E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 104 CONGRESS, FIRST SESSION

Vol. 141 WASHINGTON, FRIDAY, DECEMBER 8, 1995 No. 195 House of Representatives The House was not in session today. Its next meeting will be held on Monday, December 11, 1995, at 12 noon. Senate FRIDAY, DECEMBER 8, 1995

The Senate met at 10 a.m. and was FLAG DESECRATION Wife and past president of the Gold called to order by the President pro CONSTITUTIONAL AMENDMENT Star Wives of America. tempore [Mr. THURMOND]. The PRESIDENT pro tempore. Under She testified in support of this con- the previous order, the Senate will now stitutional amendment to prevent PRAYER proceed to the consideration of Senate desecration of the American flag, our The Chaplain, Dr. Lloyd John Joint Resolution 31, which the clerk national symbol. She testified in sup- port of this amendment on June 6, 1995, Ogilvie, offered the following prayer: will report. Let us pray: The legislative clerk read as follows: before the Constitution Subcommittee, Lord of all life, thank You for the and brought with her the flag that had A joint resolution (S.J. Res. 31) proposing draped her husband’s coffin. She said: gift of time. You have given us the an amendment to the Constitution of the hours of this day to work for Your United States to grant Congress and the It’s not fair and it’s not right that flags glory by serving our Nation. Remind us States the power to prohibit the physical like this flag, handed to me by an honor that there is enough time in any one desecration of the flag of the United States. guard 23 years ago, can be legally burned by day to do what You want us to accom- someone in this country. It is a dishonor to The Senate proceeded to consider- our husbands and an insult to their widows plish. Release us from that rushed feel- ation of the joint resolution. to allow this flag to be legally burned. ing when we overload Your agenda for Mr. HATCH. Mr. President, I suggest Go tell Rose Lee she supports the us with things which You may not have the absence of a quorum. flag protection amendment out of pure, intended for us to cram into today. The PRESIDING OFFICER (Mr. sheer politics. Help us to live on Your timing. Grant DEWINE). The clerk will call the roll. Go tell the members of the American us serenity when we feel irritated by The legislative clerk proceeded to Legion who have been visiting our of- trifling annoyances, by temporary frus- call the roll. fices. Go tell our colleague, Senator tration, by little things to which we Mr. HATCH. Mr. President, I ask HEFLIN, a Silver Star winner from must give time and attention. May we unanimous consent that the order for World War II, that he is playing poli- do what the moment demands with a the quorum call be rescinded. tics. Tell the Senate Democratic whip, heart of readiness. Also give us the The PRESIDING OFFICER. Without Senator FORD, that he is playing poli- courage to carve out time for quiet objection, it is so ordered. tics by cosponsoring and supporting thought and creative planning to focus Mr. HATCH. Mr. President, in listen- this amendment, a man who has suf- our attention on the big things we ing to the debate on the flag amend- fered a lot for this country. Tell the must debate, and eventually decide ment on Wednesday and some of the re- Democratic leader of the other body, with a decisive vote. Help us to be si- marks of some of my colleagues here Congressman RICHARD GEPHARDT, and lent, wait on You, and receive Your on the floor, my reaction with respect 92 other House Democrats that they guidance. May the people we serve and to some of their arguments and some of played politics when they voted for those with whom we work sense that in the arguments of the opponents of the this amendment. the midst of pressure and the rough flag amendment comes down to, there As for the number of flag desecra- and tumble of political life, we have they go again. The same tired, old, tions—again, my friend from Arkansas had our minds replenished by listening worn out arguments, again and again. was wrong. He said there were none to You. In the name of our Lord. Amen. One of my colleagues from Arkansas this year. In fact, there have been pub- f says we are here because of ‘‘pure, lished reports of at least 20 American sheer politics.’’ Evidently, some oppo- flags destroyed at a cemetery in RESERVATION OF LEADER TIME nents of the amendment believe there Bloomington, IN, alone. They were cut The PRESIDENT pro tempore. Under is only one side to this argument, and or ripped from flagpoles and burned. the previous order, the leadership time everybody else must be playing poli- These desecrations were also reported is reserved. tics. Tell that to Rose Lee, a Gold Star on local television.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S 18253 S 18254 CONGRESSIONAL RECORD — SENATE December 8, 1995 In July of this year, according to expanded in this country through 1989, cration is in any way like protecting USA Today, a flag was defaced with ob- even as flag protection statutes were the Nazi flag from such desecration, or scene messages about President Clin- being enacted. in any way represents some notion, ton and Speaker GINGRICH in New If I told my colleagues that Nazi Ger- however small, of moral equivalence Hampshire. Are there not countless many also had stringent gun control between Nazi Germany and the United ways of expressing these views without laws, do the opponents of the flag pro- States, or in any way puts the United defacing the flag? tection amendment believe, for that States on some kind of par with Nazi In June, a flag was burned in Hays, reason, America better not adopt a par- Germany. That analogy just will not KS. Just a short time ago, I saw a news ticular gun control measure? They did. float. clip about a motorist at a gas station To use that kind of reasoning, why Mr. Ross still has the flag the Amer- using an American flag to wipe the would that not follow? ican tank commander gave him in 1945. car’s dipstick. A veteran—a veteran— If I told the opponents of the flag Mr. Ross is a supporter of this amend- called it to the police’s attention but, protection amendment that a police ment, and one can read about his story of course, the individual cannot be state had liberal abortion laws, would on the front page of the July 4, 1995, prosecuted today for that desecration that turn them into pro-lifers in Amer- USA Today. of the flag. He can keep using it as he ica? Would it turn them into support- Mr. President, some of my other col- has, or perhaps he will next use it to ers of the Partial-Birth Abortion Ban leagues argue that enactment of this wash his car. Act of 1995? flag amendment would be the begin- My friend from Arkansas raised a So what is the point of comparing ning of a long slide down a slippery concern about a person being punished whether Nazi Germany, Iraq, and the slope to further restrictions on free for refusing to salute or honor the flag. United States protect their respective speech. Give me a break. They even No law enacted under the flag amend- flags? make a thinly veiled comparison be- ment can compel anyone to salute or Certainly, it is not to compare those tween prohibiting physical desecration honor the flag, to say nice things about who voted for a measure protecting the of the American flag with the Chinese the flag, or otherwise compel anyone to flag, such as the Biden statute, includ- Government’s execution of three dis- respect the flag. There is an obvious ing the Senator from Arkansas and al- sidents. Give me a break. This argu- difference between prohibiting physical most every other Senator, with the dic- ment is incredibly overblown. In an- desecration of the American flag, and tators of Nazi Germany and Iraq. swer to this, I would like to quote from I was struck by the highlighting of compelling someone to express respect a letter Bruce Fein, an opponent of the the Nazi flag on the same chart as the for it. So it is totally irrelevant, in this amendment who testified against the American flag. It reminded me of an- amendment. He wrote to the Judiciary debate, to talk about punishment for other use of these two flags. failing to respect or salute the flag or Stephan Ross is a psychologist in Committee in June of this year in re- pledge allegiance to it. The pending Boston, MA. He gave a presentation in sponse to my questions. He states: amendment simply does not authorize the Hart Senate Office Building earlier The proposed amendment is a such punishment. Nor does it authorize this year. He began by displaying a submicroscopic encroachment on free expres- sion that would leave the U.S. galaxies be- punishment for saying critical things Nazi flag, and told the audience he had about the flag, or anything else. yond any other nation in history in tolerat- lived under that flag for several years. ing free speech and press. If foreign nations Some of my friends who have spoken In 1940, at the age of nine, the Nazis here also drew