Mr. BRADY. I think they have spent a lot more than $3 million, Senator. I know that they have spent, to restore one flag, the Star Spangled Banner, one flag that the President has called "a treasure". Senator LEAHY. No, I am talking about this effort. Mr. BRADY. I know they have spent something like $12 million. So we have spent, I think, less than they have for that one flag simply because we believe all flags are treasures. Senator LEAHY. OK; under the amendment, Professor Parker, do we have to prohibit all flag desecration, or would it permit legislation-now, remember, we don't have the legislation before us, but assuming this is adopted, we have to pass legislation. Would the amendment permit us to pass legislation that prohibited only certain instances of flag desecration? Or would it require all instances? Mr. PARKER. As I understand it, we do have legislation before us. It is still technically on the books, the Flag Protection Act of 1989. That did, in addition to defining desecration with a string of words-mutilates, defaces, defiles, and so on-make an exception for disposal of a flag when it has become worn or soiled. Senator LEAHY. But if this amendment passed, would we have to pass new legislation or would it-it speaks prospectively, the amendment. Would we be required to pass new legislation or would the old legislation automatically take effect? Mr. PARKER. That is a fascinating question. The 14th amendment Senator LEAHY. You are a fascinating lawyer. Do you have an answer? Mr. PARKER. Well, no, I don't have an answer, but I have a thought. The 14th amendment was enacted in large part because of doubts about the constitutionality of the Civil Rights Act of 1866. After-what was it?-3 years later, the 14th amendment established the constitutionality of a previously enacted statute. Now, that previously enacted statute had not been declared unconstitutional by the Supreme Court, to be sure, and that is a difference. But I think the better view is that this law remains on the books and would be revived if the amendment is ratified. But perhaps it would be more sensible for the Congress to reenact this, perhaps with amendments. Senator LEAHY. Well, let's say we did and we looked at General Brady's and General Baca's idea that it should be like a traffic fine for this. I mean, that would be something we would want to look at, the amounts. Others might say it should be a felony, and there should be a jail sentence. So I suspect the reality is, Mr. Parker, if this constitutional amendment were to be adopted, the Congress would begin to spell it out. So let me ask you this: Could we draw legislation that would prohibit only certain instances of flag desecration? Could we, for example, outlaw only those flag burnings intended as a protest against incumbent office holders or exempt them? Mr. PARKER. Clearly, the answer to that is no. There is a clear answer there. That would be a violation of the first amendment. Senator LEAHY. Would it supersede a prohibition on prior restraints? Could we prohibit flag desecration conspiracies? You have somebody on the Internet saying let's get together at 3 o'clock Tuesday afternoon to burn a flag? Mr. PARKER. Well, first of all, the prior restraint doctrine would remain in place. That is a first amendment doctrine. It wouldn't be changed in any way by this amendment. As to conspiracies, whether or not I hadn't thought that the prior restraint doctrine was a problem there, but I suppose there could be a conspiracy prosecution. I don't see any reason why not off the bat. Senator LEAHY. I am just asking. I am curious myself, and I started thinking of these things yesterday. What do you feel should be the penalty? Mr. PARKER. Personally, I would tend to agree with the generals that a jail term is probably not reasonable. But basically this is up to Congress. Members of Congress are elected to make this decision. You made a decision with a lot of expert advice 10 years ago in the Flag Protection Act of 1989, and perhaps you will choose to amend it. Senator LEAHY. I remember working on that, and I thought we did make some progress on a number of instances, and I believe you were one of the ones who gave or those associated with you gave us some advice, a lot of which was followed virtually unanimously here. And if we wanted to put a 10-year penalty or a 20year penalty under this constitutional provision, do you see a reason why we could not do that? Mr. PARKER. No, I think you could do that, and I certainly trust the Congress Senator LEAHY. I do, too. I mean, I just was curious. And I also agree that we can put the traffic fine/misdemeanor thing or the educational aspect that General Brady raised. Mr. Chairman, I will have other questions for the record. I would also ask that a letter from Dennis Burke, the Acting Assistant Attorney General, explaining their understanding of the notice from the committee be included in the record. The CHAIRMAN. Without objection, we will put that in the record. [The letter follows:] Hon. ORRIN G. HATCH, U.S. DEPARTMENT OF JUSTICE, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Hon. PATRICK J. LEAHY, Ranking Minority Member, Committee on the Judiciary, U.S. Senate, Washington, DC. DEAR MR. CHAIRMAN AND SENATOR LEAHY: Last week the Administration requested