U.S. SENATOR PATRICK LEAHY

[WASHINGTON (Tuesday, July 20) – In a largely party line vote Tuesday, the Republican-controlled Senate Judiciary Committee approved a constitutional amendment authorizing Congress to ban flag desecration.  U.S. Senator Patrick Leahy (D-Vt.), the ranking Democratic member of the panel, opposed the GOP-backed amendment as did several other Democratic members of the committee in an 11-7-1 vote.  The panel’s vote comes on the heels of another effort by the Senate Republican leadership to alter the Constitution to curtail individual rights.  Last week, Republicans in the Senate failed in their bid to pass an amendment banning gay marriage.  Sen. Leahy’s statement from the panel’s meeting this morning is below; a 1999 letter to Leahy from General Colin Powell -- in opposition to the constitutional amendment – also is below.]

Statement Of Senator Patrick Leahy
On S.J.Res.4, The Constitutional Amendment
Authorizing Congress To Prohibit Physical Desecration
Of The Flag Of The United States
Executive Committee Meeting
July 20, 2004

It would seem that members of the majority are obsessed with rewriting the Constitution.  This is the fourth constitutional amendment that this Committee has considered in the 108^th Congress.  Of course, the amendments the Republican majority has chosen NOT to consider are the ones promised by the Republican platform four years ago to require a balanced budget and to undercut a woman’s right to choose.  Even Republican partisans must be embarrassed at the way President Bush and the Republican majorities in the Congress have turned the budget surplus President Clinton provided into the largest budget deficits in history under President Bush.  Over the last several years they have sought to undercut a woman’s right to choose by way of the President’s activist judicial nominees rather than a constitutional amendment.

The proposed amendment we consider today is another in a series of amendments Republicans have pressed that would result in limiting rather than expanding the rights of the American people.  This proposal is one of over 70 amendments introduced so far in this Congress alone, and over 11,000 since the First Congress convened in 1789.  Can you imagine what the Constitution would look like if all of these amendments had been adopted?

I am encouraged by the Senate’s bipartisan rejection of action on S.J. Res. 40, the proposal to federalize marriage by way of a constitutional amendment.  Fifty Senators voted against cloture.  I know that others who voted in favor of more debate were nonetheless troubled by the proposed constitutional amendment and the process by which the Republican leadership brought it before the Senate at this time.  I hope that in the future the Republican leadership will not seek to circumvent this Committee by bringing constitutional amendment proposals directly to the floor of the Senate.

The forced debate on the proposal to federalize marriage by amending the Constitution that consumed the Senate’s time last week was both divisive and unnecessary.  The failure of the Republican leadership to obtain even a simple majority of Senators to support their efforts, on a procedural vote, should indicate to them how unwise it is to abuse the Constitution in a partisan election year tactic.   

The proposed amendment we turn to today would also create division among the American people.  The timing of this consideration, also squarely in the middle of an election year as we approach the conventions and as the campaigns pick up momentum nationally, raises concerns, again, that the Constitution is being misused for partisan purposes.

It is wrong to seek partisan advantage at the expense of the Constitution.  I am becoming a believer in what we might call the “Durbin Rule.”  I have heard the astute Senator from Illinois observe recently that we should have a rule that prohibits consideration of constitutional amendments within six months of a presidential election or during the election year.  He is right, the Constitution is too important to be made a bulletin board for campaign sloganeering.  This could be a corollary to the “Thurmond Rule” on judicial nominations.  We should find a way to restrain the impulse of some to politicize the Constitution.

VETERANS’ BUDGET PRIORITIES IGNORED

As a member of the Appropriations Committee, I know that where you put your resources reveals a lot about your priorities.  The Bush Administration’s budget has simply failed to honor our veterans, especially when it comes to medical care.

The President’s budget request this year failed to maintain even the current level of services.  Secretary of Veterans Affairs Principi recently testified that his department asked the White House for an additional $1.2 billion.  Needless to say, he was denied. 

But Secretary Principi was not the only one ignored by the President’s budget request.  This request is almost $3 billion less than what Veterans groups -- like the American Legion, the Veterans of Foreign Wars, and the Paralyzed Veterans of America -- recommended in The Independent Budget.  These organizations know what it will take to meet veterans’ health care needs. 

During consideration of this year’s budget resolution, Senator Daschle offered an amendment to fund veterans programs at the level recommended by the Independent Budget.  Unfortunately, only one Republican voted in favor of this amendment, and it was defeated.  A second amendment, offered by Senator Nelson, would have increased funding for veterans by $1.8 billion.  It too was defeated.  Not a single Republican supported the Nelson amendment. 

My friends on the other side of the aisle then offered a “smoke and mirrors” amendment on veterans’ care.  Although this amendment made it seem that the Senate was voting to provide more money for veterans, we all know that this amendment did not add one red cent.  The main purpose of this amendment was to provide political cover for the November election.

