Congressional Record, Volume 151 Issue 91 (Friday, July 1, 2005)

[Congressional Record Volume 151, Number 91 (Friday, July 1, 2005)]
[Senate]
[Pages S7910-S7913]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. TALENT (for himself, Mr. Dodd, Mr. Alexander, Mrs.
Clinton, Mr. Cochran, Ms. Collins, Mr. Coleman, Mrs. Dole, Mr.
DeWine, Mr. Graham, Mr. Kerry, Mr. Kyl, Ms. Landrieu, Mr.
Nelson of Florida, Mr. Lott, Mr. Santorum, Mr. Schumer, Mr.
Martinez, Mr. Sununu, Ms. Snowe, Mr. Smith, and Mr. McConnell):
S. 1369. A bill to establish an Unsolved Crimes Section in the Civil
Rights Division of the Department of Justice; to the Committee on the
Judiciary.
Mr. ALEXANDER. Mr. President, I join the Senators from Missouri and
Connecticut in introducing the Unsolved Civil Rights Crime Act. I do so
because I believe that this legislation takes the right approach when
dealing with the wrongs of our past. It takes action. It takes positive
steps forward to correct injustices. It recommits us to one of our
highest ideals as Americans--that justice will not be denied.
Specifically, the bill creates a new office within the Department of
Justice Civil Rights Division specifically tasked to investigate ``cold
case'' murders from the civil rights era. It will commit the resources
of the Department of Justice to work in conjunction with State and
local law enforcement to aggressively prosecute criminals in those
cases.
The Unsolved Civil Rights Crime Act might well be named in honor of
James Chaney, Michael Schwerner, and Andrew Goodman--the three civil
rights workers who were shot to death by former Ku Klux Klansman Edgar
Ray Killen. Forty-one years later, thanks to the efforts of the
victims' families, Mississippi State officials, and many others who
would not let this crime go unpunished, Killen sits in solitary
confinement in a State prison outside Jackson, Mississippi, right where
he belongs.
Justice will not be denied. And the Unsolved Civil Rights Crime Act
will see to it that others like Edgar Ray Killen are punished for their
crimes. It will pour new resources into the investigations of other
unsolved cases--like that of 14-year old Emmett Till, who was kidnapped
and murdered in 1955.
Recently, the Senate apologized for the failure of earlier Senators
to enact federal antilynching legislation in the 1930s and 1940s. In
discussing that resolution, I reminded my colleagues of how often we as
a Nation have failed to live up to our great ideals. But usually when
we have failed, we have recognized that failure and recommitted
ourselves to those ideals and reached for them again. We did not simply
acknowledge our failure and give up--we took action to correct our
shortcomings. We abolished slavery. We granted women the right to vote.
We desegregated our schools. Here, with this bill, we take action once
more.
Actions speak louder than words. If the Edgar Ray Killen conviction
is any indication, then the action we would take by passing this bill
would speak very loudly indeed. When Killen was convicted, the
Nashville City Paper ran an editorial, which I will include in full
following my remarks, that summed up just why taking action is so
important. The editorial concluded, ``As long as Civil Rights era
killers are still alive and free, justice has not yet been fully
served. Hunting them down and bringing them to account for their
actions is far and away the best apology any of us can make for their
crimes.''
Today, we do not merely rest on words of apology--we take action.
When it comes to questions of civil rights that has always been what I
have tried to do. In 1962 when I was the student newspaper editor,
Vanderbilt University's undergraduate school was segregated. I could
have apologized for the actions of the board of trust; instead, I
helped integrate the school. As Governor and President of the
University of Tennessee, instead of apologizing for my predecessors, I
appointed the first African American Supreme Court Justice and
university vice-presidents. Instead of apologizing for Tennessee
legislatures that had refused to enact the Martin Luther King Holiday,
I helped make it law. I did not think it was effective merely to
apologize for what others had failed to do. America is a work in
progress. If we were to apologize for every failure to reach our lofty
goals, there would be no end to it.