attention to a chart were to emulate the constitutional protec- seized him from his home in Krasnik, tion of freedom of expression in the United with various flags on it from places Poland. He was a prisoner for 5 years in States even with a flag burning amendment, like Nazi Germany, the Soviet Union, 10 Nazi death camps. The American they would earn glittering accolades in the Cuba, and Iraq, with the American flag army liberated Mr. Ross from Dachau State Department’s annual Human Rights in the middle. One of my colleagues in April 1945. In Mr. Ross’s words: reports and from Amnesty International and Human Rights Watch. pointed out that these other countries We were nursed for several days by these prohibited flag desecration. war-weary, but compassionate men and Mr. President, it is time for us to rec- But when opponents of the amend- women until we had enough strength to trav- ognize that the American flag is our ment trot out these comparisons el to Munich for additional medical atten- national symbol; that it has meaning among countries and their flag desecra- tion. to millions and millions of Americans tion laws, they never really explain As we walked ever so slowly and all over this country, many of whom fully their point. To begin with, the unsteadily toward our salvation, a young American tank commander—whose name I have fought for this country, many of difference between the American flag have never known—jumped off his tank to whom have suffered as family members and these other flags is certainly self- help us in whatever way he could. When he who have lost somebody who has evident to all of my colleagues and to saw that I was just a young boy, despite my fought for this country under our flag. the American people. And, of course, I gaunt appearance, he stopped to offer me About 80 percent of the American peo- know that those of my colleagues who comfort and compassion. He gave me his own ple are for this amendment. The re- think these comparisons are useful, food. He touched my withered body with his maining 20 percent either do not know, recognize the difference between what hands and his heart. His love instilled in me a will to live, and I fell at his feet and shed or are people who would not be for any- the American flag represents and what my first tears in five years. thing that contrasts values. Nazi Germany’s flag represents. Mr. President, all this amendment The young American tank com- So what really is the point of the would do is allow the Congress to enact mander gave Mr. Ross what he at first comparisons of flag desecration laws in a law prohibiting physical desecration believed to be a handkerchief. Mr. Ross these countries? Is it that, in some un- of the American flag. We are going to said: defined way, there is a kind of moral take out of the amendment the three equivalence between Nazi Germany, It was only later, after he had gone, that I realized that his handkerchief was a small words ‘‘and the States,’’ so that we will Iraq, and the United States if all three American flag, the first I had ever seen. It not have 51 different interpretations of prohibit physical desecration of their became my flag of redemption and free- what flag desecration is. This change flags? That is too nonsensical to be the dom. . . . will be made at the request of a num- point. Indeed, until 1989, 48 States and Even now, 50 years later, I am overcome ber of Senators who are concerned, as I Congress had outlawed physical dese- with tears and gratitude whenever I see our am, about that possibility. At the ap- cration of the flag. Did any opponent of glorious American flag, because I know what propriate time, an amendment to make the amendment feel they were in a po- it represents not only to me, but to millions that change will be filed. around the world . . . . lice state during that time? I do not Protest if you wish. Speak loudly, even All this amendment does is restore think anybody did. Did the American curse our country and our flag, but please, in the symbol of our American flag to a people not have numerous ways to ex- the name of all those who died for our free- constitutionally protected status. And press themselves without physically doms, don’t physically harm what is so sa- it allows the Congress, if it chooses desecrating our flag? Indeed, as I ex- cred to me and countless others. to—it does not have to, but if it choos- plained in my opening remarks on Go tell Stephen Ross that protecting es to—to enact implementing legisla- Wednesday, freedom of speech actually the American flag from physical dese- tion to protect the flag. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18255 There is no one in Congress who is playing in the woods down in front of the American flag. Who could forget going to go beyond reason in protect- our very, very humble home that my the Iwo Jima Monument, commemo- ing the flag. We will still have our em- dad had built from a burned-out build- rating the soldiers who risked their blems on athletic equipment. We will ing. In fact, for the early years of my lives to see that our Nation’s flag was still have little flags. We will still be life our house was black. I always lifted and flown above that island, a able to have scarves and other beau- thought all houses were black, or symbol for all of them. tiful and artistic renditions of the flag. should have been. One side of it had, as You can go through literally thou- What we will not have is the ability to I recall, a Meadow Gold Dairy sign on sands of stories on why the flag is im- physically desecrate the American the whole side of the house, because he portant. I do not want to make this so flag. had to take that wood from another emotional, but the fact is that it is All we are asking here is to let the building. It was either that or a Pills- emotional. I think it is wrong for any- American people decide this. If we have bury Flour sign. I believe it was a body to come here and say that this is enough support, 66 people in favor, we Meadow Gold Dairy sign. It was one or just a political exercise. That is not a will pass this amendment through the the other. I always thought that was a knock at my dear friends who feel that Senate. That is, of course, only the be- pretty nice thing to have on our house way. I am sure they are sincere, but I ginning of the process, because three- as a young kid. think they are sincerely wrong. quarters of the States will then have to I was down in front of the house play- Paul was sincere, I guess, when he ratify this amendment before it be- ing in the woods, when I heard my held the coats of the people who stoned comes the 28th amendment to the Con- mother and dad. I could tell there was the first Christian martyr. He was as stitution. I believe three-quarters of something wrong. I ran out of the sincere as anyone could be. He held the States will ratify it, because al- woods and ran up to the front porch of their coats. He believed in what they most all of the States have already our house, this humble place, and there were doing. He persecuted the saints. called for this amendment through ef- was a representative of the military in- But Paul was sincerely wrong, and I be- fective legislative enactment. forming my folks that my brother, my lieve anybody that denigrates the in- But what will ensue once this amend- only remaining brother, who we all tentions of those who want to preserve ment passes—something that is worth loved dearly, Jess Hatch, Jess Morlan and protect the flag is, in this case, every effort we put forward—is a tre- Hatch, was missing in action. It was a sincerely wrong. mendous debate in our country about sad occasion. My folks were just bro- I guess what I am saying here is that values, about patriotism, about what is ken up about it. They loved all nine of this is a much more important issue right or wrong with America, about us kids, two of whom had predeceased than just a political issue. To me, poli- things that really will help us to resur- Jess, who was missing in action. tics does not even enter into this. It is rect some of the values that have made When my brother was home, my an issue of whether we value the values America the greatest country in the mother had some beautiful yellow of our country, the things that made world. It will be a debate among the roses that she had grown. She really this country great. It is an issue of people. had a green thumb. She could raise whether we want to have this debate For those who do not want a con- beautiful flowers. He used to kid her over values, whether we want to let the stitutional amendment passed, they about taking those yellow roses and American people really decide for will have a right to go to every one of giving them to his girlfriend, or taking themselves whether the flag is impor- our 50 States and demand that people the plants and giving them to his tant or whether it is not. not allow us to protect the flag from girlfriend. She always laughed. She In a day and age where we seem to be desecration. They will have an equal knew he would never do it. But, for a denigrating values all the time, why right with anybody else to make their couple of months after my brother was should we not stand up for one of the case. We are here to make the decision listed as missing in action, my mother values that really has helped make this to let that debate over values, over received a dozen yellow roses from my country great, that has meant some- right and wrong, over patriotic brother. She believed right up until the thing from the beginning of this Na- thoughts and principles ensue. It is day that they found his body and tion? Why should we not have that de- worth it. brought him back that he was still bate? For those who disagree, however I personally resent anybody indicat- alive. sincerely their opposition, I invite ing that this is just politics. I have He had flown in that fateful Foggia, them to join the debate. Prove us heard some people say, ‘‘Well, if this Italy mission and helped knock out the wrong, not only here on the floor, but was a secret ballot, it would not pass oil fields that really helped to shorten do it, once this amendment passes, at all.’’ I do not agree with that. I be- the war. He flew in a B–24 bomber. He with the American people. I think they lieve there are enough people in this was a hero, and one of the few people are going to find that the vast major- body who realize that we are talking who ever shot down a German jet, ity of the American people do not agree about something pretty valuable here, which were new planes. I have his Pur- with them. something pretty personal, something ple Heart in our home out in Salt Lake Last but not least, there are those that really makes a difference in all of City, as well as a number of his mili- who would argue that this is a denigra- our lives; our national symbol. The tary memorabilia. I also have all of his tion of the First Amendment, or that symbol that soldiers rally behind, fight letters to my mom and dad. I have read nobody has ever amended the Bill of under, went up San Juan Hill to re- every one of them within this last Rights. Let me tell you something. The trieve. For those of us who have lost year, and it was interesting to see how Bill of Rights was no sooner passed loved ones in various wars, this par- he was evolving as a high school grad- when the 11th amendment was passed ticular debate plays an especially sig- uate to the great person that he really to overcome a faulty Supreme Court nificant role. was. decision. A number of the other amend- There are those here who are them- My mom and dad died—my mother ments have been passed since then to selves heroes, and who may disagree, last June and my dad 2 years before. overcome Supreme Court decisions and they have a right to do so. I think They would have given their lives to that were wrong. It is a legitimate they do so legitimately in their eyes, save the American flag. My brother thing. and certainly sincerely. I respect them did. One of my most prized possessions Keep in mind that Earl Warren, Abe and respect their viewpoints, just as I is the American flag that draped my Fortas, Hugo Black, three of the most hope that those on the other side will brother’s coffin. I have that in my liberal members ever on the Supreme respect the viewpoints of those of us home out at Salt Lake as well, along Court, wrote that they believed the who believe that this is an important with his medals. flag could be protected. It had nothing thing, that this is a value in America There have been hundreds of thou- to do with first amendment rights or that is important, that ought to be sands of Americans who died to pre- freedoms in the sense of denigrating upheld. serve liberty around the world who the first amendment. In my case, our family has seen suf- fought—maybe not for the flag, but The fact that in the Johnson case, fering. I can remember as a young boy under the flag—and who have revered the Supreme Court alluded to the first S 18256 CONGRESSIONAL RECORD — SENATE December 8, 1995 amendment, and spoke of the first they see the flag in a parade or at a withstood the test of time, and the rea- amendment right of free speech being ball game or simply hanging from store son it has withstood the test of time is violated, does not make it right. How fronts and porches all across their that we have typically, almost always can anybody say that we are trying to home State. It is one of my favorite resisted the urge to respond to every stop any person from saying whatever sights regardless of the occasion. It adversity, be it real or imagined, with they want to, to denigrate the flag. makes me feel great to be an American that natural instinct to say, ‘‘Let us They can denigrate the flag all they when I see all those flags. pass a constitutional amendment.’’ It want to, with all the free speech in the I appreciate that this is a deeply is a gut feeling we have when we see a world, and I am certainly going to up- emotional issue, and rightly so. Like wrong. Let us just nail it down. Let us hold their right to do it. most Americans, I find the act of burn- not pass a law—put it in the Constitu- What we are against here, and what ing the American flag to be abhorrent tion and forever deal with the issue. we need to establish through a con- and join with the millions of Ameri- However, history, as well as common stitutional amendment, is that this cans who condemn each and every act sense, counsel that we only amend the does not involve speech. It involves im- of flag desecration. I understand those Constitution under very limited cir- proper and offensive conduct. And that who revere our flag and seek to hold it cumstances. I strongly believe that is what Justices Warren, Fortas, and out as a special symbol of this Nation. those circumstances do not exist in the Black basically said. This is not a vio- It is a very special symbol of our Na- case of the so-called flag burning lation of first amendment protected tion. amendment. Proponents of this amend- free speech. Anybody can speak any However, I think the key to this ment argue that we must amend the way they want. Physically desecrating whole issue is that we are not a nation Constitution in order to preserve the the American flag, however, is a viola- of symbols—we are a nation of prin- symbolic value of the U.S. flag. How- tion of the sensitivities and the values ciples. Principles of freedom, of oppor- ever, they do so in the absence of any of America by means of offensive, im- tunity, and liberty. These are the prin- evidence that flag burning is rampant proper conduct, physically treating our ciples that frame our history and these today or that it is likely to be in the national symbol with contempt. are the principles, not the symbols but future. But perhaps more importantly, And even though desecrations of the the principles, that define our great this amendment is offered in the ab- flag occur more than they should, but Nation. These are the principles found sence of any evidence, any evidence at certainly not in overwhelming num- in the U.S. Constitution and the Bill of all, that the symbolic value of the flag bers, every one of them is reported by Rights. has in any way been compromised in the media, seen by millions of people. No matter how dearly we all hold the this great Nation. It has not. No evi- So it is a lot bigger issue than some flag, it is these principles we must pre- dence has been offered to show that the would make it on the floor. I have to serve above all else, and it is adherence small handful of misguided individuals say, I hope that our colleagues will to these principles which forms the who may burn a flag each year have vote for this amendment. It is worth- basis of my opposition to the proposed any effect whatsoever on this Nation’s while to do it. All we are going to do is constitutional amendment. love of the flag or our Democratic way give Congress the right to define this As a threshold, Mr. President, let me of life. matter once and for all, and then we say that I view any effort, any effort at The inescapable fact of the matter is are going to have a debate in this coun- all, to amend the U.S. Constitution as that the respect of this Nation for its try about values, one that I think is something that we should regard with flag is unparalleled. The citizens of long overdue. I hope that our col- trepidation. The chairman in his com- this Nation love and respect the flag leagues will consider that, and I per- ments this morning said to those of us for varied and deeply personal reasons, sonally believe we can pass this amend- who suggest that maybe if we do the some of which were eloquently ex- ment, although it is always uphill on a flag amendment, it might lead to other pressed today by the distinguished constitutional amendment. We under- similar amendments, a slippery slope if chairman of the Judiciary Committee. stand that, and that we may have to