Answering questions from our March 2004 hearing on the proposed constitutional amendment, the Chairman of the Citizen’s Flag Alliance -- Major General Patrick Brady -- noted that “we have never fully met the needs of our veterans.”  This echoed General Brady’s frank admission, following our April 1999 hearing, that “the most pressing issues facing our veterans” were not flag burnings, but rather “broken promises, especially health care.”

Sadly, playing politics with veterans’ care is nothing new. 

For the past three years, Congress has had to add more than $2.1 billion to the President’s budget request just to fill gaps in basic services.  If we had done as the President asked, veterans’ medical care would be in even worse shape.  But, this year, the Congress is not off to an encouraging start.  It is July 20, we are 10 months into the fiscal year, and the Appropriations Committee has not reported out a single bill – including the VA-HUD bill.

We need to act.  While the Administration is shortchanging VA funding, out-of-pocket expenses to veterans are skyrocketing.  Under the Bush Administration, these expenses are projected to rise by an incredible 478 percent.  Certain Priority 8 veterans are blocked from VA health care altogether, while others cannot receive treatment unless they pay a ridiculously high co-payment.

On top of all of this, a White House memo recently reported in the press, contains instructions for a $910 million decrease in veterans’ health care funding in Fiscal Year 2006.  I am sure that it is pure coincidence that these additional cuts are scheduled for after the election.    

I could go on and on, describing the claims backlog, the longer waits, and the cuts in service.  The bottom line is that the Administration’s rhetoric towards veterans simply does not match its real priorities.     

Instead of debating polarizing issues that we have talked about over and over again, we should be acting to provide real resources for our men and women who served this country with honor.  I hope that Republicans and Democrats will join together this year to make helping our veterans the priority that it needs to be.

CYNICISM AND SYMBOLIC POLITICS

The flag is an important symbol of all that makes America great.  But the cynical use of symbolic politics in an election year will not address the very real needs of veterans that are being left unmet by this Administration.

We saw the same kind of manipulation earlier this year, when the President’s reelection campaign began to run television ads exploiting the September 11 attacks for political advantage.  There was an immediate outcry of disgust from victims’ families and New York City firefighters who had believed the President when he said that he had “no ambition whatsoever” to use 9/11 or national security as a political issue.  An organization of victims and firefighters called for the campaign to stop running the ads, but the President turned them down.

And so, in the midst of manipulative electioneering, this business meeting is convened to debate a proposed amendment that has already been the subject of extensive review in past years by this Committee and days of debate on the Senate floor. 

COUNSEL FROM COMBAT VETERANS JOHN GLENN AND BOB KERREY

I understand that many veterans support the flag desecration amendment and I respect their views.  We must not forget that there also are many veterans who oppose it.  Even after the intensity of the emotions following the September 11th strikes and wars in Afghanistan and Iraq, many veterans still believe that they fought for what the flag stands for, not for the symbol itself. 

Former Senator John Glenn, a combat veteran, wrote, “The flag is the Nation’s most powerful and emotional symbol.  It is our most sacred symbol.  And it is our most revered symbol.  But it is a symbol.  It symbolizes the freedoms that we have in this country, but it is not the freedoms themselves.” 

Former Senator Bob Kerrey, recipient of the Congressional Medal of Honor, reminded us that in this country we believe that “it is the right to speak the unpopular and objectionable that needs the most protecting by our government.”  Speaking specifically of the act of flag burning, he added:  “Patriotism calls upon us to be brave enough to endure and withstand such acts.” 

COLIN POWELL’S ADVICE

A few years ago we heard from another outstanding American in opposition to this proposed amendment.  He was a General, who had headed the Joint Chiefs of Staff, and now he serves as our Secretary of State.  Colin Powell wrote this to me in May 1999:

“We are rightfully outraged when anyone attacks or desecrates our flag.  Few Americans do such things and when they do they are subject to the rightful condemnation of their fellow citizens.  They may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration. …

“I understand how strongly so many of my fellow veterans and citizens feel about the flag … I feel the same sense of outrage.  But I step back from amending the Constitution to relieve that outrage.  The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous. 

“I would not amend that great shield of democracy to hammer a few miscreants. The flag will still be flying proudly long after they have slunk away.”

Like General Powell, I am deeply offended when anyone desecrates our flag.  Recently vandals committed a heinous act in Vermont.  Late at night, outside St. Augustine’s Church in Montpelier, someone wrapped a statue of the Virgin Mary in an American flag and set it on fire.  The statute was seriously damaged.  This was an outrageous act, intended to outrage, and it also represents an attack on the religious community as well as being a gross show of disrespect for the flag.  There is no reason to believe that acts like these cannot or will not be prosecuted under Vermont and other states’ laws prohibiting unlawful mischief and damage to property.  In this instance, officials have also indicated that it may be possible to prosecute the perpetrators under the State hate crimes law.   

I have to wonder whether the testimony we often hear is coming true — that agitating for this constitutional amendment actually leads to more flag burning incidents and that adopting it would lead to more still.

Sometimes, of course, individuals deface the flag or violate the rules for its care without intending to offend.  For example, President Bush was captured on film signing a hand-held flag at a campaign rally last summer.  Appropriate or not, these acts are protected by our Constitution, and they are not punishable by Congress.

