Orrin Hatch

Mr. HATCH

Mr. HATCH. I ask unanimous consent that the oversized posters we use this morning be permitted.

Mr. HATCH. Mr. President, during the past 2 days, we have heard several Senators who oppose the flag desecration amendment speak about the American flag as only a symbol or a piece of cloth that should not be confused with the real freedoms that we as Americans enjoy. They want to know why we get so worked up over a symbol, a mere piece of cloth. They want to know why we should care if someone urinates or defecates on the American flag. They ask: Aren't we strong enough as a nation to overlook such behavior? The U.S. flag is a lot more than a symbol and a lot more than a piece of cloth. Don't take my word for it. Listen to the story of how Mike Christian feels about the American flag. Mike Christian was one of Senator John McCain's cellmates at the ``Hanoi Hilton'' during the Vietnam war. He sewed an American flag on the inside of his shirt, and he often led his prisoners of war in the Pledge of Allegiance to the flag. One day, his captors found that flag and they beat him severely for possessing it. Despite the risk of even more life-threatening abuse, Mr. Christian sharpened a little piece of bamboo into a needle and painstakingly made another flag out of bits of cloth. His new flag, and the heroics it inspired, helped the other American prisoners survive their prolonged captivity under brutal conditions. If a makeshift flag can stir such emotions, it is illogical for the Senate to ignore the feelings of the overwhelming number of Americans who support flag protection. The flag is not just a piece of cloth or a symbol. It is the embodiment of our heritage, our liberties, and indeed our sovereignty as a nation. The American flag unites Americans because it embodies shared values and history. Gen. Norman Schwarzkopf, commander of the U.S. and allied forces during the gulf war, summed this up eloquently in his letter supporting the flag amendment. General Schwarzkopf wrote: We are a diverse people living in a complicated fragmented society. I believe we are imperiled by a growing cynicism by certain traditions that bind us, particularly service to our Nation. The flag remains the single preeminent connection to each other and to our country. Legally sanctioning flag desecration only serves to undermine this national unity and identity which must be preserved. That was General Schwarzkopf, one of the great heroes of our country. I have a few flags that will help illustrate what the flag means to our shared history. These flags tell part of the story of how this Nation we all call ours came to be so great. The flag with the circle of 13 stars was the first official flag of the United States. It was adopted by an act of Congress on June 14, 1777. According to legend, a group headed by George Washington came up with this design and commissioned seamstress Betsy Ross to execute it for presentation to Congress. It is a beautiful flag. Let me go to the next flag. This design is believed by many authorities to be the stars and stripes used by the American land troops during the Revolutionary War. A flag such as this was flown over the military stores at Bennington, VT, on August 16, 1777, when Gen. John Stark's militia led Americans to victory over a British raiding force. The original of that flag is preserved in the Bennington, VT, museum. The 15 stars and 15 stripes design was adopted prior to the War of 1812 after two States were added to the Union. Notice that it not only has 15 stars but also 15 stripes. This is the design that flew over Fort McHenry during a naval bombardment and inspired Francis Scott Key to compose what later became our national anthem. The actual flag that survived that night over Fort McHenry has been restored and now hangs in the Smithsonian. Today's flag has 50 stars and 13 stripes. Its design was born of the need for a more practical way of adding states than adding both a star and a stripe for each one. Congress approved this design--seven red and six white stripes, and a star for each state--on April 4, 1818. The 50- star flag has been in use since July 4, 1960. It's a flag like this that Mike Christian tried to fashion from his cell in the Hanoi Hilton. It's a flag like this that flies over the Capitol and our Federal buildings around the world. It is a flag like this that we pledge allegiance to every day when we open the Senate. Mr. President, do we mean what we say when we stand here each morning and pledge allegiance to the flag, or is it simply a hollow gesture? I fear that the significance of these flags, and their meaning to Americans, is being belittled by some who suggest the Senate's time is too important for the flag protection constitutional amendment. Listen to the American people. That is what I would like to say to the Members of the Senate. The vast majority of our citizens support amending the Constitution to protect our Nation's flag. To us, protecting the flag as the symbol of our national community--and utilizing the constitutional amendment process to do so--is no trivial matter. There are tens of thousands of veterans living on our country today who have put their lives on the line to defend our flag and the principles for which it stands. Those are the fortunate ones who were not required to make the ultimate sacrifice, as did my brother and my brother-in-law. For every one of those, there is someone who has traded the life of a loved one for a flag, folded at a funeral. Let's think about that trade--and about the people who made that sacrifice for us-- before deciding whether the flag is important enough to be addressed in the Senate. Would it really trivialize the Constitution, as some critics suggest, to pass an amendment that is supported by a vast majority of Americans? Is it somehow frivolous to employ the amendment process that our Founding Fathers wrote into Article V of the Constitution? Are we irresponsible if we simply restore the law as it existed for centuries prior to two recent Supreme Court decisions? The Constitution itself establishes the process for its own amendment. It says that the Constitution will be amended when two- thirds of Congress and three-fourths of the states want to do so. It does not say that this procedure is reserved for issues that some law professors think are important, or for an issue that would immediately crush the foundations of our great republic if left unaddressed. If ``government by the people'' means anything, it means that the people can decide the fundamental questions concerning the checks and balances in our government. It means the people can choose whether it is Congress or the Supreme Court that decides whether flag desecration is against the law. The people have said that they want Congress to decide it in the state legislatures. I urge my colleagues to think hard about what they consider ``important'' before they conclude that the Senate should ignore the people's desire to make decisions about the government which governs them. The flag amendment is the very essence of ``government by the people'' because it reflects the people's decision to give Congress a power that the Supreme Court has taken away. This question is very important. It involved the separation of power doctrine of our Constitution. I think we all have a pretty good idea of where the votes are on this amendment. The question is why my colleagues wish to delay a vote on this important measure. Perhaps they feel the need to turn a few more votes . . . I don't know. Whatever the reason, I urge all my colleagues, whether they support the flag amendment or not, to vote for cloture so we can then have an up and down vote on the merits of S.J. Res. 14. Finally, all this amendment does is give Congress the power to prohibit the physical desecration of the flag of the United States. I happen to think that is a wise thing to do. The vast majority of the American people think it is a wise thing to do. A vast majority of the House of Representatives think it is a wise thing to do. And a majority here--although, alas, probably not enough--do believe it is a wise thing to do as well. I reserve the remainder of my time.