you will. The chairman kept saying, That is why they love the flag, not be- keep bringing this amendment forth. ‘‘Give me a break. Give me a break’’— cause the Constitution imposes the re- Ultimately, however, this amendment that this was unlikely; that the emo- sponsibility of love of the flag on them. is going to pass. I guarantee it is going tions that fuel this issue would not fuel As a recent editorial in the La to pass someday, even if it does not other attempts to amend the Constitu- Crosse, WI, newspaper pointed out, pass this time. But I personally believe tion. ‘‘Allegiance that is voluntary is some- we have a good shot at it this time. That those emotions would be just as thing beyond price. But allegiance ex- Mr. President, I will yield the floor worthy and just as heartfelt and patri- tracted by statute—or, worse yet, by to my colleague from Wisconsin. otic and just as full of values as the constitutional fiat—wouldn’t be worth The PRESIDING OFFICER. The Sen- emotions that drive this effort, I think the paper the amendment was drafted ator from Wisconsin. is clear on its face and that this is a on. It is the very fact that the flag is Mr. FEINGOLD. I thank the Chair. first step that could lead to many voluntarily honored that makes it a I certainly want to join with the other steps that could leave the first great and powerful symbol.’’ chairman’s comment that this is a wor- amendment in tatters. I think that is a great statement one thy debate and one that people should Since the adoption of the Bill of of our Wisconsin newspapers made. join in if they have either strong feel- Rights in 1791, the Constitution has Mr. President, the suggestion that we ings in favor of or against the constitu- been amended on only 17 occasions. can mandate, through an amendment tional amendment regarding flag dese- Yet, Mr. President, this is the third to the Constitution, respect for the flag cration. amendment that has been considered or any other symbol ignores the Mr. President, in response to the by our Judiciary Committee in the premise underlying patriotism; more chairman’s challenge, I would like to first term of the 104th Congress alone, importantly, it belies the traditional rise today in opposition, strong opposi- with hearings being held on what could notions of freedom found in our own tion, to the proposed constitutional very well be a fourth constitutional Constitution. amendment relating to the flag. amendment. According to the Congres- Mr. President, some would argue this I do so with the utmost respect for sional Research Service, over 115 debate is simply about protecting the my colleagues and especially the dis- amendments—115 amendments—have flag, that it is just a referendum over tinguished chairman of the Judiciary been introduced thus far just in the who loves the flag more. This faulty Committee and the many Americans 104th Congress—amendments to the premise overlooks the underlying issue who support this effort and, of course, U.S. Constitution. which I think is at the heart of the de- in the spirit of my own utmost respect While I do not question the sincerity bate, that being to what degree are we for the flag of this country. of these efforts, there is much to be as a free society willing to retreat from Mr. President, I and all Members of said for exercising restraint in amend- fundamental principles of freedom this body share the enormous sense of ing this great document. The Constitu- when faced with the actions of just a pride that all Americans have when tion has served this Nation well and handful of misguided individuals? December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18257 In my estimation, Mr. President, the unprecedented step, while still others That individuals should be free to ex- answer is clear. The cost exacted by argue that the amendment has no ef- press themselves, secure in the knowl- this amendment in terms of personal fect whatsoever on the first amend- edge that Government will not sup- freedom—in terms of personal free- ment. This is despite the fact that this press their expression based solely dom—is just far too great a price to amendment, if adopted—make no mis- upon its content, is a premise on which pay to protect a flag which already en- take about it—if it is adopted, it would the Nation was founded. The Framers joys the collective respect and admira- criminalize—make it a crime—the very came to this land to escape oppression tion and love of an entire nation. If same expression that the Supreme at the hands of the state. Obviously, adopted, this amendment will have an Court has previously held to be explic- there is no dispute about that, that unprecedented direct and adverse effect itly protected under the first amend- Government should not limit one’s on the freedoms embodied in the Bill of ment. ability to speak out. That is estab- Rights. These are freedoms which bene- So it is clearly an erosion of the Bill lished in our Constitution by the sim- fit each and every citizen of this Na- of Rights. You may argue that it is a ple words in the first amendment, tion. justified erosion or a necessary erosion, ‘‘Congress shall make no law * * * ’’— Yes, Mr. President, it is true, despite but it clearly limits what the U.S. Su- no law—‘‘* * * abridging the freedom of what the chairman said today, it is preme Court has said is part and parcel speech * * *.’’ true that for the first time in our his- of our freedom as an American to ex- Of course, over time this Nation has tory, for the first time in this great press ourselves. had to grapple with the exact param- Mr. President, I think it is essential Nation’s history, the Constitution and eters of free speech, regulating in re- to carefully consider the basis for the the Bill of Rights, both premised on gard to defamation or obscenity for ex- adoption of the Bill of Rights before we limiting the Government—they are ample. However, the fact that some ex- go ahead and alter it for the first time premised on limiting the Government— pression may be proscribed, can be in our Nation’s history. Many who will be used to limit individual rights, originally opposed the Constitution, stopped, does not obviate the presump- and, in particular, for the first time those not entirely comfortable with tive invalidity of any content-based the constitutional process will be used the ratification, sought the Bill of regulation. In the words of Justice Scalia of the to limit, not guarantee, but limit indi- Rights in particular because, in their vidual freedom of expression. view, the Constitution in its original U.S. Supreme Court: I do not know how you could over- form without the Bill of Rights, failed . . . the Government may proscribe libel; state the significance of such a new to properly consider and protect the but it may not make the further content dis- course in our constitutional history. crimination of proscribing only libel critical basic and fundamental rights of the in- of the Government. As Dean Nichols of the Colorado Col- dividuals of this country. That is why In other words, you cannot chose lege of Law noted before the Constitu- we have a Bill of Rights. tion Subcommittee of the Judiciary Although many Federalists, includ- which messages you like and which Committee, said, ‘‘I think there would ing Madison, felt that the limited pow- messages you do not like. You cannot be a real reluctance to be the first ers conferred to the Government by the say libel against this Government is American Congress to successfully Constitution, the limitations in the different than other kinds of content amend the first amendment.’’ Constitution itself, were sufficiently that might also be libel. Although we Do not let anyone kid you. That is narrow so as to leave those rights safe need not concern ourselves with the what this would do. It would amend the and unquestioned, people still felt we exact parameters of speech subject to first amendment. It will have a dif- had to go ahead and have a Bill of limitation here because the expression ferent number, it will be listed in the Rights adopted in order to provide the in question, political expression, is high twenties, but it will change and reluctant States with the assurance clearly protected under the first alter the first amendment. and the comfort necessary so they amendment. This points out the fact The chairman tries to address that would approve the Constitution, so that the one defining standard that has by saying, well, shortly after the Bill they would enter into this great Fed- marked the history of free expression of Rights was passed, the 11th amend- eral Union. And everyone today in the in this Nation is that speech cannot be ment was passed in 1798. That is accu- 104th Congress should understand this. regulated on the basis of its content. rate. But it did not change the right to What is so much of the rhetoric of The presumptive invalidity of con- free speech. It did not limit the scope the 104th Congress about? The concern