CHANGE 1^ST AMENDMENT FOR THE FIRST TIME?

Flag desecration is a despicable and reprehensible act.  But the question before us is not whether we agree with that -- all of us on this Committee agree that it is contemptible.  Instead, the issue before us is whether we should amend the Constitution of the United States, with all the risks that entails, and whether, for the first time in our history, we should narrow the precious freedoms ensured by the First Amendment.  Should we amend the First Amendment so that the Federal Government can prosecute the handful of individuals who show contempt for the flag?  Such a monumental step is unwarranted and unwise.

Justice Brennan wrote, “We can imagine no more appropriate response to burning a flag than waving one's own.”  That is exactly how the American people respond, a point demonstrated by the innate patriotism of Americans in response to events of the past years. 

PATRIOTISM DOESN’T COME BY GOVERNMENT DECREE

Immediately after September 11th, Americans everywhere began to fly flags outside their homes and businesses, to wear flag pins on their lapels, and to put flag stickers on their cars.  This surge in patriotism made American flags such a hot commodity that several major flag manufacturers could not keep flags stocked on store shelves.  Within one week of those attacks, demand for American flags was 20 times higher than was typical for that time of year, according to the National Flag Foundation in Pittsburgh.  During that same week, Wal-Mart sold 450,000 flags.  Within days of the terrorist attacks, K-Mart sold 200,000 flags.

This outpouring of patriotism was spontaneous, and it was the sum total of millions of individual Americans, acting on their own, not under government decree.  The government did not order Americans to buy and fly the American flag.  

Supporters of this constitutional amendment seem to believe that Americans need a lesson in how to respect the flag and that they need rules punishable by law to enforce that lesson.  I disagree, and the American people have already proven them wrong.  The American people do not need a lesson in cherishing and honoring our flag and the Republic for which it stands.  That may be necessary in Saddam Hussein’s Iraq or in Stalin’s Soviet Union or in Castro’s Cuba.  But not in America.

Former Senator Bob Kerrey said, “Real patriotism cannot be coerced.  It must be a voluntary, unselfish, brave act to sacrifice for others.”  Some may find it more comfortable to silence dissenting voices, but coerced silence can only create resentment, disrespect, and disunity.  In America, you do not stamp out a bad idea by repressing it.  You stamp it out with a better idea.

My better idea is to fly the flag, not because the law tells me to; not because there is something that says this is what I have to do to show respect.  I fly the flag because, as an American, I want to.  The extraordinary display of patriotism we have witnessed in recent years is evidence that the American people do not need laws and penalties to cherish the flag that we all love.

THE FREEDOMS FOR WHICH IT STANDS

Our flag is a cherished symbol.  Even more important than the flag itself are the freedoms for which it stands, including the freedom to express unpopular speech or ideas -- even extremely unpopular ideas.

Freedom of speech and of the press is one of the magnificent bequests of earlier Americans to all the generations that follow.  These rights are a fragile thing, needing nurturing and protection by each new generation.  The erosion of freedom can easily come when lawmakers succumb to the temptation to pander to shifting public passions at the expense of the public’s everlasting interest in preserving freedom.  In any session of Congress you do not have to look far to see this dynamic at work.  It may not be politically popular to defend against erosive efforts like this, but generations of Americans to come will thank us if we leave for them the same First Amendment that we ourselves inherited and so dearly treasured.

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May 18, 1999.

Hon. Patrick Leahy  
U.S. Senate,
Washington, DC.

Dear Senator Leahy:

Thank you for your recent letter asking my views on the proposed flag protection amendment.

I love our flag, our Constitution and our country with a love that has no bounds. I defended all three for 35 years as a soldier and was willing to give my life in their defense.

Americans revere their flag as a symbol of the Nation. Indeed, it is because of that reverence that the amendment is under consideration. Few countries in the world would think of amending their Constitution for the purpose of protecting such a symbol.

We are rightfully outraged when anyone attacks or desecrates our flag. Few Americans do such things and when they do they are subject to the rightful condemnation of their fellow citizens. They may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration.

If they are destroying a flag that belongs to someone else, that's a prosecutable crime. If it is a flag they own, I really don't want to amend the Constitution to prosecute someone for foolishly desecrating their own property. We should condemn them and pity them instead.

I understand how strongly so many of my fellow veterans and citizens feel about the flag and I understand the powerful sentiment in state legislatures for such an amendment. I feel the same sense of outrage. But I step back from amending the Constitution to relieve that outrage. The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous.

I would not amend that great shield of democracy to hammer a few miscreants. The flag will still be flying proudly long after they have slunk away.

Finally, I shudder to think of the legal morass we will create trying to implement the body of law that will emerge from such an amendment.

If I were a Member of Congress, I would not vote for the proposed amendment and would fully understand and respect the views of those who would. For or against, we all love our flag with equal devotion.

Sincerely,

COLIN L. POWELL.

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