In less than an hour, the Senate is scheduled to start debate on the weakest culture-war fight of them all: a [tag]constitutional amendment[/tag] to [tag]ban[/tag] [tag]flag[/tag] “[tag]desecration[/tag].” At this point, the measure has 66 supporters in the Senate. If it gets a 67th, the [tag]amendment[/tag] will go to the states where it almost certainly will be ratified.
I’ve done a few dozen posts on the subject during the 109th Congress, starting 17 months ago in which I predicted that this was something to worry about. Alas, I was right about this one.
I’m going to assume that you already know the various reasons this amendment has no business being written into constitutional stone, but instead take a look at the political reality. Is this thing going to pass?
Of the 55 Republicans in the Senate, three are on record opposing the amendment: Robert Bennett (Utah), Lincoln Chafee (R-R.I.), and Mitch McConnell (R-Ken.). At a minimum, these three should make it a little tougher for leading proponents of the measure to blast every opponent as some kind of anti-American traitor.
Of the 45 Dems in the Senate (44 plus Jeffords), 14 have expressed their support: Sens. Max Baucus (D-Mont.), Evan Bayh (D-Ind.), Mark Dayton (D-Minn.), Dianne Feinstein (D-Calif.), Tim Johnson (D-S.D.), Mary Landrieu (D-La.), Blanche Lincoln (D-Ark.), Ben Nelson (D-Neb.), Bill Nelson (D-Fla.), Robert Menendez (D-N.J.), Harry Reid (D-Nev.), Jay Rockefeller (D-W.Va.), Ken Salazar (D-Colo.), and Debbie Stabenow (D-Mich.).
As The Note reported today, Sen. Tom Carper (D-Del.) is apparently “on the fence,” but if he falls on the wrong side, he’ll bring the total to 67. But, that includes Jay Rockefeller, who is scheduled to return to work this week after spending several months recovering from back surgery. If Rockefeller doesn’t make it back in time, his absence might still leave proponents a vote shy, even if Carper joins the majority.
The real angle to watch is who, if anyone, might switch to a “no” vote if it appeared that this scheme was actually going to pass.
Most of the 14 Dems who have offered their support are either a) among the less-liberal members of the caucus; b) up for re-election this year; or c) from a “red” state where this might be used against them.
There’s one exception to the rule: Minnesota’s Mark Dayton, who is retiring at the end of the year. Dayton is among the 66 supporters of the measure, but given his departure, and his stated desire not to seek public office again, he need not fear political consequences — Dayton can do the right thing, leave the Constitution in tact, and switch sides.
Dayton recently expressed some frustration with his one term in office, telling reporters that he wishes he had generated more of an impact during his tenure. By changing his mind on this one issue, Dayton can be a hero and block the first-ever constitutional change to the Bill of Rights. I sincerely doubt Dayton will want to look back at his only term and say, “The most important constitutional vote that I cast was one that weakened the First Amendment.” If you live in Minnesota, it might be worth taking a moment to give his office a call to offer some words of encouragement.
And there’s one other angle to this to remember: there’s an alternative measure available. Sens. Hillary Clinton (D-N.Y.) and Bob Bennett (R-Utah), both of whom oppose the constitutional amendment, have crafted federal legislation that would criminalize certain cases of [tag]flag desecration[/tag].
The Flag Protection Act (S. 1370), introduced on July 1, would make it a crime to damage someone else’s flag — including those owned by the federal government — or to damage a flag in a way that promotes violence. The Republican senator from Utah said he wanted to make it clear that he doesn’t support flag-burning, but he does support the constitutional rights of expression symbolized by the United States flag.
“My objection to a constitutional amendment should not be construed as demonstrating indifference to the issue of reverence for the flag,” he said.
Senators who want to do the right thing but are afraid of the politics can vote against the amendment but for the “Flag Protection Act” alternative, which would offer some cover to Dems in tough re-election fights.
In the end, I’m cautiously optimistic that cooler heads will prevail — as they always have — and this solution to a problem that doesn’t exist will be defeated once again. That said, we’ve never been closer to undermining the First Amendment as we are this week.