tent regulation protects all forms of of the Bill of Rights. that the Federal Government is too speech, that which we all agree with, In fact, the 11th amendment was con- strong, that it does too much, that we as well, of course, as the speech we sistent with the spirit of the Bill of ought to leave enough power to the may disagree with or find objection- Rights by guaranteeing that the States States and to individuals. That is what able. To do otherwise would make the cannot be compromised by the Federal all the rhetoric is about today. Well, promise of free speech a hollow prom- Government. The 11th amendment was that is what the Bill of Rights was ise. What does it mean if we only pro- not about limiting free expression or about also. And that is why we have tect that which we like to hear or is any other freedom of the Bill of Rights. never changed it. Because the notion of pleasant to our ears? It states: the Contract With America is not a As the Supreme Court stated in The Judicial power of the United States new one. It is a heartfelt feeling of all Street versus New York: shall not be construed to extend to any suit Americans that the Federal Govern- . . . freedom to differ is not limited to in law or equity, commenced or prosecuted ment must be tightly limited in its things that do not matter much. That would against one of the United States by Citizens powers so that our liberties as individ- be a mere shadow of freedom. The test of its of another State, or by Citizens or Subjects uals and as States cannot be com- substance is the right to differ as to things of any Foreign State. promised. that touch the heart of the existing order. It is not about free speech. The point From this beginning in compromise, Yet, Mr. President, this amendment is really that this would be the first almost exactly 204 years ago, the Bill departs from that noble and time-hon- time—the first time—in this Nation’s of Rights has evolved into the single ored standard. It seeks instead to pro- history that we would change some- greatest protector of individual free- hibit a certain kind of expression sole- thing I consider to be very sacred, the dom in human history. It has done so ly, solely because of its content. Bill of Rights. That we would choose in large measure, I believe, because at- The committee report accompanying now, after 200 years of the most unpar- tempts to alter its character have to this amendment makes it explicit that alleled liberty in human history, to date been rejected. If this great docu- this effort is directed at that expres- limit the Bill of Rights in the name of ment was changed every few years, as I sion which is deemed disrespectful— patriotism is inherently flawed. And I am sure every Congress has been disrespectful. This amendment at- think it is really, ironically very trag- tempted to do, it would not be the tempts to deal only with disrespectful ic. great Bill of Rights that not only expression. Even more troubling is that Some will argue that we should not Americans revere but people around this amendment leaves the determina- attach too much significance to this the world revere as well. tion of what is disrespectful to the S 18258 CONGRESSIONAL RECORD — SENATE December 8, 1995 Government, the very Government and to traditional American values of for the purported or possible flag burn- that we were trying to limit after we decency and tolerance. But they are all ers, but for all Americans. This amend- won the Revolutionary War and got to- protected forms of expression nonethe- ment will subject the constitutional gether and passed a constitution. It is less, and they would continue to be rights of all Americans to potentially that Government that we are going to protected after this amendment was an infinite number of differing inter- allow to define what is objectionable passed and ratified. So do I believe that pretations, the parameters of which by this amendment. we ought to outlaw them through an the proponents themselves cannot even What could be more contrary to the amendment to the Constitution of the define. very foundations of this country? For United States? Of course not. Without any guidance as to the defi- the purpose of free expression to be ful- So too it is with flag burning. As the nition of the key terms, the proposed filled, the first amendment must pro- Supreme Court has repeatedly stated, amendment provides the Congress and tect those who rise to challenge the ex- the act of flag burning cannot be di- the States the power to prohibit the isting wisdom, to raise those points vorced from the context in which it is physical desecration of the U.S. flag. which may anger or even offend or be occurring, and that is political expres- Testimony was received by the Con- disrespectful. sion. It was pretty clear from our Judi- stitution Subcommittee that the term As the great jurist, William O. Doug- ciary Committee hearings if somebody ‘‘flag of the United States,’’ as used in las, observed, free speech: is out in the backyard grilling on July this amendment, is, as they said, . . . may indeed serve its high purpose 4th and accidentally burns their flag, ‘‘problematic’’ and so ‘‘riddled with when it induces a condition of unrest, cre- that would not be the necessary intent. ambiguity’’ as to ‘‘war with the due ates dissatisfaction with conditions as they There has to be some mental element— process norm that the law should warn are, or even stirs people to anger. it cannot just be an accident. So this before it strikes.’’ Even supporters of Mr. President, adherence to this ideal amendment is about what somebody is this amendment, including former At- is exactly what separates America thinking. It is about what somebody is torney General of the United States from oppressive regimes across the thinking when they burn the flag. It is William Barr, have acknowledged that world. We tolerate dissent, we protect about the content of their mind. the term ‘‘flag’’ could mean many dif- dissenters, while those other countries This Nation has a proud and storied ferent things. The simple fact of the suppress dissent and jail dissenters or, history of political expression, much of matter is that no one can lend any for example—and I can give you many which, obviously, can be characterized guidance as to what the term ‘‘flag’’ examples, as I know the Chair can—as and is characterized sometimes as ob- will mean, other than to suggest that recent events illustrate in Nigeria, the jectionable. Does any Member of this it will be up to various jurisdictions. condemnation of dissenters to a fate body believe that if the question had Senator HATCH, the chairman, has in- far more grave than incarceration: been put to the Crown as to whether or dicated today that the States will be summary execution. not the speech and expression emanat- removed from the amendment. If that The first amendment to the U.S. Con- ing from the Colonies in the form of is not the case, leaving them in would stitution is not infallible. It cannot the Boston Tea Party or the Articles of raise a second practical problem with sanitize free expression any more than Confederation, should be sustained, the this effort to amend the Bill of Rights, it can impart wisdom on thoughts answer, I think, we all know would that being that the fundamental con- which otherwise have none. Nor can have been a resounding no. Could not stitutional rights would be explicitly the first amendment ensure that free the same be said of messages of the subject to the geographic boundaries of expression will always comport with civil rights and suffrage movements? political subdivision. the views of a majority of the Amer- This Nation was born of dissent and, The report accompanying this meas- ican public or the American Govern- contrary to the view that it weakens ure acknowledges that the extent to ment. our democracy, this Nation stands which this amendment will limit your But what the first amendment does today as the leader of the free world freedom of expression could well de- promise is the right of each individual because we tolerate those varying pend on where you live. Therefore, if in this Nation to stand and make their forms of dissent, not because we per- you live in Madison, WI, your rights case, regardless of their particular secute them. could be vastly different than the point of view, and to do so in the ab- In seeking to protect the U.S. flag, rights of your cousin who lives in Se- sence of a Government censor. In my this amendment asks us to depart from attle, WA, for example. estimation, this right is worthy of pre- the fundamental ideal that Govern- Furthermore, the rights of the States serving, and I think that right is at ment shall not suppress expression to limit the first amendment would not risk today on the floor of the U.S. Sen- solely because it is disagreeable. prohibit subsequent legislative bodies ate. As Justice Brennan wrote for the ma- from expanding or further limiting When we start down