that the Committee grant the opportunity for a witness to testify at today's hearing on S.J. Res. 14, which the Committee did. The Department of Justice has testified on this important issue several times over the last few years and the witness has always been the head of the Office of Legal Counsel; Assistant Attorney General William Barr, Acting Assistant Attorney General Michael Luttig, and Assistant Attorney General Walter Dellinger. Consistent with that tradition and precedent, we agreed to provide Acting Assistant Attorney General for the Office of Legal Counsel Randolph D. Moss as a witness. Yesterday, consistent with our request to testify, we provided Mr. Moss' written statement for the record. As you know, the Department and the Committee have a long-standing agreement over many Congresses that Department witnesses, at hearings such as this, testify after any Members of Congress and only on panels with other Administration wit nesses. Unfortunately, twenty minutes before the hearing, we were informed that, contrary to long-standing Committee policy and the Department's request, Mr. Moss would not be afforded the same courtesy traditionally given Department witnesses. As important as it is to have a witness at this hearing, we think it is equally important not to make an exception to this tradition in this case. We would be happy to answer any questions in writing or testify at any additional hearings on this important constitutional issue. The extremely short notice to the Department on the final decision regarding the panel organization necessitates our equally short notice to you of withdrawing our witness. Sincerely, DENNIS K. BURKE, Acting Assistant Attorney General. The CHAIRMAN. Let me just, before I turn it to you, Russ, if I can: Mr. Parker, as you will recall, the Congress did enact and the Senate did enact, by 91 votes, a statute back in 1989. And what was the penalty in that statute? Mr. PARKER. What it says here is that a violation shall be fined under this title or imprisoned for not more than 1 year, or both. The CHAIRMAN. So that was the penalty that 91 Senators voted for. I did not. But I believe Senator Leahy did vote for that. I have suggested that, look, if we pass this amendment, we might as well stick with that statute that had such overwhelming support. So that would solve that problem. Senator Feingold. Senator FEINGOLD. Thank you, Mr. Chairman. I thank the chairman for raising the question of the guidelines for the constitutional amendments proposed by the Citizens for the Constitution. As indicated in the item we put in the record earlier, there are eight criteria for this, and certainly it would be hard to argue that some of them have not been met. One is that there be full and fair debate on the merits of the proposed amendment, and through the good offices of the chairman, I think that is happening again now in this Congress and has in the past. But there are other criteria that I don't think are clearly met. Does the proposed amendment address matters that are of more than immediate concern that are likely to be recognized as of abiding importance by a subsequent generation? Certainly you could argue that. On the other hand, when subsequent generations find out that there have only been apparently approximately 36 incidents of this kind in the whole Ñation in the last 4 years out of over 250 million Americans, and then the proposal by some is to only make such acts a misdemeanor, I think one may fairly question whether this criteria is met. Another criteria, is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact? And, another is, have proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which this amendment would interact with other constitutional provisions and principles? In my view, that has not been done. In fact, that is my greatest concern, the impact this will have on the basic structure of our Bill of Rights that has been the underpinning of our system of government. So I simply respond to that briefly. I also want to respond to Senator Smith's remarks. I wish that Senator Smith was still here, because when he gives the example of the burning of the Selective Service card, United States v. O'Brien, he fails to mention that the reason the Court said that individuals could be presented for burning their Selective Service cards was that there was an independent government purpose, in terms of the integrity and the ability, the functioning of the draft and that was the reason why the Court felt that that is not a permissible act. In fact, the court specifically indicated that if the prosecution simply had to do with the nature of the speech rather than that threat, it may have made a very different decision. Finally, Senator Smith makes my point exactly about the problem with this approach, not with the feeling but the approach, when he says, "Senator Feingold has proposed limitations on free speech through campaign finance reform." You will not see my name on the proposed constitutional amendment to amend the Bill of Rights for purposes of campaign finance reform, as strongly as I feel about it. In fact, I voted against it, as did Senator McCain, because even though I want to win, I do not want to win at all costs. I will play by the rules. And my view of the rules is