Burn, baby, burn

Congress returns to the nation's business by reintroducing the divisive, perennial flag burning amendment -- but this time it just might pass the Senate.

Published March 3, 1999 8:02PM (EST)

This city is in the throes of a wicked hangover. After a year of sucking on the intoxicant of impeachment, everyone -- the House, the Senate, the White House, the media -- is rubbing the gunk out of his eyes, brewing a fresh pot of Starbucks colon-stirring Sumatra and doing his damnedest to avoid thinking about the humiliating year-long national bender.

You can see the sincere attempts at reconciliation almost everywhere, as this company town becomes, like our flawed president, a veritable communion of repentant sinners, what Dick Morris might refer to as a bunch of "Sunday Morning Bills." House Speaker Dennis Hastert has been waxing bipartisan, making like Mister Rogers almost since the day he got the job. Senate Majority Leader Trent Lott has been trying to get Hastert's cuddly vibes to rub off on him, and the two men even trod into the White House together on Feb. 23 to meet with the president to discuss where we all go from here.

Meanwhile, Republican fund-raising titan Sen. Mitch McConnell of Kentucky has announced a willingness to work with Sen. Christopher Dodd to "find a meeting of the minds" on campaign finance reform, according to a deftly planted piece in the Washington Post. And in his farewell address on Feb. 25, even Flynt-fragged almost-Speaker Bob Livingston instructed his colleagues that "Tolerance is a necessity. 'Politician' is not a dirty word. And compromise is the glue that renders democracy possible."

What the Hill needs now is love, sweet love.

Amid all this hand-holding, it came as a surprise to many around Congress -- and no doubt across the country -- that one of the first legislative horses out of the gate post-impeachment is the divisive, perennial but usually ill-fated proposal for a constitutional amendment prohibiting the burning of the American flag.

"They introduced it already?" one senior GOP aide asked incredulously, unaware that Rep. Randy "Duke" Cunningham, R-Calif., and John Murtha, D-Pa., not only had officially introduced a flag-burning amendment bill on Feb. 24, but had already secured more than 260 co-sponsors and, reportedly, at least 306 supporters in all. (It needs 290 votes -- a two-thirds majority -- to pass.) There is no way, the aide said, that congressional leadership wants to see the flag-burning amendment debated at least until some more-important, tangible work had been accomplished. Such as, say, passing a budget. Or restoring the public's faith that its government cares about issues of importance. Little things like that.

But they might not have much of a choice.

"The right wing is not happy," observes Rep. Barney Frank, D-Mass. "They are Salome without the head of John the Baptist. So the leadership is saying, 'Let's find some things we can give them that respond to their emotional demands' ... without alienating the rest of the country." Frank says he thinks the GOP's move is a bold miscalculation. "It's a mistake for them to make this one of their big issues," he says. "I think even people who, if asked, say they would support it would not want this to be a priority."

When asked if he's surprised that the Republicans in Congress would make such a dubious strategic decision, Frank expresses confusion at the question. "Of course not," he says. "That's what they are, that's what they do. Am I surprised that fire burns things? Or that rain makes things wet?"

Historically, the House has voted overwhelmingly in support of the flag-burning amendment -- often with the wink-wink knowledge that the more deliberative, statesmanlike Senate would either refuse to vote on the bill or would kill it. In June 1995, the House cranked out 312 votes in support of the amendment, only to see the Senate kill it a few months later. In June 1997, the House shepherded the bill to victory again, this time with 310 votes, only to have the Senate put off voting on it indefinitely. Last July, the Senate Judiciary Committee held some rather low-key hearings on the amendment, with such notable supporters as Tommy Lasorda and "Dukes of Hazard" star John Schneider marshaling the support of what are no doubt dozens of die-hard fans.

Voting to ban flag burning has always been an easy way for House members to look patriotic to their constituents, while secretly trusting the Senate to protect the Constitution -- which currently has only 27 amendments, mostly dealing with lofty issues like voting rights, freedom of speech and association, and protection from the excesses of government. (The most recent amendment to pass, ratified in May 1992, put off all congressional pay raises until the next session of Congress. The amendment before that lowered the voting age to 18.) Flag-burning supporters in Congress include "a healthy mix of [genuine believers] and those who say, 'Hey, they trot this out every year and it's a good vote for me,'" says the top GOP House aide. Frank says that "if this were voted on in a secret ballot it would not get" the 290 votes.

The House Judiciary Committee's Subcommittee on the Constitution has decided to make Cunningham and Murtha's bill its No. 1 priority for the 106th Congress, Frank reports. The House votes are already there, after all, supported not only by Republicans but a number of craven Democrats such as Al Wynn of Maryland, Jim McGovern of Massachusetts and New Jersey's Robert Menendez.