[[Page S7911]]

I believe it is better to look forward and take action rather than
look backward and apologize for others. I believe this bill does just
that. Passing this bill today hopefully means that tomorrow one more
unsolved case is opened; one more criminal is brought to justice; one
more family can find peace.
Justice delayed is justice denied. This bill will help make sure that
justice will be delayed no longer. And it is for that reason that I am
proud to join my colleagues in cosponsoring the Unsolved Civil Rights
Crime Act.
I ask unanimous consent that the article I referenced earlier be
printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the (Nashville) City Paper, Jun. 28, 2005]

Punishing Men Like Killen Best Possible Apology

For most of early June, a heated debate raged in this
country over whether the U.S. Senate acted properly in
apologizing for failing to pass a federal anti-lynching law.
Much of the criticism was directed at Sen. Lamar Alexander,
who declined to co-sponsor the resolution.
It is hard to dispute that the federal government should
have acted sooner to protect the rights of all Americans
during the Civil Rights struggle. There was certainly no harm
in the Senate acknowledging its predecessors' institutional
failure in this matter. As Alexander and others pointed out,
however, an apology on behalf of long-dead third parties,
whatever their failures, is ultimately a gesture. This is not
the case with the conviction of Edgar Ray Killen in
Philadelphia, Miss.
Almost 41 years to the day after three Civil Rights workers
were set up by law enforcement officers and brutally murdered
by Klansmen, a Mississippi jury convicted Killen, one of the
crime's organizers, of three counts of manslaughter. In doing
so, the state of Mississippi did what it should have done
long ago: It fixed personal responsibility for this hideous
act on one of the perpetrators, as it took responsibility for
seeing justice done.
As author Robert Heinlein once observed, ``It is impossible
to shift blame, share blame, distribute blame . . . as blame,
guilt, responsibility are matters taking place inside human
beings singly and nowhere else.'' By prosecuting and
convicting Edgar Ray Killen, the state of Mississippi did
more than simply make a gesture shifting the responsibility
to past state leaders. As certainly as the verdict put some
of the responsibility for the murders on Killen, it also
demonstrated the acceptance by individual Mississippians of
the guilt and blame, not for the murders, but for the 41-year
wait for justice.
The task is not yet finished. As long as Civil Rights era
killers are still alive and free, justice has not yet been
fully served. Hunting them down and bringing them to account
for their actions is far and away the best possible apology
any of us can make for their crimes.
______