Mr. HATCH. Mr. President, I ask unanimous consent that a number of letters and other statements pertaining to this amendment be printed in the Record at a cost of $1,300.00.

Mr. HATCH. Mr. President, I have been interested in these arguments because, if I recall it correctly, the distinguished Senator from Massachusetts has said that basically America is different from the long list of repressive regimes or dictatorial regimes--from Cuba, to North Korea, to Nazi Germany--because we do not have a law prohibiting flag desecration. But until 1989, we had State laws, in nearly all of the States, prohibiting flag desecration. If I recall it correctly, I believe the distinguished Senator from Massachusetts is saying we should not have a State law protecting the flag. If I recall it correctly, he voted for the flag statute to protect the flag back in 1989, and just yesterday voted for the McConnell amendment which would have done the same thing. Now look, there is a certain ``elitism'' around here in this country that literally is saying: We are above having to protect the flag of the United States. If somebody defecates on it or urinates on it, we do not want to give them any publicity for that. It is kind of the ``high society'' approach to things. If you want to be a member of the ``high society'' group, then don't do the ``unintellectual'' thing to protect our flag. That is what is getting me about this. We had, for 200 years, in 48 States, anti-flag-desecration statutes that protected the flag. These very people who are saying we cannot do this in a constitutional amendment, to give the Congress the power, the coequal right, to protect our flag, and ignore the Supreme Court, that is wrong in these 5-4 decisions, these two decisions--they said we cannot do this in this constitutional amendment--yet many of them voted for an anti-flag-desecration statute back in 1989, and yesterday many of them voted for the McConnell amendment. Until the Supreme Court struck down these 48 States' statutes in 1990, we had a Federal statute protecting the flag. I cannot believe the distinguished Senator from Massachusetts was arguing that in those days, when we had flag protection statutes in the States and the Federal Government, we were like Nazi Germany or Cuba or North Korea or Iran or Iraq. That is something that really bothers me. I look at those marines risking their lives in raising the flag on Iwo Jima. They revered that flag, just as we do today. Eighty percent of the people in this country revere this flag--in fact, I hope everybody does--and want this constitutional amendment. If we had any sense of proportion, we Members of Congress should want to overrule those two Supreme Court decisions. The only way we can do it is with a constitutional amendment. In that process, we prove we are coequal to the judicial branch of Government and will protect our flag in the process. We will be a better Nation for it. If we do it, we will create a debate on morals and values around this country in all 50 States that, sadly, is lacking at this particular time. We will, for once in our lives, stand up and say to our children, there are some values and some symbols--at least one symbol in our country that is extremely important to us, and that happens to be this flag of the United States of America. I think there are very sincere people on the other side of this issue. I do not mean to malign them. But I have to say, I get particularly upset when I hear these arguments, as I have heard this morning, when, in fact, they vote for statutes that would protect the flag, the very thing they are arguing against. It seems a little inconsistent to me. All we are saying is, give the Congress the power to do this, and then we will enact a statute for which they voted. Cloture Motion

Mr. HATCH. Mr. President, I ask unanimous consent we extend debate for 30 minutes so he can have 15.

Mr. HATCH

Mr. HATCH. Mr. President, I rise this morning to voice my deep concern over the developing situation in Miami involving this young boy, Elian Gonzalez. I do not rise today to make legal or policy arguments regarding the events that have transpired thus far, although I have strongly held views on those matters. Rather, I rise to implore--yes, implore--the Justice Department and the Clinton Administration to exercise restraint in how they proceed. For reasons I fail to understand, this Administration yesterday significantly ratcheted up the stakes in this matter, and unnecessarily turned this into a crisis situation by threatening to involuntarily and forcibly remove this boy from the place he calls home and to forcibly remove him from the family that has cared and sheltered him for four months. And why? The Justice Department had previously indicated a willingness to allow the Miami family to pursue its legal avenues in federal court. This family is appealing the recent decision of the district court. That is not news, and should hardly come as a surprise to the Department. In fact, it is my understanding that the family has agreed to the Justice Department's request to try and expedite the appeal. So why has the Administration manufactured this crisis and issued these threats and ultimatums? Why make these threats regarding this arbitrary, self-created and self-imposed deadline of Thursday morning at 9:00 a.m.? I know that my colleagues have different views on the matter of whether Elian Gonzalez should be returned to Cuba or allowed to stay in our country. But I do not stand before you today to debate that matter. Rather, I would hope we could all join in calling upon the Department of Justice and the Clinton Administration to calm down, exercise restraint, and stop acting to increase the tension of this delicate situation unnecessarily through arbitrary deadlines or threats of force. I fail to see how these threats serve any useful purpose. Hasn't this young boy been through enough? Why does this Administration need to forcibly remove him from his home while the appeal process continues to run? Has Elian become an enemy of the United States of America? If not, why is the Administration treating him like a dangerous drug lord or a mass murderer? Again, I implore this Justice Department and this Administration to calm down and exercise restraint. We need to find a way to diffuse this situation, not to further inflame it. And, we need to act in accordance with the values of our country--restraint, respect for law, and common sense. We should not be led to extremes merely to appease a foreign government. We will be fair and deliberate. But, we should not engage in ridiculous, overwrought measures. After all, this is not Cuba. This is the United States of America, and we have a young boy here. He ought to be treated with dignity and with respect by a government that does not act as a bully with no restraint whatsoever. I thank the Chair.

