issues facing veterans was ``broken 
promises, especially health care.''
  I asked the same question of Professor Gary May, an American hero who 
lost both legs while serving his country in Vietnam. Professor May 
said:

       Veterans and their families need services and 
     opportunities, not symbolism. Recruitment for military 
     service is predicated in part on a quid pro quo--if honorable 
     service is rendered, then meaningful post-service benefits 
     will follow. Our record of making good on this contract is 
     not good. The favorable expressed sentiment for veterans by 
     supporters of the flag desecration amendment would be better 
     placed in support of extending and stabilizing services 
     responsive to the day-to-day needs of ordinary veterans and 
     their families.

  Have we followed this good counsel here in the Senate? The 
unfortunate answer is no. Our veterans and retirees have received more 
high-sounding rhetoric about patriotism than real efforts on our part 
to resolve the broken promises.
  During the debate on the Intermodal Surface Transportation Efficiency 
Act of 1998, the Senate voted to shift over $10 billion worth of 
critical veterans funding to help pay for extravagant highway spending 
programs.
  Three times that year, the Senate raided veterans' programs: in the 
budget resolution, in the IRS Reform legislation, and in the VA/HUD 
Appropriations Bill. All three times, too many Senators voted against 
the veterans. If only a few more of those who now beat their chests 
about symbolic actions had voted for them, the necessary funding for 
veterans would have been assured.
  We have had numerous other missed opportunities to increase the funds 
in the Veteran Administrations medical care account. Hospitals are 
seeing more patients with less funding and staff, and it can take 
months to get a doctor's appointment. It is not mere symbolism to fund 
those hospitals.
  It has been estimated that a third of all homeless people in this 
country are American veterans. Many of those people may be suffering 
from post-traumatic stress disorder or other illnesses relating to 
their military service.
  We all know that with the end of the cold war, military bases are 
closing. Military retirees who relied on the base hospitals for space-
available free medical care are losing access to care. Many service 
members retired near military bases specifically so that they could 
enjoy the free medical care we promised them, but now they have to find 
health care in the marketplace.
  I saw this in Vermont recently, where we had to fight--yes, fight--to 
keep adequate funding for the only veteran's hospital in the State. The 
in-patient surgical program at the White River Junction VA hospital was 
nearly closed down. If the closure had gone through, many elderly 
Vermont and New Hampshire veterans would have had to travel all the way 
to Boston for medical care, and many of them just cannot. The VA has 
recommitted itself to the White River Junction program, but this sort 
of thing is happening all across the country.
  Last year, we finally raised the veteran's budget for medical care by 
$1.7 billion. I was particularly relieved that Vermont veterans finally 
received some assistance, in the form of a $7 million Rural Health Care 
Initiative. That funding will develop a number of innovative programs 
to bring high quality care closer to home. I would remind everyone that 
a majority of the Senate defeated an amendment offered by my friend 
Paul Wellstone that would have raised VA medical care funding an 
additional $1.3 billion in Fiscal Year 2000. I was proud to vote for 
the increase, but disappointed that more of colleagues did not go along 
with this much-needed amendment.
  We have a long way to go in ensuring that our veterans receive the 
health care that they so richly deserve. After many years of fixed 
funding and increased costs, we need continued funding increases, and 
new programs to provide higher quality care.
  We must also keep our promises to those who have completed a military 
career. I have strongly supported efforts to improve TRICARE, the 
military health care system upon which military retirees rely for their 
health care. The system is generally sound, but problems have arisen in 
developing the provider networks and ensuring quick reimbursements for 
payments. Last November, I supported a TRICARE forum in Burlington, 
Vermont, to allow retirees and other participants to express their 
concerns directly to health care providers. Of course, we must also 
ensure that Medicare-eligible retirees continue to receive high quality 
health care.
  What are we doing instead? In 1996, we changed the immigration laws 
to expedite deportation proceedings by cutting back on procedural 
safeguards and judicial review. The zealousness of Congress and the 
White House to be tough on aliens has successfully snared permanent 
residents who have spilled their blood for this country. As the INS 
prepares to deport American veterans for even the most minuscule 
criminal offenses, we have not even been kind enough to thank them for 
their service with a hearing to listen to their circumstances. Last 
year I introduced the Fairness to Immigrant Veterans Act, S. 871, to 
remedy this situation, but it has been bottled up in committee.
  If we truly wish to do something patriotic, what we should be talking 
about is honoring our veterans. We should honor our veterans by 
answering Lincoln's call ``to care for him who shall have borne the 
battle, and for his widow, and his orphan.'' We should honor our 
veterans with substance rather than symbols.
  If we fail to meet the concrete needs of American veterans and try to 
push them aside with symbolic gestures, we will have failed in our duty 
not only to our veterans, but to our country, as well. I wonder where 
we would be if the effort and funds expended each year lobbying for the 
constitutional amendment had been directed toward the needs of our 
veterans and their families