By Mr. BENNETT (for himself, Mr. Conrad, and Mr. Byrd):
S. 1370. A bill to provide for the protection of the flag of the
United States, and for other purposes; to the Committee on the
Judiciary.
Mr. BENNETT. Mr. President, I rise today to introduce legislation on
behalf of myself and Senator Conrad that has to do with the desecration
of the flag. All of us are angered when we see someone burn or
otherwise desecrate the American flag, and I believe it is appropriate
that we take such steps as are appropriate to deal with such
desecration.
Over the years I have been in the Senate, I have opposed amending the
Constitution to deal with this issue for two reasons. First, there are
not that many cases of flag desecration for us to see as we look around
the country. And I am reluctant to amend the Constitution to deal with
a non-problem. Flag desecration hit its peak during the Vietnam years,
but it has virtually disappeared now and occurs, ironically, only when
debate about amending the Constitution becomes a subject of public
discourse. We seem to stimulate flag desecration when we have the
debate on amending the Constitution with respect to it.
So for that reason, I have consistently opposed a constitutional
amendment on desecration of the flag.
However, as I have studied the matter and spent time with the legal
experts at the Congressional Research Service over at the Library of
Congress, I have found that there are things that can be done with
respect to flag desecration that also establish our reverence for the
flag, but do not require a constitutional amendment.
I have introduced this legislation before. It has not progressed in
the congressional process to the opportunity for a vote, and I am not
sure it will this time. But I wish to make it clear to my constituents
and to others who have concern about this problem that my objection to
a constitutional amendment should not be construed as demonstrating
indifference to the issue of reverence for the flag.
Senator Conrad has joined me on this occasion as he has at previous
times when this legislation has been introduced, and I am happy to have
him as an original co-sponsor on the bill at this time.
Mr. BYRD. Mr. President, will the distinguished Senator yield?
Mr. BENNETT. I will be happy to yield.
Mr. BYRD. I wish to associate myself with the remarks of the
distinguished Senator, and I would appreciate if he would add my name
as a co-sponsor.
Mr. BENNETT. Mr. President, I am happy to ask unanimous consent that
the honorable Senator from West Virginia be added as an original co-
sponsor to the bill.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BENNETT. I have been interested at the reaction that has come
from my constituents as I have held this position over the years. I
remember a conversation with Utah's most respected pollster just before
I cast my first vote against the flag amendment. He said: Senator,
according to my polls, 80 percent of the people of Utah are in favor of
a constitutional amendment with respect to the flag, and something like
60 percent of them consider it a voting issue. That is, they would be
more likely to vote against a candidate who voted against the flag
amendment than they would to vote for him. We talked about it, and he
said: What are you going to do? I said: Regardless of the poll numbers,
I am going to vote against the amendment. He laughed a little and he
said: That is what I thought. I think it will stand you in good stead
with your constituents who will respect your courage even if they do
not agree with your position.
I was grateful for those words of encouragement, and I am happy to
report that has happened.
I ask unanimous consent that at the end of my statement, two
editorials be printed in the Record from Utah's two newspapers with the
highest circulation, the Salt Lake Tribune and the Deseret Morning
News.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

(See Exhibit 1.)
Mr. BENNETT. The Salt Lake Tribune editorial makes this comment:

And it concludes with this sentence:

The rare act of torching an American flag is one of two
things: pointless or meaningful. If it is pointless, the
worst it could be called is vandalism, and should be treated
as such. If it is meaningful, even full of meaning we don't
like, then it is and must remain constitutionally protected
expression.

Now turning to the editorial from the Deseret Morning News, the lead
paragraph there says:

They conclude with this comment which I am happy to include in the
record because it says nice things about me. We always like comments
that do that. It says:

One of the Senate votes against it belongs to Utah Senator
Bob Bennett, who normally agrees with much that Senator Hatch
supports. He has said he is unwilling to overturn 200 years
of tradition in regard to the First Amendment.
He's right. The Constitution is no place for feel-good
amendments that do nothing but restrict freedoms.

Finally, Mr. President, I share with you the comment that I have had
from one of my colleagues also, and I will not speak directly for him
but associate myself with the line. He said: When my Senate career is
over, I don't want the most important constitutional vote that I have
cast to be one that weakens the first amendment.

[[Page S7912]]

I ask unanimous consent the text of the bill be printed in the
Record.
The ACTING PRESIDENT pro tempore. The Senator from Texas.
Mr. CORNYN. I thank the Chair. I am glad to be here in the Chamber
during the remarks of the Senator from Utah and have him explain for
all of our benefit his position on important issues such as flag
desecration. While I think some of us differ about the means to the
end, I think the end is important, and that is protecting the symbol of
our country and the symbol of our freedom. For myself, I think if we
can offer protection to a symbol of our country like the bald eagle,
then we should offer protection to other symbols of our country
including our flag. But I always consider Senator Bennett to be one of
the wise men in the Senate, and I certainly defer to his great judgment
and wisdom. I appreciate his introduction today, and I look forward to
studying it more closely.