Mr. HATCH

Mr. HATCH. I object to further proceeding on the resolution at this time.

Mr. HATCH. Mr. President, I understand there is a joint resolution at the desk due for its second reading.

Mr. HATCH

Mr. HATCH. Mr. President, today the Senate will resume consideration of the pending flag desecration resolution for 30 minutes prior to a cloture vote on the resolution. Therefore, Senators can anticipate the cloture vote to occur at approximately 10 a.m. Following the vote, the Senate will be in a period of morning business until 12:30 p.m. with the time under the control of Senators Brownback, Coverdell, and Durbin. It is hoped an agreement regarding final passage of the flag resolution can be made so that the vote can occur during today's session. As a reminder, cloture on the motion to proceed to the gas tax legislation was filed on Tuesday, and that vote will occur on Thursday at a time to be determined. Also on Thursday, the Senate is expected to begin consideration of the loan guarantees legislation. I thank all Members for their attention.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations of the Governmental Affairs Committee be authorized to meet during the session of the Senate on Tuesday, March 28, 2000, at 9:30 a.m., for a hearing entitled ``Oversight of HCFA's Settlement Policies: Did HCFA Give Favored Providers Sweetheart Deals?''

Mr. HATCH

Mr. HATCH. Mr. President, I want to make remarks generally on the flag amendment. Frankly, I think it is a travesty on this constitutional amendment to bring up campaign finance reform as a constitutional amendment to this amendment. But be that as it may, any Senator has a right to do that. I hope my colleagues will vote down the Hollings amendment, as it should be voted down. That is a serious debate that has to take place, and it should not take place as a constitutional amendment. Having said that, let me comment about why we are here. The Senate began today's session with the Pledge of Allegiance to our American flag. Today, we resume debate over a proposal that will test whether the pledge we make--with our hands over our hearts--is one of consequence or just a hollow gesture. We resume debate over S.J. Res. 14, a constitutional amendment to permit Congress to enact legislation prohibiting the desecration of the American flag. Now all we are asking, since the Court has twice rejected congressional statutes, is to give Congress the power to protect our flag from physical desecration. It seems to me that is not much of a request. It should be a slam dunk. But, unfortunately, politics is being played with this amendment. Congress would not have to act on it if it didn't want to, but it would have the power to do so. It also involves the separation of powers doctrine. The Supreme Court, in its infinite wisdom, has indicated that flag burning, defecating on the flag, or urinating on the flag is a form of free speech. I don't see how anybody in his right mind can conclude that. There is no question that is offensive conduct and it ought to be stamped out. On the other hand, all we are doing is giving Congress the power to enact legislation that would prohibit physical desecration of the flag. Congress doesn't have to, if it doesn't want to; it can, if it wants to. When we enacted those prior statutes to protect the flag, they passed overwhelmingly. It was also under the guise that we were trying to protect the flag through statutory protection, which I of course pointed out very unfailingly in both cases was unconstitutional. Of course, the Supreme Court upheld what I said they would uphold. Symbols are important. The American flag represents, in a way that nothing else does, the common bond shared by the people of this nation, one of the most diverse in the world. It is our one overriding symbol of unity. We have no king; we won our independence from him over 200 years ago. We have no state religion. What we do have is the American flag. Whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans in peace and in war. That unity is symbolized by a unique emblem, the American flag. Its stars and stripes and rich colors are the visible embodiment of our Nation and its principles and values and ideals. The American flag has come to symbolize hope, opportunity, justice, and freedom--not just to the people of this Nation but to people all over the world. Failure to protect the flag would lessen the bond among us as Americans and weaken the symbolism of our sovereignty as a nation. This proposed amendment recognizes and ratifies James Madison's view--and the constitutional law that existed for centuries--that the American flag is an important and unique incident of our national sovereignty. As Americans, we display the flag in order to signify national ownership and protection. The Founding Fathers made clear that the flag reflects the existence and sovereignty of the United States, and that desecration of the flag was a matter of national--I repeat-- national concern that warranted government action. This same sovereignty interest does not exist for our national monuments or our other symbols. While they are important to us all, the flag is unique. It is flown over our ships. We carry it into battle. We salute it and pledge allegiance to it. We do these things because the flag is the unique symbol unity and sovereignty. The proposed amendment reads simply: ``The Congress shall have the power to prohibit the physical desecration of the flag of the United States.'' S.J. Res. 14 is not an amendment to ban flag desecration, but an amendment to allow Congress to make the decision on whether to prohibit it. It is not self-executing, so a statute defining the terms and penalties for the proscribed conduct will need to be enacted, should this amendment be approved by two-thirds of the Senate today, or whenever. While it would be preferable to enact a statute, and not take the rare and sober step of amendment the Constitution, our amendment is necessary because the Supreme Court has given us no choice in the matter. I understand there is some lack of knowledge in this body where people have not realized that for 200 years we have protected the flag and that 49 States have anti-flag-desecration language. But in two narrow 5-4 decisions, breaking from over 200 years of precedent--Texas v. Johnson and United States v. Eichman--the Court overturned prior State statutes prohibiting the desecration of the flag. Make no mistake about it: The United States Senate is the forum of last resort to ensure that our flag is protected. H.J. Res. 33--an identical measure--has already won the necessary two-thirds vote in the House of Representatives by a vote of 305 to 124, with overwhelming bipartisan support. In fact, nearly 50 percent of the Democrats in the House voted for the measure. In addition, the people, expressing themselves through 49 State legislatures, have expressed their readiness to ratify the measure by calling upon Congress to pass this constitutional amendment to protect the flag. Protecting the flag is not a partisan gesture, nor should it be. Especially at a time of election-year partisan rhetoric, this amendment to protect our flag