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Flag Burning

If you did not hear, Senators Dianne Feinstein (D-CA) and Orrin Hatch (R-UT) recently introduced legislation to amend the Constitution to prohibit flag burning. The issue is nothing new. Almost every session of Congress, one of the houses of Congress, if not both, submit such legislation. This page offers analysis of the current climate concerning flag burning and the chances such legislation has of passing the House of Representatives and the Senate.

Explanation of the Issue

The issue of flag burning and free speech is a complicated one. The current legislation seeks to amend the US Constitution to make flag burning, as a form of political speech, illegal. Multiple times during the Clinton presidency the Congress attempted to pass such an amendment. It has passed the US House on every attempt since 1995, but has failed to garner the necessary 2/3 majority for an amendment to the Constitution in the Senate.

The last vote on flag burning in the US Senate was in March of 2000, before the Bush Presidency, before the Democratic control of the Senate from May 2001-January 2003 and before September 11th.

In 1989, the Supreme Court ruled in a 5-4 decision that flag burning as a form of political expression was constitutional. The ruling was striking because of the make-up of the majority and minority justices. Liberal justices like John Paul Stevens upheld the Texas law criminalizing flag burning but conservative justices like Antonin Scalia struck down the ban as an infringement on free speech.

Flag Burning Politics

Flag burning is an interesting political issue because of the political alliances it forms. It splits the traditional party-line voting of the Republican and Democratic parties and exposes the ideological factions within each party.

Republicans tend to be seen as the party most in favor of a constitutional amendment, but the so-called "libertarians" of the Republican party, championing no governmental interference in things like tax-collecting and free speech tend to view flag burning as an issue the government should not be involved in. Senators like Mitch McConnell (R-KY), the lead opponent of campaign finance reform because of its free speech issues, opposed the constitutional amendment in the Senate's 2000 vote on the issue.

Democrats are typically viewed as the leading proponents of free speech and thus, opponents of the ban on flag burning. The issue of flag burning splits the Democrats more than the Republicans, however. Conservative Democrats from southern states and and conservative districts must please a very conservative and patriotic voter base. Additionally, many Democrats feel that the flag represents their strong free speech views and thus is above the traditional modes of expression. Of the 63 senators who voted for the amendment in 2000, 12 were Democrats.

How the Senate Voted in 2000
..................... For the Amendment Against the Amendment Total
Republicans51455
Democrats123345
Total6337100


The Politics of September 11th and Patriotism

The last vote on a flag burning amendment was on March 29, 2000, 18 months before the September 11th terrorist attacks. The events of September 11th have resulted in numerous political changes, such as the creation of the Department of Homeland Security, anti-terrorism legislation like The Patriot Act, and increased defense funding.

Most agree that President Bush's soaring popularity in many key states led to his midterm election victories. Much of this popularity was due to his handling of the war on terrorism. Many congresspersons are afraid to do anything seen as anti-American or unpatriotic. Many Democrats especially from conservative states must align themselves with President Bush on many issues. Many Democrats lost their reelection fights in 2002 as Bush's popularity carried Republicans to victory. Max Cleland lost in Georgia and Norm Coleman beat Walter Mondale in Minnesota. Mary Landrieu (D-LA) was able to fight off a tough contender in Suzie Terrell. Lindsey Graham held onto Strom Thurmond's seat in South Carolina, and John Cornyn replaced Phil Gramm in Texas to keep Republicans in control in those states.

Senators who voted against a flag burning Amendment in 2000 such as John Edwards (D-NC) could complicate their reelection chances to the Senate if they are seen as unpatriotic by voting against the amendment. Edwards' case is unique because he is seeking the Democratic nomination for President in 2004. Senators running for President who voted against the Amendment in 2000, such as John Kerry (D-Massachusetts) and Joe Lieberman (D-Connecticut) might chnge their vote this time around, not because their Senate seats are in jeopardy, but because they want to be seen as pro-American against a popular pro-American President.

How Will the Next Vote Result?

Those in favor of an amendment banning flag burning need 67 votes to acheieve the 2/3 majority necessary for approval. Since the 2000 vote, 20 Senators have left, throwing 20 new faces into the debate and increasing speculation about how they will vote on the issue.