that it is a huge mistake to amend the U.S. Constitution, particularly the Bill of Rights, so that I can win the campaign finance battle. I want to win it within the rulings of the Supreme Court, even though I may not be happy with them. I think that is a very important point because it is not your goal of protecting the flag, of course, that I object to. It is the mechanism that you have chosen. Having said that, I want to ask a question of Professor May. First let me reiterate my admiration for your wonderful service to this country. I was struck by the comparison you drew in your testimony between the effort that is being made by many and by the Congress to pass this amendment and the frequent failures of the Congress and our society to follow through on our commitment to veterans and their families, and especially their healthcare. The reference to the bonus march historically is particularly compelling. I can tell you there are a lot of veterans out there in this country who feel physically and emotionally hurt by the failure of this Government to provide for their healthcare. I wonder if you would comment a bit about our priorities with regard to those programs versus passing the flag amendment. Mr. MAY. It is my belief that the true measure of our honor to the people who answer the call to serve under arms is what we do for them afterward, implicit in or explicit in the social contract within which we engage them in military service. So to that end, I would suggest that providing benefits for veterans and understanding the consequences of military service that transcend the veteran experience and spill over into the family is something that we ought to give more attention to as a Nation. For example, with Vietnam veterans, we found that as early as the mid- and late 1970's, they were not using the healthcare resources that were available to them within the Veterans Administration. And it seemed to be the case that part of the reason for that was that they did not feel the same identification or the affinity with some of the characteristics and trappings of those offices that earlier veterans had felt. That was one of the reasons why in 1979 the VA launched the Vet Center program when Senator Cleland was then Administrator of Veterans Affairs. So I think the Congress recognized the wisdom and understanding that some of the symbolic representation of service and honoring service that was found in the traditional service delivery system wasn't working well for this new generation of veterans, and the decision then was made to do something that could actually be of help to them in the form of outreach and engaging them with appropriate help so that they could become involved. I think that the continued shortfall in providing those kinds of services for veterans and families is something that is really a national problem that ought to be addressed. Senator FEINGOLD. I thank you. I just wish we could have this kind of energy and passion behind the issues relating to healthcare for veterans. It would be enormously helpful to some of our efforts in the Congress. Reverend Wilson made exceptionally eloquent remarks, and it sort of gave voice to some feelings I didn't even know I had about this issue when it comes to the distinction between that which is secular and that which is sacred. I am wondering if you have ever had a chance to talk to West Virginians about your views on this, or your parishioners. How do they react? I am sure there are an awful lot of people in West Virginia that believe we ought to pass this amendment. How does it go when you have those kinds of conversations? Reverend WILSON. I must confess, Senator, I have not had those conversations about this particular amendment. I am sure, however, that you are right, that there are many folks who would fall on each side of the issue. Senator FEINGOLD. The interesting experience I have had, especially with veterans, is whenever we have had a chance to sit down-I do a town meeting in every one of Wisconsin's 72 counties every year, and sometimes one of the veterans comes from the American Legion to represent their view. On two or three occasions, the individual has come and stated the view of the American Legion Hall that he represents, and then said, "But I don't agree with it," because he as a veteran felt that perhaps this wasn't the wisest course, despite his love for the flag. General Brady, it is good to see you again. Mr. BRADY. Yes, sir. Senator FEINGOLD. In my opening remarks, I talked about the need for those who fervently support this amendment to understand that those of us who oppose it do not support flag burning, and revere and honor the flag for which it stands, and I appreciate your earlier remarks that suggest that. But I do want to read from an advertisement that was run against a Member of Congress by your organization in the 1996 elections. It said: Some things are wrong. They have always been wrong. And no matter how many politicians say they're right, they're still hateful and wrong. Stand up for the right values. Call Representative So-and-So today. Ask him why he voted against the flag protection amendment, against the values we hold dear, the constitutional amendment to safeguard our flag, because America's values are worth protecting. |