Exhibit 1

[From the Deseret Morning News, Jun. 24, 2005]

Dump the Flag Amendment

Once again, the House of Representatives has passed a
constitutional amendment to protect the American flag from
desecration. This is an annual event almost as predictable as
the swallows returning to Capistrano. So, too, is the
Senate's annual ritual of not passing it.
This year, there is reason to think the Senate may be
inching closer to passing it, and that's a concern.
Few things are as reprehensible as watching someone protest
the government by burning the flag. Particularly at a time
when the nation is involved in a military conflict, it is a
stunning affront to brave men and women who are sacrificing
their all for freedom.
But it would be wrong to rewrite the Constitution to equate
a forced honoring of the flag with other freedoms guaranteed
by the Bill of Rights. As upsetting as it is, flag burning is
a form of expression every bit as much as flag waving. And a
nation that attributes part of its greatness to its
willingness to tolerate dissent and protest can't afford to
stifle this type of speech.
Flag burning--an occurrence so rare most Americans would be
hard-pressed to pinpoint the last time they saw it--would not
disappear because of an amendment. Chances are, it would
become more prevalent, out of some misguided attempt to stand
on principle. That would harm public morale at an important
point in history, and the pride many Americans feel in their
ability to tolerate free speech would feel more hollow.
Besides, an amendment would raise a number of troubling
questions that surely would be tested by 1 the nation's
detractors. Would it be illegal to desecrate something that
was almost a flag? For instance, if protesters create
something that looks like the flag but has less than 50
stars, could they be punished for burning it? And what about
hanging the flag upside down or in other ways considered
disrespectful? A lot of clothes these days, from hats to T-
shirts to blue jeans, contain images of the flag. Would
these, too, be covered under the amendment? Would they,
themselves, be illegal?
Courts would be kept busy for decades answering these and
other questions.
This is the sixth time the flag amendment has passed the
House. Should it pass the Senate, where its sponsor is Utah
Sen. Orrin Hatch, it would be almost assured of ratification
by the states. All 50 states already have resolutions calling
for it to pass.
One of the Senate votes against it belongs to Utah Sen. Bob
Bennett, who normally agrees with much that Hatch supports.
He has said he is unwilling to overturn 200 years of
tradition in regard to the First Amendment.
He's right. The Constitution is no place for feel-good
amendments that do nothing but restrict freedoms.
____

[From the Salt Lake Tribune, Jun. 24, 2005]

Flag Desecration: Amendment Would Limit the Rights That the Flag
Symbolizes

If respect for something has to be required by law, then it
isn't respect. If regard for a symbol of freedom has to be
imposed by carving a hole out of our basic charter of rights,
then it isn't freedom.
We sympathize with those whose eyes water, fists clench or
guts churn whenever they see someone destroying an American
flag. It is generally a juvenile act by someone who just
wants to attract attention by shocking the straights.
But living in a free nation requires putting up with a lot
of attention-getting behavior, especially the kind that
neither breaks our arm nor picks our pocket.
Thus much praise is due Utah's Sen. Robert Bennett and Rep.
Jim Matheson for showing the political maturity to again
oppose a proposed constitutional amendment that would allow
Congress to ``prohibit the physical desecration of the flag
of the United States.''
That amendment passed the House Wednesday, with Utah Reps.
Chris Cannon and Rob Bishop in the 286-130 majority. It now
goes to the Senate, where Utah's Orrin Hatch will again push
for its passage.
It is sad to see Hatch, who has been showing some wisdom
born of soul-searching on issues such as immigration reform
and stem-cell research, still clinging to this rote response
to a problem that doesn't exist and wouldn't need solving if
it did.
For one thing, the amendment is represented as a simple
patriotic statement. But the fact is that it would, if
passed, by two-thirds of the Senate and ratified by three-
fourths of the states, become a field day for anti-anything
activists, smarty-pants lawyers and activist judges.
By one definition of the word, to ``desecrate'' is to
defile a sacred object. Sacred is a religious, not a civil,
term. Thus it could be argued that it is etymologically
impossible to ``desecrate'' a symbol of an earthly nation.
The other meaning of the word is basically to treat
something with disrespect. That would including burning and
soiling. But would it also include the woman who just the
other day wore a flag-patterned bikini top to frolic in the
Olympic fountain at the Gateway?
The rare act of torching an American flag is one of two
things: pointless or meaningful. If it is pointless, the
worst it could be called is vandalism, and should be treated
as such. If it is meaningful, even full of meaning we don't
like, then it is, and must remain, constitutionally protected
expression.