Of the 20 senators gone from the 2000 class, 14 voted for the amendment while six voted against it. The 14 pro-amendment senators consisted of 13 Republicans and one Democrat while the 6 anti-amendment senators consisted exclusively of Democrats. The 14 pro-amendment senators were replaced by 7 Repubicans and 7 Democrats while the 6 Democrats opposed to the amendment were replaced with three from each party. Without those 20 senators, the vote today (based on the remaining senators' 2000 votes) would be 49-31. This means that of the 20 new senators, the pro-amendment side would need to gain 18 of the 20. As long as those opposed to the amendment can capture at least 34 votes, that will keep the other side at 66 votes or below, preventing the necessary 2/3 majority for passage.

So how do we determine how the new 20 will vote? Well only 3 of the 20 have ever voted on the issue before, because they are former US Representatives. The three, Saxby Chambliss (R-GA), Lindsey Graham (R-SC) and John Sununu (R-NH), all voted for the constitutional amendment when they were in the House in 2001. That puts the tally at 52-31, with the other 17 left to be analyzed.

Analysis of the 17 Mystery Senators

Comparison of Senate Makeup, 2000 and 2002
The New 20
Democrats Republicans
1010
Anti-AmendmentPro-Amendment
??
The Old 20
Democrats Republicans
713
Anti-AmendmentPro-Amendment
614

The question marks in the first table are what this section analyzes. It is hard to know how many of the new 20 senators will be either pro- or anti-amendment. An in-depth look at any previous votes on the issue, their political background, free speech views, military service, and state demographics is all necessary to hypothesize what each senator's vote will be.

As stated above, only 3 of the 20 have voted on the issue before, in the House of Representatives. The chart below lists each of the remaining 17 senators and different variables affecting them. These variables are the best predictor of how the senator will vote on the issue.
New Senators and Variables
Senator Republican or Democrat? Liberal/Conservative Score* State Voted Bush?
Lamar AlexanderRepublican0Yes
George AllenRepublican0Yes
Maria CantwellDemocrat4No
Thomas CarperDemocrat3No
Hillary ClintonDemocrat4No
Norm ColemanRepublican0No
John CornynRepublican0Yes
Jon CorzineDemocrat4No
Mark DaytonDemocrat4No
Elizabeth DoleRepublican0Yes
John EnsignRepublican0Yes
Zell MillerDemocrat0Yes
Lisa MurkowskiRepublican0Yes
Bill NelsonDemocrat3Yes
Ben NelsonDemocrat0Yes
Mark PryorDemocrat2Yes
Debbie StabenowDemocrat4No
Jim TalentRepublican0Yes

*=4 Senate votes from January through May 22, 2003 were used to determine the score. A perfect conservative score yielded a 0 while a perfect liberal score yielded a 4. The three policy issues counted were 1)the partial birth abortion ban on March 13 2) the attempt to break the filibuster of Miguel Estrada's nomination 3)the tax cut package on May 15 and 4)the access to abortion for military women overseas debate on May 22. Votes against the partial-birth bill and the tax cut bill and for the access to abortions overseas amendment were counted as liberal votes.

The Results

While there are a number of unforseen variables that can sway a politician's vote on the issue (i.e. a concession), the variables above can give a pretty clear picture of who will vote for or against the amendment.

Those voting for the amendment will most likely include Lamar Alexander, George Allen, John Cornyn, Elizabeth Dole, John Ensign, Zell Miller, Lisa Murkowski, Ben Nelson, Mark Pryor and James Talent.

Those voting against the amendment will likely include Maria Cantwell, Thomas Carper, Hillary Clinton, Jon Corzine, Mark Dayton, Bill Nelson, and Debbie Stabenow.

How the Senate Will Likely Vote in 2003
..................... For the Amendment Against the Amendment Total
Republicans48351
Democrats*143549
Total6238100
*For the sake of simplicity, Jim Jeffords (I-VT) is considered a Democrat for this chart.

PREDICTION

The Senate will reject the constitutional amendment by a vote of 38-62, leaving the tally 5 votes short of the 2/3 majority needed.

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