May 4, 1999

By Ian Swanson
Grand Forks (N.D.) Herald Staff Writer

North Dakota's two senators, long considered to be swing votes on an amendment to the U.S. Constitution banning flag desecration, instead have announced their sponsorship of legislation that makes a crime of such acts.

The move by Sens. Byron Dorgan and Kent Conrad, both Democrats, would make burning the flag illegal when the person burning or in other ways desecrating the flag knows those actions are likely to lead to violence.

At the same time, the announcement by Dorgan and Conrad likely kills the chances of an amendment banning flag desecration passing Congress -- at least until after elections in the year 2000.

An amendment to the U.S. Constitution requires the support of two-thirds of Congress and ratification by three-fourths of the nation's state legislatures. The House approved the amendment in 1997, and 49 state assemblies have gone on record with their support. The last Senate vote on a flag desecration amendment fell only four votes short of passage in 1996.

Dorgan and Conrad consistently have been seen as swing votes by groups on both sides of the issue.

Both voted against the flag amendment in 1996, but both have supported bills making flag desecration illegal. Dorgan repeatedly has said he disagrees with the Supreme Court's decision in 1989 that flag burning constitutes speech protected by the First Amendment.

"I think it's just a ploy to put off the inevitable," said a disappointed David Schmidt, the American Legion's North Dakota adjutant, who noted that the Supreme Court already has struck down as unconstitutional bills similar to the one introduced Friday by Conrad and Dorgan.

Veterans groups have been the amendment's most vocal supporters. Schmidt said the Conrad and Dorgan proposal merely clouds the issue of flag desecration.

"It's long been our feeling that the only way to (protect the flag) when the Supreme Court says a law is unconstitutional is to change the Constitution," he said.

Groups opposed to the amendment said the North Dakota senators' announcement was absolutely critical in preventing a rare change to the U.S. Constitution.

"This issue in the Senate has been really too close to call," said Catherine LeRoy, director of public policy for People for the American Way, a national nonprofit civil liberties organization that has worked to defeat the flag desecration amendment.

She said if votes on the amendment were held today, the constitutional change likely would pass the House again before falling a few votes short of a two-thirds majority in the Senate.

Schmidt said pro-amendment groups believed they were within one vote of seeing the flag desecration amendment pass the Senate.

An alternative

Dorgan and Conrad both released statements Friday announcing their sponsorship of the Flag Protection Act of 1999.

Both said the act serves as an alternative to amending the Constitution that would stand up to a challenge in the courts.

"We have a clear responsibility to exhaust all other options before we take the very serious step of amending the Constitution of the United States," Conrad said in a statement.

"The Founding Fathers made it very difficult to change the Constitution," he said, noting that only 27 amendments, including the Bill of Rights, have been added.

"I believe that we can propose and pass a statute that will protect the flag against burning and other acts of desecration, and I believe that statute will be upheld as constitutional," Conrad said.

Besides Dorgan and Conrad, Sens. Mitch McConnel, D-Ky., and Robert Bennett, R-Utah, are sponsoring the Flag Protection Act.

In his statement, Dorgan said constitutional scholars have told him they believe this type of statute will be upheld by the U.S. Supreme Court, which has declared such legislation unconstitutional twice in the past.

Continued pressure

Civil liberties and veterans groups show no signs of letting up the pressure.

Last year, Dorgan and Conrad received attention from lobbyists on both sides of the flag amendment issue; People for the American Way spent $20,000 on television advertisements that urged North Dakota's voters to tell their two senators to vote against the amendment. Neither senator from North Dakota announced he would change his position, and the Senate adjourned without voting on the proposed constitutional change.

Schmidt said he thinks there's still a chance the flag amendment could pass Congress this year.

"Both Conrad and Dorgan want to go this route, but they also want to protect our flag," he said. "They've indicated to us that if this doesn't pass the test, that would make a stronger argument to go along with the constitutional amendment."

LeRoy said it's not over until it's over.

"We are not going to slack off our efforts, particularly in the Senate, to continue to consolidate our support and touch base with folks who are opponents to the amendment," she said.