the road to dis- jority in Texas versus Johnson: rights under the first amendment. In tinguishing between whose message is If there is a bedrock principle underlying other words, fundamental rights to free appropriate and whose is not, we risk the first amendment, it is that the Govern- speech could vary from one election to something far greater than the right to ment may not prohibit expression of an idea the next. burn a flag as political expression. simply because society finds the idea itself So I will await with interest the Much of what is clearly protected ex- offensive or disagreeable. We have not recog- amendment regarding the States, but pression can easily be deemed objec- nized an exception to this principle even as the amendment is written now there where our flag has been involved. tionable. For example, as I said many will be at least—at least—for the first times before and a lot of people have In charting a divergent course, this time in our country’s history, 51 inter- said before me, I deplore those who amendment would create that excep- pretations of the first amendment. proudly display the swastika as they tion, an exception at odds with free ex- I think this is counter to the very parade through our neighborhoods. I pression and with our history of lib- premise of the Bill of Rights, that deplore these who hide behind white erty. If adopted, this amendment being that the rights of individuals sheets and espouse their litany of hate would, for the first time in our history, should remain beyond the purview of and ignorance under a burning—a burn- signal an unprecedented, misguided unwarranted governmental intrusion ing—cross. I deplore those comments and troubling departure from our his- or intervention. That is what led to the which suggest that the most effective tory as a free society. adoption of the Bill of Rights in the way to deal with law enforcement is to Mr. President, there are also defini- first place. shoot them in the head. We hear that tional and practical flaws with this In the words of Justice Jackson, these days. Just as I object to speech amendment. Beyond the proposed speaking for the Supreme Court in 1943: amendment’s departure from tradi- which seeks to equate particularly vile The very purpose of the Bill of Rights was criminal acts with a particular politi- tional notions of free expression, there to withdraw certain subjects from the vicis- cal ideology. are practical aspects that raise con- situdes of political controversy, to place Each of these forms of expression, cerns, not just for those who may offer them beyond the reach of majorities and of- Mr. President, is reprehensible to me objectionable points of view, not just ficials, to establish them as legal principles December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18259 to be applied by the courts. One’s right to States Government’s military policy, a dif- and effort taken to write to me, not be- life, liberty and property, to free speech, a ferent outcome could be a distinct possibil- cause we share the same perspective, free press, freedom of worship and assembly, ity. Whether the bandanna would be deemed but because the letter makes the very and other fundamental rights may not be a ‘‘flag’’ and the sweat-wiping considered submitted to vote; they depend on the out- desecration would very likely be directly re- important point that, in the final anal- come of no elections. lated to the relative popularity of the Presi- ysis, and as the proponents of the Yet, this amendment does exactly dent and the war being protested. That is amendment readily concede, the flag is that and subjects those fundamental where the flag amendment and the first but a symbol of this Nation. As I said amendment would bump into each other. rights to the outcome of elections. at the outset, Mr. President, we are not What comfort is a first amendment Mr. President, we are all free to draw a nation built on symbols; we are a na- which tells the American public that our own conclusions as to the validity tion built on principles. We will be paying false tribute to the the appropriateness of their political of Mr. Freedman’s hypothetical. I flag, in my opinion, if in our zeal to expression will be left up to the Gov- think it does a good job in pointing protect it we diminish the very free- ernment? out, in very simple terms, that which At the core of this proposed amend- the Supreme Court has often stated: doms it represents. The true promise of ment is the desire to punish that ex- You cannot divorce flag desecration this great and ever-evolving Nation is pression which is disrespectful. The from the political context in which it rooted in its Constitution. Ultimately, ability to accomplish this troubling occurs. Ultimately, value judgments the fulfillment of this promise lies in goal turns upon the interpretation that have to be made, and I think these are the preservation of this great docu- would be given to the term ‘‘desecra- judgments that this amendment, unfor- ment, not just of that which symbol- tion.’’ Mr. President, despite attempts tunately, reserves to the Government. izes it. If we sacrifice our principles, to argue that it means to ‘‘treat with For the first time in our history, it ultimately, our symbols will represent contempt’’ or ‘‘disrespect’’ or to vio- gives that judgment to the Govern- something less than they should. Therefore, Mr. President, I must re- late the ‘‘sanctity’’ of the flag, it is ment, not to individuals, not to the spectfully oppose this effort to amend just obvious that this is subject to in- citizens of this country. Mr. President, the rights at the heart the Bill of Rights. While I do not op- terpretation. The word ‘‘desecration’’ of this debate are far too fundamental pose this effort with anything less than could not be more subject to interpre- and far too important to be subjected the utmost respect for the American tation. It is almost an inherently to the uncertainty created by this flag, my belief that we must be vigilant vague term. amendment. We must not abandon 2 If, as the report accompanying this in our preservation of the Bill of centuries of free expression in favor of measure suggests, every form of dese- Rights and the individual freedoms an unwarranted and ill-defined stand- cration is not the target of this amend- found therein really dictates my oppo- ard which allows Government to ment, then it logically follows that the sition. choose whose political message is wor- Mr. President, to conclude, the meas- Government—the Federal Government thy of protection and whose is not. ure before us limits the Bill of Rights. —will make distinctions between types This is counter to the very freedoms It actually limits the Bill of Rights in of political expression, and the distinc- the flag symbolizes. an unprecedented, unwarranted, and tion will be this: that which is accept- The very idea that a handful of mis- ill-defined manner. As such, I intend to able and that which is not. The flaws in guided people could cause this Nation— oppose this resolution. this process should be obvious to every a Nation which has, from its inception, Mr. President, I ask unanimous con- American. been a beacon of individual liberty, and sent that a series of editorials from So long as your political expression a Nation which has defended, both at throughout the State of Wisconsin, all comports with that of the governing home and abroad, the right of individ- opposed to flag burning and also to this jurisdiction, you are going to have uals to be free—to retreat from the amendment, be printed in the RECORD. your freedom of expression, and it will fundamental American principle that There being no objection, the articles be preserved. We can certainly debate speech should not be regulated based were ordered to be printed in the this point, but in punishing only that upon its content is really cause for RECORD, as follows: expression which is ‘‘disrespectful,’’ great concern. [From the Wisconsin State Journal, June 14, someone—in this case the Govern- I cannot believe we are going to let a 1995] ment—has to decide what is disrespect- few people who are not even around, as OUR OPINION: FLAG BURNING AMENDMENT ful and what is not. far as we know, not even doing this UNPATRIOTIC For those of us who think that this is flag desecration, cow us into passing Today, Flag Day, is an occasion to cele- an easy distinction and there is not this amendment. That would give the brate liberty. And one of the best ways you going to be a problem deciding what is victory to the flag burners. It would be can celebrate liberty is to writer your con- desecration and what is disrespectful, I gressman to urge a vote against the proposed score one for the flag burners if we are have an example. A Vietnam war vet- constitutional amendment to ban flag burn- foolish enough to amend the Constitu- eran, a friend of mine from Wisconsin, ing. tion and Bill of Rights, for the first Marvin J. Freedman, recently