is an opportunity for all Americans to come together as a country and honor the symbol of what we all are. This effort will not only reaffirm our allegiance to the flag, it will reestablish our national unity. The American people revere the flag of the United States as the unique symbol of our Nation and the freedom we enjoy as Americans. As Supreme Court Justice John Paul Stevens said in his dissent in Texas v. Johnson: [A] country's flag is a symbol of more than ``nationhood and national unity.'' It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. . . . So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of a nation that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.'' [491 U.S. at 437 (dissenting)] In the long process of bringing this amendment to the floor, we have gone more than half way to address the concerns of critics. I think it is time for opponents of the amendment to join with us in offering the protection of law to our beloved American flag. Justice John Paul Stevens, in his dissent in the Texas v. Johnson decision, said it best: The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for--and our history demonstrates that they are--it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. [491 U.S. at 439] I want to talk a little bit about the arguments that I have heard over the past several years, and again this week, from some of my colleagues who oppose this amendment. Opponents contend that preventing the physical desecration of the flag actually tramples on the sacred right of Americans to speak freely. Although I respect many people who have this view, I strongly disagree with it. I hope that, as I have come to understand their perspective, they too will be open to mine and, together, we will be able to achieve consensus on the most important issue of all--protecting and preserving the American flag. Restoring legal protection to the American flag would not infringe on free speech. If burning the flag were the only means of expressing dissatisfaction with the nation's policies, then I imagine that I, too, might oppose this amendment. But we live in a free and open society. Those who wish to express their political opinions--including any opinion about the flag--may do so in public, private, the media, newspaper editorials, peaceful demonstrations, and through their power to vote. Certainly, destroying property might be seen as a clever way of expressing one's dissatisfaction. But such action is conduct, not speech. Law can be, and are, enacted to prevent such actions, in large part because there are peaceful alternatives equally expressive. After all, right here in the United States Senate, we prohibit speeches or demonstrations of any kind in the public galleries, even the silent display of signs or banners. As a society, we can, and do, place limitations on both speech and conduct. Mutilating our Nation's great symbol of national unity is simply not necessary to express an opinion. Those individuals who have a message to the country should not confuse their right to speak with a supposed ``conduct right,'' which allows one to desecrate a symbol that embodies the ideals of a Nation that Americans have given their lives to protect. For this reason, I must reiterate strongly that the flag protection amendment does not effectively amend the first amendment. It merely reverses two erroneous decisions of the Supreme Court and restores to the people the right to choose what law, if any, should protect the American flag. I have heard some of my colleagues miss this point and talk about how we cannot amend the Bill of Rights or infringe on free speech, and I was struck by how many of them voted for the flag protection statute in 1989. Think about that. They cannot have it both ways. How can they argue that a statute that bans flag burning does not infringe on free speech, and yet say that an amendment that authorizes Congress to enact such a statute banning flag burning does infringe on free speech? Moreover, the argument that a statute will suffice is an illusion. We have been down this road before, and it is an absolute dead end, having been rejected by the Supreme Court less than 30 days after oral argument, in a decision of fewer than 8 pages. They will do the same to any other statute of general applicability to the flag. A constitutional amendment is necessary because the Supreme Court has given us no choice in this matter. We all understand the game that is being played. We have people who changed their vote at the last minute to prevent the flag amendment from passing, as they did on the balanced budget amendment. The same people who voted for the statute are claiming their free speech rights would be violated by this amendment, but I guess not by the statute that allows them to ban desecration of the flag--a statute that I think they all know would be automatically held unconstitutional by the Supreme Court. It is a game. It is time for people to stand up for this flag. Some of my colleagues argue that because the Supreme Court has spoken we can do little to override this newly minted, so-called ``constitutional right.'' In my view, this concedes far too much to the judiciary. No human institution, including the Supreme Court, is infallible. Suppose that the year is 1900 and we are debating the passage of an amendment to override the Plessy versus Ferguson decision. That was the decision in which the Supreme Court rules that separate-but-equal is equal, and that the Constitution requires only separate-but-equal public transportation and public education. The Plessy decisions was almost unanimous, 8-1 in contrast to the Johnson and Eichman decisions, which were 5-4. Would any of my colleagues be arguing that we could not pass an amendment to provide that no state may deny equal access to the same transportation, public education, and other public benefits because of race or color simply because the Court had spoken the final word? Would any one of my colleagues argue that the Plessy decision had to stand because an amendment might change the 14th amendment? Of course not. The suggestion by some that restoring Congress' power to protect the American flag from physical desecration tears at the fabric of our liberties is so overblown that it is difficult to take seriously. In fact, I think it is phony. These arguments ring particularly hollow because until 1989, 48 states and the federal government had flag protection laws. Was there a tear in the fabric of our liberties then? Of course not. It goes without saying that among the most precious rights we enjoy as Americans is the right to govern ourselves. It was to gain this right that our ancestors fought and died at Concord and Bunker Hill, Saratoga, Trenton, and Yorktown. And it was to preserve that right that our fathers, brothers, and sons bravely gave their lives at New Orleans, Flanders, the Bulge, and Mt. Suribachi. The Constitution exists for no other purpose than to vindicate this right of self- government by the people. The Framers of the Constitution did not expect the people to meekly surrender their right to self-government, or their judgment on constitutional issues, just because the