Why the Republicans waved the flag amendment this week

By Bob Dart, The Oxford Press (Oxford, Ohio), June 28, 2006

WASHINGTON - By a single vote, the Senate failed to pass a constitutional amendment Tuesday to give Congress the power to protect the American flag.

The 66-34 vote was one short of the two-thirds majority needed to send the amendment to the state legislatures, where ratification was likely.

Opponents argued that the amendment would infringe on the constitutional guarantee of freedom of expression.

"While I take offense at disrespect to the flag," said Sen. Daniel Inouye, D-Hawaii, who lost an arm fighting in World War II, "I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech."

The 18-word amendment would not outlaw flag burning or other harms. It reads: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."

"This amendment does not ban anything.? It does not amend the First Amendment.? It does not prohibit speech," said Sen. Orrin Hatch, R-Utah, author of the amendment. If ratified, the amendment would give Congress the power to define, as well as prohibit, 'physical desecration' but the issue of what constitutes "desecration" would not be debated until after the 38 state legislatures approved the measure.

Sen. Frank Lautenberg, D-N.J., noted that desecration, like beauty, could be in the eye of the beholder. He held up a poster of Kid Rock wearing the American flag as a poncho and noted the musician performed for the Republican National Convention in 2004, McClatchy News Service reported.

"They partied with him, they loved him!" Lautenberg said.

The Supreme Court has already struck down federal statutes aimed at protecting the physical integrity of the flag.

"The only avenue available for restoring protection to the flag is to amend the Constitution.? Otherwise, any legislation passed by Congress or state legislatures will simply be struck down," said Sen. Dianne Feinstein, D-Calif.

"I do not take amending the Constitution lightly.? It is a serious business and we need to tread carefully.? However, the change we seek to make is narrow, it is limited, and it is necessary," said Feinstein, a co-sponsor. "Protecting the flag will not prevent anyone from expressing his or her point of view, regardless of what that point of view may be," she argued. "Limiting this very specific conduct will leave both the flag and speech safe."

Three Republicans voted against the amendment and 14 Democrats voted for it. President Bush, although he has no part in the amendment process, supported the measure and the issue is likely to be revived in the fall political campaign.

As the Senate voted on the amendment, a poll was released showing only 49 percent of registered voters thought flag burning was a "very important" issue - compared to 82 percent for education, 80 percent for the economy, 75 percent for Social Security, 74 percent for the situation in Iraq, 58 percent for immigration and 52 percent for the environment.

But the poll by the Pew Research Center for the People & the Press also showed that 60 percent of Republicans believe the flag protection amendment is very important - thus illustrating why the GOP Senate leadership devoted crucial days to the issue.

"Issues like gay marriage and the flag amendment are much higher priorities within the Republican base than they are with Democrats and independents," said Michael Dimock, associate director of the Pew Center. "That's why they're used to mobilize" GOP voters.

And the poll shows why Republicans are anxious to energize their core supporters with only five months to go before the fall congressional elections.

"The level of enthusiasm about voting among Democrats is unusually high and is atypically low among Republicans," the survey said. "In fact, Democrats now hold a voter enthusiasm advantage that is the mirror image of the GOP's edge in voter zeal leading up to the 1994 midterm election" when Republicans won control of Congress for the first time in half a century.

Political analysts said Republicans have been more successful in using such "wedge issues" although the tactic may be waning in effectiveness.

"To me, the flag protection amendment is part of a left-over agenda," said Stephen Hess of the Brookings Institution, a Washington think tank. "It's the tail end of something ... and doesn't have much force any more."

Even supporters concede there have been few cases of flag burning in recent years.

But Republicans have used this issue and others like it to electoral advantage before. A vote against the flag protection amendment in 2000 was used in 2004 to help defeat Tom Daschle of South Dakota, then the Senate's top Democrat. Sen. Harry Reid of Nevada, who replaced Daschle as Minority Leader, supported the amendment. So did Democratic Sens. Bill Nelson of Florida, Ben Nelson of Nebraska and Debbie Stabenow of Michigan, all up for re-election in states where the amendment is popular.

"It took Republicans 30 years in the minority to learn how to exploit these issues. Democrats are mostly on the defensive," said Norman Ornstein, a congressional analyst with the American Enterprise Institute. "On issues such as flag burning and school prayer and same-sex marriage, the Republicans can get their conservative base fired up without alienating the middle that is less passionate but generally supportive" of the GOP measures.

"Intensity matters as much as the balance of opinion," said Dimock. "The challenge for Democrats is to take an issue like the minimum wage and try to use issues like that to try to mobilize their base."

In the Senate debate over flag-burning, though, some Democrats tried to turn the use of wedge issues into a wedge issue.

"We honor America when we in the Senate do our jobs, when we work on the matters that can improve the lives of ordinary Americans.? Let us act to raise the minimum wage, to lower gas prices and to provide better health care and health insurance for more Americans," said Sen. Patrick Leahy, D-Vt, ranking minority member on the Judiciary Committee, also urging government funding for stem cell research.

Supporters of the amendment pointed to polls showing that the majority of Americans back it - as have a bipartisan majority of senators each time it has come to a vote. And while Reid, the Democratic leader, backed the amendment, the second-highest ranking Republican in the Senate, Mitch McConnell, opposed it.

The Senate was seen as the chief hurdle to ratification. The House has approved the amendment five times - most recently by a 286-130 vote last year. And legislatures in all 50 states have expressed at least qualified support for a flag protection amendment so both sides believe this measure would be approved by 38 states needed for ratification if it passes the Senate.

Along a party line vote, the Senate voted down an alternative to the amendment that would have made it illegal to damage the flag on federal land or with the intent of breaching the peace or intimidation. It also would have prohibited unapproved demonstrations at military funerals. Republicans said the measure was only to provide political cover for Democrats who opposed the amendment and would be struck down by the Supreme Court, as have other such statutes. Democrats said the bill was crafted to pass constitutional muster and would protect the flag without endangering the First Amendment.

The Pew Poll of 1,501 adults was taken June 14-19 and has a sampling error of plus or minus 3 percentage points.

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