wrote in It may seem unpatriotic to stand up for a time in our history, just to deal with right to burn the American flag. But the pro- an article, aptly entitled, ‘‘The Fabric such misguided people. posed amendment is not about whether it is of America Cannot Be Burned,’’ that Again, Mr. President, there is no patriotic to burn a flag. It is about whether the fatal flaw in this amendment will doubt that the American people care it is right to limit the liberties for which our be its application. In Mr. Freedman’s deeply about the flag. But I really be- flag flies. A true patriot would answer no. words: Consider: lieve they care just as deeply about the It’s futile, even counter-productive, to try The real potential for crisis is one of con- Constitution. I was recently contacted text. Consider the star spangled bandanna. to require patriotism by law. Let’s say a highly decorated veteran is plac- by a man from Sturgeon Bay, WI, a In fact, it would inspire greater respect for ing little American flags on the graves at a veteran of the Navy. What did he have our nation to refrain from punishing flag veterans cemetery for Memorial Day, works to say? He wrote: burners. As conservative legal scholar Clint up a sweat and wipes his brow with one of The most important part of the Constitu- Bolick of the institute for Justice told a those red, white, and blue bandannas. If the tion is the Bill of Rights, the first ten House subcommittee, we can lock up flag flag amendment were on the books, would amendments. The most important one of burners and by doing so make them martyrs, the veteran’s bandanna be deemed a ‘‘flag of those is the first amendment. Burning a flag, ‘‘or we can demonstrate by tolerating their the United States’’? Probably not. But if it in my opinion, is expressing an opinion in a expression, the true greatness of our repub- were, would his actions be interpreted as very strong way. While I may disagree with lic.’’ Laws to protect the flag would be unwork- ‘‘desecration’’? I cannot imagine anyone that opinion, I must support the right to ex- able. thinking so. press that opinion. To me, the first amend- The proposal now before the House seeks a Mr. Freedman continues: ment is the most important thing. The flag constitutional amendment to allow Congress However, if a bedraggled-looking antiwar is a symbol of that and all other rights, but and the states to pass laws banning physical protester wiped his brow with the same ban- only that, a symbol. desecration of the flag. It would require ap- danna after working up a sweat and denounc- My constituent, I think, said it quite proval by two-thirds of the House and Senate ing a popular President and the United well. I appreciated very much the time and three-fourths of the states. S 18260 CONGRESSIONAL RECORD — SENATE December 8, 1995 It’s called the flag burning amendment be- requiring everyone to actually sing along The flag protection amendment is trivial cause many of its supporters consider burn- when the national anthem is played at sports in that flag burning is not always and every- ing the flag to be the most egregious form of events? An amendment making attendance where a problem. If the amendment suc- desecration. at Memorial Day parades compulsory? ceeds, what else is out there to further But what counts as desecration of the flag? Sen. Howell Heflin, D–Ala., argues that the trivialize the document? What if someone desecrated something made flag unites us and therefore should be pro- Must the bald eagle be put under constitu- up to look like a flag with some flaw, like tected. But Heflin and like minded amend- tional protection if it is no longer an endan- the wrong number of stars or stripes? Does ment supporters are confusing cause and ef- gered bird? that count? What if a flag is used in art that fect. The flag is a symbol of our unity, not This is a ‘‘feel good’’ campaign. People feel some people consider rude or unpatriotic? the source of it. they accomplish something good by protect- Does that count as desecration? Banning flag burning is simply the flip side ing the flag from burning. (Isn’t the ap- The arguments could rage on and on, en- of the same coin that makes other shows of proved method of disposing of tattered flags riching lawyers and diminishing the nation. patriotism compulsory. What are the names to burn them, by the way?) A ban on flag burning would set a dan- of the countries that make shows of patriot- But it offers about the same protection to gerous precedent. ism compulsory? Try China. Iraq. The old flags that the 18th offered to teetotaling. The proposed amendment is a reaction to Soviet Union. If someone has a political statement to 1989 and 1990 Supreme Court rulings that in- Coerced respect for the flag isn’t respect at make and feels strongly enough, he’ll do the validated federal and state laws banning flag all, and an amendment protecting the Amer- burning and accept the consequences. The desecration. The court rules that peaceful ican flag would actually denigrate that flag. consequences surely will not be draconian flag desecration is symbolic speech, pro- Allegiance that is voluntary is something enough that flag burning would rank next tected by the First Amendment freedom of beyond price. But allegiance extracted by best thing to a capital offense. speech clause. statute—or, worse yet, by constitutional Congress has more pressing things to do Supporters of a ban on flag burning argue fiat—wouldn’t be worth the paper the than put time into this amendment. that burning a flag is not symbolic speech at amendment has drafted on. It is the very [From the Milwaukee (WI) Journal Sentinel, all but hateful action. But if today’s cause is fact that the flag is voluntarily honored that June 12, 1995] to ban flag burning because it is hateful ac- makes if a great and powerful symbol. tion, tomorrow’s cause may be to ban the The possibility of the Balkanization of the FLAG AMENDMENT ILL-ADVISED display of the Confederate flag because many American people into bickering special in- Probably nine-tenths of the knuckleheads people consider it to be hateful action. Or to terest groups based on ethnicity or gender or who get their jollies from burning the Amer- ban the use of racial or sexist comments be- age or class frightens all of us, and it’s ican flag or desecrating it in other ways have cause they amount to hateful actions. And tempting to try to impose some sort of arti- no idea what freedoms that flag symbolizes. on and on until we have given up our free- ficial unity. But can the flag unite us? No. Because these people are stupid as well as doms because we are intolerant. We can be united under the flag, but we can’t ungrateful, they never think about the pre- The right to protest is central to democ- expect the flag to do the job of uniting us. cious gift they have been given. racy. We oppose flag burning—or any other show The irony is that the American flag stands A democracy must protect the right to of disrespect for the American flag. There for, among other things, the freedom to ex- protest against authority, or it is hardly a are better ways to communicate dissent than press yourself in dumb and even insulting democracy. It is plainly undemocratic to trashing a symbol Americans treasure. But ways, like burning the flag. This is a freedom take away from dissenters the freedom to making respect for the flag compulsory literally not conferred on hundreds of mil- protest against authority by peacefully would, in the long run, decrease real respect lions of people. burning or otherwise desecrating a flag as for the flag. A few years ago, several states passed laws the symbol of that authority. The 104th Congress should put the flag that made it illegal to desecrate the flag, but If the protesters turn violent or if they burning issue behind it and move on to the in 1989 the Supreme Court ruled that such steal a flag to burn, existing laws can be nuts-and-bolts goal it was elected to pursue: statutes violated the Bill of Rights. Congress used to punish them. a smaller, less intrusive, fiscally responsible is now moving to amend the Constitution it- Flag burners are not worth a constitu- federal government. A constitutional amend- self, so that flag desecration laws can be en- tional amendment. ment protecting the flag runs precisely acted. A good rule of thumb about amending the counter to that goal. That movement is as ill-considered as it is U.S. Constitution is: Think twice, then think understandable. The Constitution should be twice again. Flag burning is not an issue [From the Oshkosh (WI) Northwestern, May amended only reluctantly and rarely, when a that merits changing the two-centuries-old 28, 1995] genuine threat to our nation emerges and blueprint for our democracy. when there is no other way to guard against BEWARE TRIVIALIZING OUR CONSTITUTION This nation’s founding fathers understood it. the value of dissent and, moreover, the value It is difficult to come out against anything That is why the founding fathers made it of the liberty to dissent. So should we. so sacrosanct as the American flag amend- so difficult to revise the Constitution, and ment—difficult but not impossible. why, as a Justice Department spokesman OUR VIEW: THE AMERICAN FLAG—OLD GLORY An amendment to protect the flag from pointed out the other day, the Bill of Rights DOESN’T NEED AMENDMENT desecration is before Congress and has all has not been amended since it was ratified in [From the La Crosse (WI), Tribune, June 7, the lobbying in its favor. 