Supreme Court decides a case a particular way. Nor, when they gave Congress a role in the amendment process, did the Framers expect us to surrender our judgment on constitutional issues just because another, equal and co-ordinate branch of government, rules a particular way. The amendment process is the people's check on the Supreme Court. If it were not for the right of the people to amendment the Constitution, set out in Article 5, we would not even have a Bill of Rights in the first place. It was the people through their elected representatives--not the courts--who enshrined the freedom of speech in the Constitution. The Framers did not expect the Constitution to be routinely amended, and it has not been. The amendment process is difficult and exceptional. But it should not be viewed as an unworthy or unrighteous process either. The amendment process exists to vindicate the most precious right of the people to determine under what laws they will be governed. It is there to be used when the overwhelming majority of voters decide that they should make a decision rather than the Supreme Court. In Texas versus Johnson and United States versus Eichman the Supreme Court decided for Americans that a statute singling out the flag for special protection is based on the communicative value of the flag and therefore violates the first amendment. The Court decided that what 48 states and the federal government had prohibited for decades was now wrong. Since the Johnson and Eichman decisions, several challenges have been brought against the state statutes prohibiting flag desecration. State courts considering these types of statutes have uniformly held these statutes unconstitutional. One recent case, Wisconsin versus Janssen, involved a defendant who confessed to, among other things, defecating on the United States flag. Relying on the Supreme Court's Johnson decision, the Wisconsin high court invalidated a state statute prohibiting flag desecration on the ground that the statute was overbroad and unconstitutional on its face. In reaching that decision, the court noted that it was deeply offended by Janssen's conduct, and stated that ``[t]o many, particularly those who have fought for our country, it is a slap in the face.'' The court further explained that ``[t]hough our disquieted emotions will eventually subside, the facts of this case will remain a glowing ember of frustration in our hearts and minds. That an individual or individuals might conceivably repeat such conduct in the future is a fact which we acknowledge only with deep regret.'' What was particularly distressing about this decision is that the court found the statute constitutionally invalid even though the state was trying to punish an individual whose vile and senseless act was devoid of any significant political message, as so many of them are. The court noted ``the clear intent of the legislature is to proscribe all speech or conduct which is grossly offensive and contemptuous of the United States flag. Therefore, any version of the current statute would violate fundamental principles of first amendment law both in explicit wording and intent.'' Under prevailing Supreme Court precedent, then, the Court found that the proscribed conducted was protected ``speech.'' The Wisconsin decision, like those before it, demonstrates that, because of the narrow Johnson and Eichman decisions of the U.S. Supreme Court, any statute, state or federal, that seeks to prohibit flag desecration will be struck down. The Wisconsin Supreme Court, however, noted that all was not lost. The Court opined that ``[i]f it is the will of the people in the country to amend the United States Constitution in order to protect our nation's symbol, it must be done through normal political channels,'' and noted that the Wisconsin legislature recently adopted a resolution urging Congress to amend the Constitution to prohibit flag desecration. Clearly, with the House having already sent us the amendment on a strong, bipartisan vote, the ball is firmly here in the Senate's court. If we are serious about protecting the American flag, it is up to this body, at this time, to take action and to send this proposed amendment to the people of the United States. After all the legal talk and hand-wringing on both sides of this issue, what is comes down to is this: Will the Senate of the United States confuse liberty with license? Will the Senate of the United States deprive the people of the United States the right to decide whether they wish to protect their beloved national symbol, Old Glory? Forty-nine state legislatures have called for a flag protection amendment. By an overwhelming and bipartisan vote, the House of Representatives has passed the amendment. Now it is up to the Senate to do its job. Let us join together and send this amendment to the people. This resolution should be adopted, and the flag amendment sent to the states for their approval. Our fellow Americans overwhelmingly want to see us take action that really protects the flag and this, my friends, can do just that. I urge you to support the flag protection amendment and, by doing so, preserve the integrity and symbolic value of the American flag. It is now time for the Senate to heed the will of the people by voting for the flag protection constitutional amendment. Doing so will advance our common morality and the system of ordered liberty encompassed in our history, laws and traditions. We must restore the Constitution and the first amendment, send the flag amendment to the States that have requested it with near unanimity, and return to the American people the right to protect the United States flag. It is time to let the people decide. Again, I come back do that major point. All this amendment does is recognize that there are three separated powers in this country--the legislative, executive, and judicial branches of Government. When the judicial branch says we can no longer enact by statute the protection of the flag and suggests we have to pass a constitutional amendment if we want to protect the flag, then this amendment gives the Congress the right to be coequal with the other branches of Government. It gives us the right to protect the flag through a constitutional amendment and it gives us the right, if we so choose, to pass legislation similar to the legislation that a vast majority of Members of this body voted for back in 1989. Last but not least, in this day and age, many of our young people don't even have a clue to what happened back between 1941 and 1945. They don't even realize what happened in the Second World War. Sending this amendment to the 50 States would create a debate on values, which is necessary in this country, like we have never had before. It will be up to the people to decide. That is all we are asking. Let the people, through their State legislatures, decide whether or not we should protect the flag. That is not a bad request. It is something that needs to be done. Above all, it restores to the Congress the coequal power as a coequal branch of Government that is gone because of the very narrow set of 4-5 Supreme Court decisions. I reserve the remainder of my time.