[[Page S1807]]

and to making sure that we honor them by fulfilling our commitments to 
them.
  I see one of the many veterans of World War II serving still in the 
Senate, and I will yield to my friend and neighbor, the distinguished 
senior Senator from New York.
  Mr. MOYNIHAN. Mr. President, I had not intended to speak in this 
debate. This is the fourth time this amendment has come to the floor 
since I have been present. But the speeches, statements, the addresses 
by the Senator from Nebraska and the Senator from Virginia compel me 
simply to bear witness to them. There are 10 Members in the Senate 
today, 10 remaining persons, who were in uniform in World War II.
  I was in the Navy--not heroically; and I was called up again briefly 
in Korea. I was part of that generation in which service to the Nation 
was so deeply honored, and lived with horror to see the disrespect 
shown those who answered the country's service in Vietnam, as they were 
asked to do. They were commanded to do so and they had taken an oath to 
obey.
  What a thrilling thing it is to see, two such exemplars, men of 
heroism, achievement and spotless honor, come to this floor and speak 
as they have done. We take one oath which binds us today. Those who 
have been in the military have taken earlier oaths. Our oath is to 
uphold and defend the Constitution of the United States against all 
enemies, foreign and domestic--not ``foreign or,'' not just 
``foreign.'' This was added over the course of the 19th century.
  Surely, there would be no one, however unintentionally--and I say 
this as a member of the American Legion--who would propose that to 
debase the First Amendment to the Constitution meets the criteria of 
upholding and defending it.
  Those two men have defended their nation in battle--one in the Navy, 
one in the Marines. I speak as one who was involved. I was in 20 years, 
altogether, before being discharged. I have to grant, I was not aware 
that I was discharged, but it turned up later in the file somewhere.
  Our oath is solemn, and it is binding, and they--Senators Robb and 
Kerrey--stand there as witness to what it requires of us. If we cannot 
do this on this floor, what can we expect Americans to do on 
battlefields, in the skies, under the seas, and on the land in the 
years ahead?
  Please, I say to all Senators, heed them and walk away from this 
trivializing of our most sacred trust. Defeat this amendment.
  I thank the Chair.
  Mr. DASCHLE. Will the majority leader allow me to make one brief 
comment before he propounds his unanimous-consent request?
  Mr. LOTT. Yes.
  Mr. DASCHLE. Mr. President, I came to the floor to thank the 
distinguished senior Senator from New York, but also my two colleagues, 
Senators Robb and Kerrey, for their extraordinary statements on the 
Senate floor. I hope the American people have had the opportunity to 
hear, and I hope the opportunity to read what they have said is made to 
schoolkids and others who have given a great deal of thought to our 
Constitution and the reason our Founding Fathers wrote as they did.
  Their eloquence and their power and their extraordinary 
persuasiveness ought to be tonic for us all late in the day on an 
afternoon which has seen a good debate. I am hopeful people have had 
the opportunity to hear this contribution, above and beyond all of 
those made so far in this debate.
  I yield the floor.

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