By Bob Cusack - 09/20/05 12:00 AM EDT
The Republican-led Senate is unlikely to vote on a flag-burning amendment this fall, but the measure will almost certainly hit the floor months before next year’s elections.
Republicans will use the proposed amendment to the Constitution as political ammunition in 2006. Several targeted Democrats in the upper chamber oppose changing the Constitution to prohibit flag burning, including Sens. Jeff Bingaman (N.M.), Maria Cantwell (Wash.), Kent Conrad (N.D.) and Robert Byrd (W.Va.).
The fate of a pending flag-burning amendment lies in the hands of a few senators. Because Sen. Orrin Hatch’s (R-Utah) amendment would alter the Constitution, it needs 67 votes, two-thirds of the Senate, to pass.
Including Hatch, the amendment has 58 co-sponsors. Based on previous votes, the measure has the likely support of 63 senators — if senators vote the way they have previously.
It is unclear how Sens. Tom Carper (D-Del.) and Herb Kohl (D-Wis.) would vote on the Hatch amendment. As a member of the House, Carper voted for a Hatch-like measure, while Kohl has voted against Hatch’s amendment previously but is undecided on how he will vote in this Congress.
Regardless of how these senators vote, it appears that the flag-burning amendment is one or two votes shy of reaching 67.
Democratic senators who are not co-sponsors of the measure but have indicated support for it include Minority Leader Harry Reid (Nev.) and Sens. Ben Nelson (Neb.). Bill Nelson (Fla.) and Jay Rockefeller (W.Va.).
Sen. Robert Bennett (R-Utah) has introduced legislation — not a constitutional amendment — that seeks to provide protection for the flag. Sens. Byrd, Conrad and Byron Dorgan (D-N.D.) are co-sponsors of the legislation.
Others who have expressed support for this approach in lieu of the Hatch resolution are Sens. Cantwell, Mark Pryor (D-Ark.) and Hillary Rodham Clinton (D-N.Y.).
It is “not likely,” Hatch spokesman Adam Elggren said, that Hatch would seek a compromise with Bennett on his flag amendment. “They disagree on the amendment. They agree to disagree.”
While the top Senate Democrat backs Hatch’s amendment, Assistant Majority Leader Mitch McConnell (R-Ky.) opposes it because of First Amendment issues. McConnell is the overwhelming favorite to take over as the top Senate Republican in the 110th Congress.
All five Democratic senators who are said to be considering a presidential run in 2008 — Evan Bayh (Ind.), Joseph Biden (Del.), Clinton, Russ Feingold (Wis.) and John Kerry (Mass.) — oppose Hatch’s amendment.
The House earlier this year approved a flag-burning amendment by a wide margin. If the Senate cleared the measure, it would then have to be ratified by 38 states within seven years.
Some on Capitol Hill expected the Senate to vote on the Hatch resolution after the House’s vote, but Senate sources say that with the chamber’s busy fall schedule, a Senate roll call will probably be pushed back into next year.
The National Republican Senatorial Committee has repeatedly seized on the flag-burning issue and this year has zeroed in on Byrd, running ads on his vote against a constitutional amendment. Byrd fired back, claiming the ad was misleading.
Democrats say that Republicans are just interested in playing politics with the flag, noting that votes on the amendment usually are brought up in election years.
In 1995 and 2000, Hatch introduced similar amendments, which were defeated 63-37 and 63-36, respectively. In 2000, 12 Democrats voted for it.
Sen. Debbie Stabenow (D-Mich.), who faces a potentially difficult reelection campaign next year, plans to vote for Hatch’s measure.
The Supreme Court struck down the Flag Protection Act in 1990, ruling in defense of the First Amendment that burning a flag is free speech.