Mr. HATCH. How much time does our side have?

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, I ask unanimous consent that I control the time on our side.

Mr. HATCH. I yield 5 minutes to the distinguished Senator from Wyoming.

Mr. HATCH. Mr. President, there is a right way and a wrong way of reforming our system of campaign finance. The Hollings proposal to amend our Constitution is simply the wrong way. It would, in effect, amend the first amendment to our Constitution to allow any ``reasonable'' restrictions to be placed on independent campaign expenditures and contributions. Why does he propose that we amend the first amendment? Because the Supreme Court of the United States has held that restrictions on independent expenditures violate the first amendment's free speech protection and that such restrictions could only be justified upon a showing of a compelling--as opposed to any reasonable--reason. The Hollings amendment would gut the free speech protections of the first amendment. It would allow the curtailing of independent campaign expenditures that could overcome the natural advantage that incumbents have. It would, thus, limit free speech and virtually guarantee that incumbents be reelected. Thus, the Hollings amendment could change the very nature of our constitutional democratic form of government by establishing what the Founders of the Republic feared most: a permanent elite or ruling oligarchy. Let me explain. The very purpose of the first amendment's free speech clause is to ensure that the people's elected officials effectively and genuinely represent the public. For elections to be a real check on government, free speech must be guaranteed--both to educate the public about the issues, and to allow differing view points to compete in what Oliver Wendell Holmes called ``the market place of ideas.'' Simply put, without free speech, government cannot be predicated upon, what Thomas Jefferson termed, ``the consent of the governed.'' Without free speech, there can be no government based on consent because consent can never be informed. The Supreme Court of the United States recognized this fundamental principle of democracy in the 1976 case of Buckley v. Valeo, 424 U.S. 1 (1976). The Court in Buckley recognized that free speech is meaningless unless it is effective. In the words of Justice White, ``money talks.'' Unless you can get your ideas into the public domain, all the homilies and hosannas to freedom of speech are just plain talk. Thus, the Supreme Court held that campaign contributions and expenditures are speech--or intrinsically related to speech--and that the regulating of such funds must be restrained by the prohibitions of the first amendment. The Buckley Court made a distinction between campaign contributions and campaign expenditures. The Court found that free speech interests in campaign contributions are marginal at best because they convey only a generalized expression of support. But independent expenditures are another matter. These are given higher first amendment protection because they are direct expressions of speech. The Court reaffirmed the principles it outlined in Buckley just a few months ago in Nixon v. Shrink Missouri Gov't. Consequently, because contributions are tangential to free speech, Congress has a sizeable latitude to regulate them in order to prevent fraud and corruption. But not so with independent expenditures. In the words of the Court: A restriction on the amount of money a person or group can spend necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating in today's mass society requires the expenditure of money. [424 U.S. at 19-20]. The Hollings amendment's allowance of restrictions on expenditures by Congress and state legislatures would impose direct and substantial restraints on the quantity of political speech. It would permit placing drastic limitations on both individuals and groups from spending money to disseminate their own ideas as to which candidate should be supported and what cause is just. The Supreme Court noted that such restrictions on expenditures, even if ``neutral as to the ideas expressed, limit political expression at the core of our electoral process and of the First Amendment freedoms.'' [Buckley at 39]. Indeed, even candidates under the Hollings proposal could be restricted in engaging in protected first amendment expression. Justice Brandeis observed, in Whitney v. California, 274 U.S. 357, 375 (1927), that in our republic, ``public discussion is a political duty,'' and that duty will be circumscribed where a candidate is prevented from spending his or her own money to spread the electoral message. That a candidate has a first amendment right to engage in public issues and advocate particular positions was considered by the Buckley Court to be of: . . . particular importance . . . candidates [must] have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. 424 U.S. at 53. Campaign finance reform should not be at the expense of free speech. This amendment--in trying to reduce the costs of political campaigns-- could cost us so much more: our heritage of political liberty. Without free speech our Republic would become a tyranny. Even the liberal American Civil Liberties Union opposes Hollings-type approaches to campaign reform and called such approaches a ``recipe for repression.'' The simple truth is that there are just too many on the other side of the aisle that believe that the first amendment is inconsistent with campaign finance reform. That is why they are pushing the Hollings proposal. To quote House Minority Leader Richard Gephardt, ``[w]hat we have is two important values in direct conflict: freedom of speech and our desire for a healthy campaign in a healthy democracy. You can't have both.'' I strongly disagree. You can have both. We have to have both. For without both, the very idea of representative democracy is imperiled. That is why I oppose the Hollings amendment. I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, I ask unanimous consent the debate on the Judiciary Committee amendment to the Constitution be moved to 11:45 to accommodate the distinguished Senator, with the time divided equally.

Mr. HATCH

Mr. HATCH. Reserving the right to object, as I understand it, the Senate has to go out at about 5:30.

Mr. HATCH. Mr. President, reserving the right to object.