Mr. CONRAD. Mr. President, as we prepare to celebrate our Nation's
independence this weekend, many familiar images come to my mind:
fireworks, family, celebration, community, parades, apple pie and
everything American. Above all, I think of the flag on the Fourth of
July.
The American flag is a powerful symbol in this country. It represents
many things to many Americans--our Nation, our independence, our
principles, and our sacrifices, among other things. To some of our
brave servicemen and women who fought for this country, the flag
symbolizes our freedom. To others, including parents of soldiers killed
in battle, the flag is symbolic of all Americans who gave their lives
in all wars.
I have the utmost respect for the flag as a symbol of our Nation and
our freedom, and abhor acts of desecration against it. Burning a flag,
or otherwise dishonoring it, is repugnant to me, my colleagues, and the
brave men and women who serve and have served in the Armed Forces, as
well as the vast majority of American citizens. We must protect the
flag from the acts of those few who would dishonor it.
That is why I am joining Senator Bennett today in introducing the
Flag Protection Act of 2005, to criminalize flag desecration. While
other flag protection statutes have been found to be unconstitutional,
this bill was carefully crafted to avoid the problems of previous
statutes. In fact, the American Law Division of the Congressional
Research Service has studied it and believes it would pass
Constitutional muster.
It is my hope that we can act quickly to protect the flag. This bill
will accomplish that goal, and I ask my colleagues to give it serious
consideration.
______

By Mr. BURNS (for himself, Ms. Snowe, Mr. Martinez, and Mr.
Allen):
S. 1372. A bill to provide for the accuracy of television ratings
services, and for other purposes; to the Committee on Commerce,
Science, and Transportation.
Mr. BURNS. Mr. President. I rise to introduce the FAIR Ratings bill.
I am pleased to be joined in introducing this bill by my colleagues,
Senators Martinez, Snowe, and Allen.
As a former broadcaster, I understand that when TV stations plan
their programming, they and their advertisers must rely on the
information provided by commercial TV ratings companies. And it is
vital that this data be as accurate, fair, and inclusive as possible,
because TV ratings ultimately determine what programming ends up on the
air. They also help broadcasters to meet their public interest
obligations. For these reasons, I feel that it is very much in the
public interest for TV ratings to be fair, accurate, and as fully
representative of the population as possible.
The dominant company that provides TV ratings, and has done so for
the last 50 years, is Nielsen Media Research. Nielsen is a great
company and a great American institution--no doubt about it. The
innovation that Nielsen showed in its early years, and continues to
show today in other ways, show that its leading role in the field is
well-deserved.

[[Page S7913]]

Our friends from Nielsen may have already spoken to many of you about
this bill, and let me assure you up front that this is not a bill
``against'' Nielsen. It would apply to any other company or new
technology whose ratings service determines what we see on TV. But
Nielsen will definitely be the most affected party if the bill passes,
so let me characterize this instead as a bill to keep Nielsen honest
and accountable to its customers, and to the public.
Because Nielsen today is pretty close to being a monopoly, any way
you look at it. A private, unregulated monopoly provider of an
essential public service. And as basic economics and everyday practice
show, monopolies have the ability to abuse their power, because they
are not constrained by competition--there is nowhere else for a TV
station or advertiser to go if they don't like what they get or how
they are treated. Barriers to entry are pretty high in that business--
it is not simple or cheap to set up a nationwide TV ratings service.
And that monopoly power has been abused in the past. Forty years ago
or so, there were a couple of nationwide scandals about TV ratings. I
remember that well, and some of you may even have seen the movie.
Payola and game shows. At that time, Nielsen's service was found to be
mixed up with all that in some way, and was reporting flawed data.
And Congress got involved. The Senate had hearings for many months,
and at the end of it, there was a report--the Harris Commission
report--that called for the creation of an independent, industry-run,
private oversight body to audit and accredit Nielsen's ratings
measurement systems for accuracy.
That body was created in 1964 and is now called the Media Rating
Council. It continues to audit and accredit TV ratings systems to this
day, consulting closely with Nielsen and its own members, who are the
main consumers of TV ratings data. It has long experience and great
expertise at conducting audits of ratings data for quality and
accuracy. And it has broad industry support and participation.
The Media Rating Council's role today, and its relationship with
Nielsen, or any other TV rating company that may come to equal
prominence in the future, are what concern me and moved me to introduce
this bill.
Last year, Nielsen introduced a new technology called Local People
Meters, which was designed to measure viewer behavior in a more
accurate way and to replace the old paper diaries. This system was
similar to a technology that Nielsen had introduced in the late 1980s.
In both cases, there were big changes in the TV ratings when Nielsen
moved from the old system to the new one. To the extent that these
changes simply captured viewer preferences more accurately, this was
good for the industry and for TV viewers in general. There is no public
interest in which channel gets higher or lower ratings, so long as the
measurement is accurate.

But in certain cases, in four of our largest cities last year, it was
not. It turns out that, since the meters operate differently from the
diary system, there were flaws in the measurement of the underlying
data by demographic group, due to higher ``fault rates'' among certain
groups: African-Americans, Hispanics, younger viewers, larger families,
and certain others.
And here is where the Media Rating Council came in. They had audited
the data and examined the people meter system in certain cities in
advance, in a trial period, and identified these problems. And they
told Nielsen about them in advance. And they told Nielsen that the
undercounting should be fixed before it sold the data from this system
commercially.
And what did Nielsen do? It effectively ignored the MRC's prior
findings. It said it would work to fix the system while it was already
``live'' and producing real TV ratings--with those flaws--and would
continue to roll out the new technology in other cities before the
problems were fixed in the old ones.
I chaired a hearing last summer in the Commerce Committee on this
issue, and have continued to monitor the situation closely since then.
At that hearing, Nielsen indicated that it would have the problems
fixed within a few weeks. Now, a year later, they are still not fixed,
despite clear instructions from the Media Rating Council. And while
Nielsen has been cooperative with customers and critics--to its
credit--the fundamental issue of oversight enforcement has not been
resolved.
Now I agree with Nielsen, and most others do too, that the people
meters, when implemented correctly, produce better numbers than the
diaries. And we should be glad that Nielsen is devoting the resources
to developing new technologies, as it should. The diary system, after
all, hasn't really changed much since the 1950s.
But it is also clear that Nielsen should not have moved ahead without
the full prior approval of the Media Rating Council, which is the
expert organization set up--at the behest of Congress--to ensure TV
ratings accuracy. It was this action, more than any of the other
details of the controversy, that indicated to me that the oversight
system was missing some essential teeth.
So my bill simply makes prior Media Rating Council accreditation for
TV ratings systems mandatory, not voluntary, as it is today. It
backstops a system that has been in place for 40 years.
It is not a bill about the Local People Meter system. It is not a
bill about the ratings of one broadcast company or any group of
companies. It is not even a bill about Nielsen, although it will
clearly be the most affected company.
Further, there is no government role whatsoever envisioned in this
bill. It does not create any new government standards, regulation, or
bureaucracy: the oversight will be carried out by a private, self-
governing, industry body that has already been operating for 40 years.
So, I hope we can all agree that accurate TV ratings are in the
public interest. I hope we can all agree that private industry
oversight, by the entity set up by Congress 40 years ago, is the best
way to ensure that. And if we can, I hope all of my colleagues in the
Senate will support this bill, on behalf of all television viewers
throughout the United States.

____________________