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But there's one glitch in the traditionally fail-safe plan to let the bill pass the House and die in the Senate: This year the Senate might actually have the votes. In 1995, the measure -- which requires at least 67 senators to pass -- went down with 63 in favor of the bill, 36 opposed. (Bob Packwood had just resigned and his seat had yet to be filled.) The numbers and players have since changed, and House members who held their noses and voted for the amendment in the past can no longer rely on the Senate to do the "right" thing and flush.

Amid last fall's Monicacophony, for instance, few outside the Senate Chamber noticed when, on Oct. 7, Trent Lott suddenly rose and out of nowhere attempted to push the flag-burning amendment toward a quickie vote. Amendment opponent Sen. Bob Kerrey, D-Neb. -- a Congressional Medal of Honor winner who lost a leg in Vietnam -- objected, and the matter was dropped for the time being.

Amendment supporters kept fairly quiet after Kerrey's objection because the 1998 Senate bill -- sponsored by Senators Orrin Hatch, R-Utah, and Max Cleland, D-Ga. -- clearly didn't have enough votes to pass. The GOP just wanted to force a pre-election stand on the issue, to shake the high wire under Democratic senators thought vulnerable: California's Barbara Boxer, Washington's Patty Murray, Wisconsin's Russ Feingold and Carol Moseley-Braun of Illinois. Marty Justice, executive director of the Indianapolis-based Citizens' Flag Alliance, or CFA, says that his organization dropped about $1 million on "issue" ads targeting amendment opponents last November, though he acknowledges that he "can't say that they did" have any impact on a race one way or another.

But this year, according to Justice, amendment supporters in the Senate already total 65. That's only two votes away, and the opening whistle has yet to blow. The narrowing of the already-close vote margin on the amendment came from Moseley-Braun's loss to Sen. Peter Fitzgerald and the replacements of retiring Sens. Dale Bumpers and John Glenn, who opposed the amendment, with Blanche Lincoln, D-Ark., and George Voinovich, R-Ohio, who support it. And now that the votes may be there, Judiciary Chairman Hatch -- reportedly under fire from hard-right elements in his party for cooperating with the Democrats during the impeachment hearings -- is preparing to shore up some of his conservative street cred. According to a spokesperson for the Senate Judiciary Committee, Hatch is currently signing up co-sponsors and hopes to introduce the bill some time in the next few weeks.

Hatch can rest easy in the knowledge that two more votes isn't that far to go, especially considering that CFA has yet to lock and load. Justice, a Vietnam veteran on loan to the CFA from the American Legion, says that his members have just begun targeting the 35 senators who have either voted or spoken against the amendment in the past with e-mails, faxes, letters, cards, personal visits, phone calls, "everything we can do." A spokesman for freshman Sen. John Edwards, D-N.C. -- an amendment opponent -- says that he hasn't heard much about the bill as of yet, though he knows that its supporters are "dedicated and well-organized."

Most leadership Republicans and Democrats would probably love it if they woke up and both CFA and its raison d'être had vanished. Republicans are eager for tranquillity and achievement; the impeachment hearings torpedoed their party's favorable ratings, and a debate on the flag-burning amendment will do little to heal the wounds or convince the nation that the GOP is all about the people's business. Democrats, for their part, are in no hurry to be on the wrong side of one hell of a loser of an issue. And if this controversial bill does, in fact, pass, it will go to the states for a vote in 2000 -- a rogue and unpredictable element added to an already combustible and high-stakes political landscape.

But the single-issue CFA has spent more than $13 million on this fight ever since the Supreme Court upheld the constitutionality of flag burning in 1989, and neither the organization nor its resolve are getting any weaker. "CFA is learning from its past mistakes," says a Hill activist who has worked hard to defeat the amendment in the past.

Oh, the drama! Will pathetically vulnerable Sen. Chuck Robb, D-Va., reverse his anti-amendment position in the face of a tough challenge from his likely opponent for reelection in 2000, the unfailingly popular former Gov. George Allen? If CFA is able to get Robb or another Democrat to shake, will past GOP opponents of the amendment -- like Kentucky's McConnell or Utah's Robert Bennett -- be willing to stand as the one obstacle between war veterans and the flag they so love? And if McConnell or Bennett come through for the Grand Old Party, will coldly calculating, amendment-supporting Democrats like California's Dianne Feinstein waver? The only safe bet is that such a debate, probably slated for Flag Day, June 14, will get ugly, and fast, and at a time when few on the Hill are up for such a fight.

None of which, obviously, is going to help improve the perception of Congress as ground zero for Sound and Fury Signifying Nothing. One of the CFA's strongest arguments, after all, is that an overwhelming majority of Americans -- up to 80 percent, if you believe polls -- support the 17-word amendment to the Constitution. "But the Republicans have just spent the last year ignoring the public, and making a point of doing so," Frank says. "Usually, there's a three-month moratorium on blatant hypocrisy."

By Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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