1792. 1995] The trouble is, it is an attempt to solve, The unpatriotic mischief of adolescent The U.S. Supreme Court ruled in a Texas through the Constitutional amendment proc- punks is infuriating. But it is not a serious case in 1989 that flag burning is protected by ess, a problem that really is not a problem. enough act to warrant revision of the na- the First Amendment as a form of speech. Flag burning is not rampant. It occurs oc- tion’s charter. The Bill of Rights exists to The court’s decision didn’t go over very casionally; it brings, usually, society’s scorn protect people whose behavior, however re- well with friends of Old Glory then, and six upon the arsonist, and does no one any harm, pugnant, injures nothing but people’s feel- years later that ruling still sticks in the except the sensitivities of some. ings. craw of many patriots—so much so that con- These sensitivities give rise to the effort to The American flag protects even people stitutional amendments protecting the flag abridge the freedom of expression guaran- who burn it; it prevails over both them and against desecration have picked up 276 co- teed by the First Amendment, which has their abuse. That is one of the reasons the sponsors in the U.S. House of Representa- been held by the courts to include expres- flag and the nation it stands for are so tives and 54 in the Senate. sions of exasperation with government by strong. The House Judiciary Committee takes up burning its banner. Mr. KYL addressed the Chair. At worst, this flag protection is an opening the amendment today, with a floor vote ex- The PRESIDING OFFICER (Mr. GOR- pected on June 28. The Senate Judiciary wedge in trimming away at the basic rights of all Americans to criticize its leaders. That TON). The Senator from Arizona. Committee tackled a similar amendment on Mr. KYL. Mr. President, I would like Tuesday. right was so highly esteemed by the Found- For two centuries soldiers have given their ing Fathers that they made free speech vir- to respond briefly to the remarks of lives to keep the American flag flying. It is tually absolute. the Senator from Wisconsin and other a symbol of freedom and hope for millions. At best, the flag protection amendment arguments in opposition to this pro- That is what infuses the stars and stripes trivializes the Constitution. posed amendment and to speak briefly with meaning and inspires the vast majority That is no small consideration. The Con- in favor of the amendment. Senator of Americans to treat it with respect. stitution was trivialized once before. The ROTH from Delaware is here to speak to But to take away the choice in the matter, prohibition amendment had no business an important subject as well. So what to make respect for the flag compulsory, di- being made a constitutional chapter. It was minishes the very freedom represented by not of constitutional stature. It could have I will do is truncate my remarks, and the flag. been done by statute alone. Its repeal showed Senator HATCH will be here a little bit Do we follow a constitutional amendment that it was a transitory matter rather than later to speak at greater length on the banning flag desecration with an amendment being one of transcendent, eternal concern. constitutional amendment. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18261 Mr. President, I think we need to became the 11th of 49 States to ‘‘urge It seems to me opponents cannot start with some fundamentals. I have Congress of the United States to pro- argue on the one hand that this is in- never questioned the sincerity, or the pose an amendment to the U.S. Con- significant, never happens, why are you judgment, or reasoning, or conclusions, gress, for ratification by the States, worrying about it, and on the other even, of those who oppose a constitu- specifying that the Congress and the hand say it would be the biggest trav- tional amendment on desecration of States shall have the power to prevent esty and impingement on free speech to the flag. There are very sound con- the physical desecration of the flag of be visited on the U.S. Constitution and stitutional arguments on both sides of the United States.’’ the people of America. this issue. It is one of those classical I also note that the decision of the You cannot have it both ways. The issues on which people on both sides Supreme Court invalidated the law truth of the matter is it is true that can marshal evidence, historical com- that then-Governor Clinton had signed this is not a big problem, but it does mentary, and reasoning to support months earlier which prohibited the in- not follow from that that we should their views. In my view, it is not an tentional desecration of the flag, not offer the States the ability to re- easy question to resolve. But I do take though the President now opposes this store the protection of the flag that it some offense at the suggestion that particular amendment. enjoyed for 200 years. Mr. President, 49 those who propose the amendment— The House passed a companion meas- States seem to think this is important just to use one quotation used before— ure to that which is being considered enough to have memorialized Congress, are involved in misguided rhetoric, and here, on June 28, by a vote of 312 to 120. asking for the ability to once again re- terminology of that sort. We can dis- This has bipartisan support. The Sen- store that protection. agree over something of this impor- ate Judiciary Committee, with equally Now, the passing of a constitutional tance, without suggesting that those bipartisan support, approved the amendment would not prevent those who hold a different view are dan- amendment on July 20 by a vote of 12 who hate America or who have particu- gerous, misguided, or simply engaged to 6. lar grievances from expressing this The purpose of this resolution is to in rhetoric. contempt through any other speech or I think, to some extent, that while restore the authority to adopt statutes even certain conduct as the Supreme nothing—except perhaps declaring protecting the U.S. flag from physical Court has permitted. You do not have desecration. As I said, it is not a choice war—is a more solemn right and re- to burn the flag to express your views. between the flag and the Constitution. I suggest in civilized society people sponsibility of the Congress than We proved for 200 years that both are should be able to express themselves in amending the Constitution, it is also possible to protect. ways that are not so personally and possible that some in Congress, from The flag is worthy of protection. It is viscerally offensive, for example, to a time to time, become consumed by a unique national symbol, representa- family grieving over the flag-draped their own importance. It is easy to do. tive, among other things, of the men coffin of a loved one. Yet, I think it is equally important for and women who have served this coun- Mr. President, let me just conclude us to recognize that we do not amend try. It is draped over the coffins of by quoting from some people who have the Constitution, that while it is im- those who have paid the ultimate price spoken to this issue before in a way portant for us to raise all of these ques- to preserve our freedom and invokes which I think is instructive. This is not tions and to debate this as solemnly as very strong emotions in all Americans. misguided rhetoric by extremists or we can, that we do not amend the Con- It is important to protect the symbol superpatriots. I refer, Mr. President, to stitution, Mr. President. The people for these reasons. the words of Chief Justice Earl Warren, amend the Constitution. All we can do You cannot burn or deface other na- an eminently respected jurist of this is recommend an amendment. It is the tional symbols which have far less country: ‘‘I believe that the States and people who make the ultimate deci- emotional symbolic value than the the Federal Government do have the sion. flag, but we allow it because the Su- power to protect the flag from acts of To put it in the simplest terms, what preme Court said a few years ago we desecration and disgrace.’’ we are suggesting is we ask the Amer- would allow the desecration of the flag. A famous liberal jurist, a man great- ican people: Do you want to amend the This resolution, frankly, is in direct ly respected on the Supreme Court of Constitution to protect the flag? If the response to the Texas versus Johnson the United States, