Why the Flag-burning Ban Failed

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An American flag burns.

One of the last major accomplishments of Randy "Duke" Cunningham before the Republican Congressman was jailed for taking $2.4 million in bribes was to sponsor an amendment to the 217-year-old Constitution of the United States. The amendment, which would have given Congress the power to outlaw "desecration" of the flag, cleared the required two-thirds majority in the House last year and Tuesday evening the Senate put the amendment to a vote. Both sides in the battle said during the run up to the vote that supporters were one vote short of the 67 required for Congressional passage — and despite a late push to flip one more Senator, the Amendment did indeed fail, 66-34.

Of all the 34 Senators the amendment's supporters wish they had had on their side, Mitch McConnell is surely the top of their list. McConnell, the Senate Republican Whip, is normally in charge of herding the GOP agenda through the Senate. On this issue, though, with the thinnest of margins, the conservative Kentuckian has been on the other side of the wire.

McConnell took a classically conservative position on the amendment. He argued that Senators have to make a choice: protect the flag, which is a symbol of freedom, or protect the constitution, which is the literal source of American freedoms. In a recent editorial, McConnell wrote, "The First Amendment, which protects our freedom of speech, is the most precious part of the Bill of Rights. As disgusting as the ideas expressed by those who would burn the flag are, they remain protected by the First Amendment."

Though he was only one of three Republicans against the amendment, McConnell was lying low in the debate, declining to combine his whipping skills with those of his nemesis, Dick Durbin of Illinois, who was rallying Democratic opponents of the Amendment. Supporters were not quite so delicate with him. At a Flag Day celebration earlier this month attended by Senator Majority Leader Bill Frist and Kentucky's other Senator, Jim Bunning, for example, backers trotted out Miss America 2000, Heather French Henry, former Miss America and wife of Kentucky's Democratic Lieutenant Governor, who singled McConnell out and asked him "to help protect our flag."

Despite such treacly gambits, McConnell didn't bend, so amendment supporters were forced to target centrist Democrats in the hope of making up their one-vote deficit. But none of the ones they were eyeing Mark Pryor of Arkansas, Kent Conrad of North Dakota and Maria Cantwell of Washington flipped. Even if they could have gotten one of them to change his or her position, it might not have mattered. Senate Republican aides believe that as many as a dozen self-proclaimed amendment supporters privately opposed the flag burning amendment and were only supporting it for political gain. If the Amendment were to have actually passed, the aides predicted, those same politicians would have voted their conscience, dooming the flag-burning amendment on the Senate floor.

That won't be the last you hear of the flag burning amendment, however. Democrats expect Republicans to use the issue as a mobilizing tool in mid-term elections this fall. And with close to a dozen Senators considering a run for the White House in 2008, they'll all have reasons to use their votes to burnish their credentials with the base. One place you may not see the amendment again for a few years, however, is on the floor of the Senate. Frist is stepping down as majority leader after the mid-terms and McConnell is unchallenged as his replacement as top Republican—and Senate agenda-setter—should Republicans keep control.