Senate Panel Prefers Law to Protect Flag

The Senate Judiciary Committee voted Thursday in favor of a proposed new law to prohibit desecration of the American flag and recommended that the full Senate reject a rival effort backed by the White House to protect the flag by amending the Constitution.

The Democratic-controlled committee voted 9 to 5 in favor of a statutory change proposed by its chairman, Sen. Joseph R. Biden Jr. (D-Del.). The measure would make flag burning a federal crime, punishable by maximum penalties of one year in prison and a $1,000 fine.

The panel also voted 8 to 6 to send the proposed constitutional amendment sought by President Bush to the full Senate with a negative recommendation.

Hot Political Issue

Lawmakers are sharply divided over the two approaches to prohibiting flag desecration, which became a hot political issue in the wake of a Supreme Court decision last summer overturning a Texas law that banned flag burning.

By prior agreement, the Senate committee was obliged to submit both flag-burning measures to the Senate floor, where they will be debated next month. The House already has passed a flag-burning bill, and Speaker Thomas S. Foley has promised to schedule a vote on a constitutional amendment later this year.

Proponents of a constitutional change argued that the Judiciary Committee’s negative recommendation would not seriously affect its support on the floor.

“We were not surprised by the unfavorable vote because the chairman (Biden) was against it,” said an aide to Sen. Orrin G. Hatch (R-Utah). “It will be on the Senate floor, where the proponents of a constitutional amendment will come out in force.”

Three Alternatives

The flag debate has split Congress three ways. One faction favors simple legislation to protect the flag, another backs the President’s call for a constitutional amendment, and a third contends that democracy is better served by taking no action at all.

The debate in the Judiciary Committee reflected those divergent views. Most Democrats argued against any attempt to tinker with the Constitution, while Republicans countered that the Supreme Court’s decision on the constitutionality of flag burning probably could not be overturned by a mere statute.

“A constitutional amendment is absolutely necessary to ensure with certainty the validity of any statute banning flag desecration,” said Hatch, adding that the Biden bill would be “unlikely to survive constitutional scrutiny.”

Sen. Edward M. Kennedy (D-Mass.) argued the minority view. No matter how objectionable flag burning may be to most people, Kennedy said, restricting any form of political dissent by statute or amendment would be a violation of the free speech principles enshrined in the Constitution.

“It is wrong to try to prevent desecration of the flag by desecrating the Constitution,” Kennedy said. “If freedom of expression means anything, it means tolerance not just for views we approve, but for views that we hate as well.”

While flag-protection legislation has strong bipartisan support in Congress, proponents of an amendment concede they probably do not have enough support to change the Constitution--a process that requires a two-thirds majority vote in the House and the Senate as well as ratification by three-fourths of the states. A statute, in contrast, would require only a simple majority in the House and Senate to pass.