A constitutional amendment that would allow Congress to ban flag burning passed the House yesterday, and congressional leaders said it has a strong chance to clear the Senate for the first time, sending it to the states for ratification.
The House has passed the measure four times before, but it has always fallen short of the two-thirds vote needed in the Senate. But changes in the Senate's makeup shifted several votes to the bill's supporters, and a lobbyist who leads the opposition said the absence of one or two senators could mean that the measure would pass.
"There are too many scenarios where we lose," said Terri Ann Schroeder, senior lobbyist for the American Civil Liberties Union. "We're very concerned." Schroeder counts 65 solid votes in favor of the amendment of the 67 needed for passage if everyone votes. "We still have a number of folks that have never voted, and we still have a potential problem if 100 members do not vote," she said.
The issue has been a favorite of conservatives since a 5 to 4 Supreme Court ruling in 1989 that protected flag desecration as free speech.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) favors the measure and plans to hold a hearing shortly after the Fourth of July break, Republican aides said. Senate Majority Leader Bill Frist (R-Tenn.) could schedule a floor vote as soon as next month, the aides said.
Specter plans to let Sen. Orrin G. Hatch (R-Utah), a former chairman of the committee and longtime champion of the measure, preside over the hearing. Hatch said he believes the measure will pass and said he is motivated by relatives who have died in combat. "I think acts of flag desecration are offensive conduct we ought to ban in the interest of protecting the greatest symbol of our country," Hatch said.
Among the new votes for the amendment is Sen. John Thune (R-S.D.), who pushed the issue in his campaign and helped recruit co-sponsors. "Out in the country, at the grass-roots level, it's seen as a common man's practical patriotism," Thune said.
Another freshman, Sen. Barack Obama (D-Ill.), will oppose the measure, aides said.
Sen. Hillary Rodham Clinton (D-N.Y.) said in a statement that she would "support federal legislation that would outlaw flag desecration, much like laws that currently prohibit the burning of crosses, but I don't believe a constitutional amendment is the answer."
The House measure passed 286 to 130. Republicans were almost entirely for it, 209 to 12. Democrats were not as united in their opposition, with 117 against the measure and 77 for it. House Judiciary Chairman F. James Sensenbrenner Jr. (R-Wis.) said during the debate that lawmakers "must act with bipartisan dispatch to ensure that this issue is returned to the hands of those most interested in preserving freedom -- the people themselves."
The measure would have to be ratified by 38 states to become part of the Constitution.