Flag Measure Fails by 1 Vote

By a single vote, the Senate on Tuesday rejected a constitutional amendment that would have given Congress the power to ban flag burning.

The tally in favor of the measure was 66 to 34, just shy of the 67 votes required for a two-thirds margin of approval. Such a majority would be necessary in the Senate and House before a constitutional amendment could be sent to the states for ratification.

The amendment’s advocates have been promoting it for years and had hoped that Republican gains in recent Senate elections would get them to the two-thirds threshold. But three GOP senators broke ranks and provided crucial votes that thwarted the measure.

“Old Glory lost today,” said Senate Majority Leader Bill Frist (R-Tenn.), one of the amendment’s prime backers. “At a time when our armed services are defending America’s freedom in the war on terror, it’s unfortunate that a minority of my colleagues blocked” the proposal.

Those who had fought the idea, however, expressed relief.

Sen. Russell D. Feingold (D-Wis.) quoted from letters of military veterans opposing the amendment as an infringement on free speech and said, “America is not simply a nation of symbols, it is a nation of principles.” Congress, he said, must “defend the right of all Americans to express their views about their government, however hateful or spiteful or disrespectful those views may be.”

Caroline Fredrickson, director of the ACLU’s Washington office, said: “The Senate came close to torching our Constitution, but luckily it came through unscathed.

“We applaud those brave senators who stood up for the 1st Amendment and rejected this damaging and needless amendment.”

President Bush expressed regret that the amendment failed. “By showing respect for our flag, we show reverence for the ideals that guide our nation,” he said in a statement. “We show appreciation for the men and women who have served in defense of those ideals.”

And its proponents vowed to continue their fight. The measure’s passage is “not a question of if, but when,” said Marty Justis, executive director of the Citizens Flag Alliance.

The group is a coalition of 147 organizations, including the American Legion, that says it has spent about $25 million on behalf of the amendment. The campaign was spurred by a 1989 Supreme Court decision that, in effect, ruled flag desecration is a protected form of political expression under the 1st Amendment.

The proposed amendment -- which would have been the 28th to the Constitution -- would explicitly allow Congress to write laws protecting the flag. Once a constitutional amendment clears Congress, it is sent to the states for ratification. It is added to the Constitution if approved by the legislatures of at least 38 states.

Tuesday’s vote capped two days of often-impassioned debate. Opponents claimed that the push for an amendment was driven more by politics than patriotism; proponents argued that the Supreme Court had usurped the will of the people.

Democrats backing the amendment included Sen. Dianne Feinstein of California. She spoke of picking up a newspaper in 1945 and seeing the now iconic photograph of Marines struggling to raise the American flag on Iwo Jima. “For me, at that time as a 12-year-old, and for the nation, the photo was a bolt of electricity that boosted morale,” she said. “Its symbolism of everything courageous about my country was etched into my mind for all time.”

Arguing that the amendment was “no slippery slope” toward an erosion of rights, Feinstein said that “protecting the flag will not prevent anyone from expressing his or her point of view.”

Feinstein was one of 14 Democrats who joined with 52 Republicans in voting for the amendment. Opposing it were 30 Democrats, including Barbara Boxer of California, one independent and three Republicans: Robert F. Bennett of Utah, Lincoln Chafee of Rhode Island and Mitch McConnell of Kentucky -- the chamber’s No. 2 GOP leader.

McConnell said he believed the Constitution should be rarely amended, and he expressed concerns that the flag-burning measure would impede freedom of speech.

“I think the 1st Amendment has served us well for over 200 years,” he said during a television interview Sunday. “I don’t think it needs to be altered.”

Several critics argued that the proposed amendment was a solution in search of a problem. Unlike the flag burning in the late 1960s and early 1970s in opposition to the Vietnam War, recent episodes of flag desecration have been more half-witted than high-minded -- even amendment supporters acknowledged -- the work of hooligans, adolescents and, in one case, a man intent on changing his oil.

The website for the Citizens Flag Alliance lists four incidents of flag desecration this year and about 50 in the last five years.

Still, Sen. Orrin G. Hatch (R-Utah), the amendment’s chief Senate sponsor, said: “Even one is too many.”

This is the third time the amendment has stalled in the Senate since 1995.

The House has passed it six times during that period, including last year on a 286-130 vote.

A recent CNN poll showed 56% of Americans favor an amendment that would pave the way for a ban on flag burning, and all 50 states have passed resolutions asking Congress for such a measure to ratify.

The amendment’s proponents said it was needed in part to check the Supreme Court, which in its 1989 ruling was split 5 to 4.

“Who gets the final word -- five justices on the Supreme Court or we the people?” asked Sen. John Cornyn (R-Texas)

“The flag is the symbol of our freedom. Why in the world would we refuse to protect it?” he asked.

Responding to arguments that the measure would trample on the 1st Amendment, Cornyn said, “This is not about speech, it’s about behavior.”

Foes of the amendment had accused Republicans of bringing the issue to the floor to help spur turnout by their core supporters in the November elections.

They noted that the debate on the flag burning amendment came less than three weeks after GOP leaders sought approval of an amendment to ban gay marriage.

That measure was easily derailed on a procedural vote amid criticisms from Democrats that the Senate should address more pressing concerns.

“Regrettably, the Senate leadership is returning again and again to using constitutional amendments as election year rallying cries to excite the passion of voters” Sen. Patrick J. Leahy (D-Vt.) said Tuesday.

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Times staff writer Heather Gehlert contributed to this report.