Mr. HATCH. Mr. President, at least the Senator is consistent because he opposes both the McConnell amendment and the flag amendment. Having made that point, of the 36 Senators who voted for the McConnell ``statutory fix,'' shall we call the proposal, 30 are opponents of the flag-protection amendment. These 30 Senators apparently believe that some flag desecration should be prohibited. Voting for McConnell makes their first amendment arguments a mockery. At least the distinguished Senator from Massachusetts is consistent, because the McConnell amendment says, one, that flag desecration on Federal land with a stolen flag should be prohibited; two, damaging a flag belonging to the United States will be prohibited; or three, desecrating a flag intending to promote violence should be prohibited. It reminds me of 1989 when a high percentage of Senators in this body, who claim to be against the constitutional amendment to prohibit desecration of our beloved flag, voted for the statutory anti-flag- desecration amendment. If first amendment rights hold with regard to this constitutional amendment, that it would violate first amendment rights, then why wouldn't it have violated first amendment rights with regard to any statute that would prohibit desecration? I think anyone can see the game that is going on; that is, that some of the folks wouldn't vote to protect the flag no matter what happens because they know the flag desecration amendment or a statutory amendment is not going to protect our flag because it will be stricken down as unconstitutional. I predicted it in both cases where the Supreme Court has stricken it down. If one agrees that flag desecration is wrong, why limit it to these circumstances provided in the McConnell amendment? Why should it be legal to burn a flag in front of a crowd who loves flag desecration, or on television where people are at a safe distance, yet make it illegal to burn a flag in front of people who would be upset by that act? Why make it illegal to burn a Post Office flag but not a flag belonging to a hospital across the street? Why make it illegal for a lone camper to burn a flag in a campfire at a Yellowstone park, when it is legal to burn a flag before hundreds of children at a public school under current law? To anyone interested in protecting the flag, these distinctions make no sense. That is what is amazing to me. There is such inconsistency. I personally believe that it is the elitist position that calls the 80 percent of Americans who believe we should sustain the dignity of our flag, of our national symbol, that we are somehow Neanderthals, the 80 percent of the people in this country who want to protect our national symbol from acts of physical desecration. The funny thing about it, this amendment does not even do that. All this amendment does is restore the power to the Congress of the United States to be able to pass a statute if the Congress so chooses, something that we have to do by constitutional amendment if we want to be coequal with the judicial branch of Government. Opponents of the constitutional amendment argue that this would be an unprecedented infringement on the freedom of speech, which does not satisfy James Madison's counsel that amendments of the Constitution should be limited to ``certain great and extraordinary circumstances.'' Setting aside the fact that flag desecration is conduct, not speech, and that our freedom of speech is not absolute, these critics never fully address the fact that our Founding Fathers, James Madison in particular, saw protection of the flag as falling outside the scope of the first amendment and was more a matter of protecting national sovereignty. The original intent of the Nation's founders indicates the importance of protecting the flag as an symbol of American sovereignty. Madison and Jefferson consistently emphasized the legal significance of infractions on the physical integrity of the flag. For example, one of Madison's earliest pronouncements concerned an incident in October 1800 when an Algerian ship forced a U.S. man of war--the George Washington--to haul down its flag and replace it with the flag from Algiers. As Secretary of State under Thomas Jefferson, Madison pronounced such a situation as a matter of international law, a dire invasion of sovereignty which ``on a fit occasion'' might be ``revised.'' Madison continued his defense of the integrity of the flag when he pronounced an active flag defacement in the streets of an American city to be a violation of law. On June 22, 1807, when a British ship fired upon and ordered the lowering of an American frigate's flag, Madison told the British Ambassador ``that the attack . . . was a detached, flagrant insult to the flag and sovereignty of the United States.'' Madison believed that ``the indignity offered to the sovereignty and flag of the Nation demands. . .an honorable reparation.'' Madison's statements suggests his belief that protecting the physical integrity of the flag ensured the protections of the Nation's sovereignty. This is the author of the Constitution. We have these people inconsistently voting for statutes--twice in the last 11 years--that are unconstitutional, that would, I suppose if you take their arguments on the floor, denigrate the first amendment to the Constitution. If this constitutional amendment is denigrating it, why isn't the statute they voted for denigrating it as well? Madison did not conclude, as some defenders of the right to deface the flag contend, that the first amendment protected the rights of Americans to tear down a flag or that defacing the flag was a form of expression protected by the first amendment. On the contrary. It would appear that Madison had an intimate familiarity with the significance of protecting the physical integrity of the flag, especially as such protection related to the first amendment, which he helped draft and move through the First Congress. He knew there had been no intent to withdraw the traditional physical protection from the flag. Madison and Jefferson intended for the Government to be able to protect the flag consistent with the Bill of Rights. This was based on their belief that obtaining sovereign treatment was distinct from an interest in protecting against the suppression of expression. Madison and Jefferson consistently demonstrated that they sought commerce, citizenship, and neutrality rights through the protection of the flag. They did not seek to suppress the expression of alternative ``ideas,'' ``messages,'' ``views,'' or ``meanings.'' Although it is commonly asserted that Congress has never sent an amendment to the States to amend the Bill of Rights, this assertion is absolutely false. Even if you assume this amendment would lead to a violation of first amendment rights, it is absolutely false to think the Congress has never sent an amendment to the States to amend the Bill of Rights. Yet the Bill of Rights has been amended in some form on several occasions. For example, the 13th amendment amended the 5th amendment as interpreted in Dred Scott v. Sanford, to provide that the former slaves were not property subject to the due process clause, but were free men and women. Further, the 14th amendment was interpreted in Bolling versus Sharpe, to have effectively amended the due process clause of the 5th amendment to apply equal protection principles to the Federal Government. Moreover, in Engel versus Vitale, the Supreme Court circumscribed the 1st amendment rights of American school children by holding that the establishment clause precluded prayer in the public schools. Each of these constitutional changes substantially modified the rights and correlative duties of affected parties from those originally envisioned by the Framers of the Bill of Rights. The change effected by the Engel versus Vitale decision did not expand rights, but restricted them by taking away the right of children to pray at