Why the flag amendment hasn't cleared Senate hurdle

If every current senator who voted for a flag amendment in the past had done so this week, a constitutional amendment authorizing the Congress to ban desecration of the flag would be on its way to the states for ratification.

But two senators – Robert Byrd (D) of West Virginia and Kent Conrad (D) of North Dakota – did not, and the amendment went down, as it has the last three times the Senate has taken it up. "We love that flag. But we must love the guarantees of the Constitution more," said Senator Byrd, before the vote, which failed 66-34.

Ever since the Supreme Court struck down flag protection legislation in 1989 and 1990, the US House of Representatives has passed a constitutional amendment reclaiming that authority in every new Congress.

And just as predictably, the Senate has either voted it down or failed to take it up. In 1990, the measure failed in the Senate by nine votes; in 1995 and 2000, by four. Late Tuesday afternoon, the margin was one vote.

But the vote wasn't as close as it looked, because Democrats were committed to finding the votes needed to fight the amendment. On the eve of the vote, Senate Democratic leader Harry Reid, who had voted for an amendment banning flag desecration in 1990, 1995, and 2000, said he would vote for it again, because he was sure "it would not pass."

Thirteen other Democrats, mainly from states that sent their electoral votes to President Bush in the last election, joined him in supporting the bill.

Because a constitutional amendment requires a vote of two-thirds of those senators present and voting, the search for the 67th senator lasted until the final minute. But even sponsors doubted whether that goal was attainable.

"At the last minute, the Democrats will always pull someone back across the line. They've done it before – usually, with someone not up for reelection," said Sen. Orrin Hatch (R) of Nevada, a sponsor of the amendment, off the Senate floor just before the vote.

Republicans also headed into battle without their best vote counter. Majority whip Mitch McConnell (R) of Kentucky opposed the amendment, along with GOP Sens. Robert Bennett of Utah and Lincoln Chafee of Rhode Island.

These senators said that a constitutional amendment was not needed and that pending legislation could adequately protect the flag.

Sens. Bennett and McConnell had also stood together in opposing campaign-finance reform in 2002, arguing that limits on campaign spending amounted to limits on the constitutional right to free speech – a concern that also extends to protests involving flag burning.

"Our Founding Fathers wrote the first amendment because they believed that, even with all the excesses and offenses that freedom of speech would undoubtedly allow, truth and reason would triumph in the end," said Senator McConnell, before the vote.

It was an especially tough call for Bennett, whose "no" vote put him at odds with fellow Utah senator Hatch.

"This is not something [Hatch] is doing for any cheap political purpose," he said, just before the vote. "He is sincerely committed to the idea that protecting the flag is an essential thing for us to do.... I respect that, and I am with him. But I cannot quite bring myself to amend the Constitution in the manner that he suggests for those purposes."

Democrats opposing the amendment said it was politically motivated to rouse the GOP base and not needed. "What we're being asked to do is historic. It's the first time in the history of America we would be amending the Bill of Rights," said Deputy Democratic leader Richard Durbin of Illinois, who led the floor fight for Democrats.

While the number of senators supporting a flag amendment has been on the rise, the level of support among the general public has been on the decline. Some 56 percent of Americans favor an amendment allowing Congress and state governments to make it illegal to burn the American flag, according to a USA Today/Gallup Poll released last week. That's down from 63 percent in 1999. Both polls had a margin of error of 5 percent.

Groups lobbying for the anti- desecration amendment say they will "widely publicize" this week's Senate vote. "We had high hopes for three Republicans, since it was in their party's platform and the president supported it. We thought they would go along with the team," says Daniel Wheeler, the president of the Citizens Flag Alliance, a coalition headed by the American Legion.

Mr. Wheeler says he also hoped to pick up votes from Sen. Maria Cantwell (D) of Washington and Senator Conrad, "because there is such overwhelming support for it in their states." "We're going to be back in the 110th Congress. Meanwhile, we're going to publicize how this effort came out because millions of people care about it," he adds.