school. Further, there have always been numerous limits on free speech. We limit libelous and defamatory speech. We limit speech that constitutes ``fighting words.'' We limit speech that consists of falsely shouting ``fire'' in a crowded theater. We limit speech that is obscene. We limit speech that jeopardizes national security. And each of these limits balances an important governmental interest in protecting against an individual's right to engage in radical or dangerous speech. Thus, the Bill of Rights has been amended numerous times and has consistently been interpreted to include limits on speech. The long legal tradition of accepting regulation of physically destructive conduct toward the flag is consistent with these limits that balance society's interest in promoting respect for the nation with an individual's interest in sending a particular message by means of desecrating our beloved flag. The proposed amendment would effect a much smaller change than the other amendments listed and a much narrower limit on speech than the other limits mentioned. The amendment would simply restore the traditional right of the people to protect the physical integrity of their flag, something that existed 200 years before the Supreme Court struck it down. Protestors would still be free to speak their opinions about the flag at a rally, write their opinions about the flag to their newspaper, and vote their opinions at the ballot box. Most of the American people, men and women, black, brown, and white, support the flag protection amendment and 49 State legislatures have asked for the flag protection amendment. Accordingly, I believe we should send the flag protection amendment to the States for ratification. The argument that we have never amended the Bill of Rights or limited speech is absurd; it is false, and, in any event, the flag protection amendment would change only the results of a few recent court decisions to restore the true meaning of the Bill of Rights as ratified by our forefathers. This proposed amendment recognizes and ratifies our Founding Fathers' view--and the constitutional law that existed for nearly 200 years-- that the American flag is an important and unique incident or symbol of our national sovereignty. As Americans, we display the flag in order to signify national ownership and protection. The Founding Fathers made clear that the flag, and its physical requirements, related to the existence and sovereignty of the United States and that desecration of the flag were matters of national concern that warranted government action. This same sovereignty interest does not exist for our national monuments or our other symbols. While they are important to us all, the flag is unique. It is flown over our ships and national buildings. We took the flag to, and planted it for eternity, on the Moon. We carry it into battle. We salute it and pledge allegiance to it. Men and women have died for it and have been tortured for their fidelity to it. Senator McCain, in appearing before our committee, told of one of the experiences he had when he was in the Hanoi prison with others of our men. He said there was a young man who literally could not afford shoes. He had no shoes until he was 13 years of age. He was raised in poverty. But when he joined the military, he stood out as a really fine human being, and ultimately he went to officer's candidate school. Flying over Vietnam, he was shot down. When he arrived in the Hanoi prison, if I recall it correctly, he took a bamboo needle and he knitted together little bits of cloth to make an American flag, and he put it inside his shirt. Every night, he would bring out that flag and put it on the wall, and they would all salute and pledge allegiance to it. It was one of the things that kept them from going insane. One day his captors found him with that flag and took him outside and beat him within an inch of his life. Of course, they took his flag from him. Then they tossed his broken and bleeding body inside the compound which had a concrete slab in the middle. Senator McCain may tell this story because he can tell it better than I can having been there. I think it is worthwhile to retell it. Senator McCain said they picked him up and cleaned him up as best they could in those very tragic circumstances. He was all black and blue with his eyes shut from having been beaten. They had incandescent light bulbs on all day long, every day, and all night long, every night. As they all went to sleep, suddenly Senator McCain looked up and here was this young military man sitting there with another bamboo needle getting little bits of cloth to make another American flag. To be honest with you, that flag meant an awful lot to those people who were under those very terrible circumstances. It means a lot to me. Opponents of this proposed constitutional amendment argue this would be an unprecedented infringement on the freedom of speech which does not satisfy James Madison's counsel that amendments to the Constitution should be limited to ``certain great and extraordinary circumstances.'' Setting aside the fact that flag desecration is conduct not speech and that our freedom of speech is not absolute, what these critics never fully address is the fact that our Founding Fathers, James Madison in particular, saw protection of the flag as falling outside the scope of the first amendment and was more a matter of protecting national sovereignty. The original intent of the Nation's founders indicates the importance of protecting the flag as an incident of American sovereignty. Madison and others did that. We took this flag, as I said, and planted it for eternity on the Moon. We carry it into battle. We salute it and pledge allegiance to it. Men and women have died for it and have been tortured for their fidelity to it. As Americans we recognize and believe that the flag is our unique symbol of unity and sovereignty. As Madison noted, the flag is a unique incident which, when desecrated, ``demands an honorable reparation.'' That was how we viewed it--as a people, as a nation--until 1989 when the Court handed down its 5-4 decision in the Johnson case. Are we really going to stand here on the floor of the Senate and pretend that the law never was as it was? Does anyone here believe that two narrow Supreme Court decisions should settle whether we as a nation should and can safeguard our symbol of sovereignty? There are opponents to S.J. Res. 14 who argue that our flag--this incident of sovereignty--is not important enough to amend the Constitution; that amending the Constitution requires a ``great and extraordinary occasion.'' Tell that to the young man in Vietnam. For reasons I have stated, the Supreme Court's decisions in the Johnson and Eichman cases--decisions which overturned centuries of law and practice--more than meets Senator Leahy's test. Senator Kerrey's test, and others. It certainly meets it more than the 27th amendment which dealt with pay raises for members of Congress or the 16th amendment which gave Congress the power to impose an income tax. I can understand why some in Congress would view the 16th amendment as one of Congress' finest moments, not that I ever have. In fact, my State of Utah was one of only three States to reject the 16th amendment. The flag amendment presents this Congress with an opportunity to do something great and extraordinary. It is anything but an abdication of responsibility. Indeed, one could argue that, failure to vote for this amendment is an abdication of our responsibility and that restoring the power of Congress the power to prohibit acts of desecration against our symbol of national sovereignty would be a great and extraordinary occasion.

Mr. HATCH. I have no objection.

Mr. HATCH. Reserving the right to object, is the Senator from Wisconsin just going to speak or is he intending to offer an amendment?

Mr. HATCH. Mr. President, I move to table and ask for the yeas and nays.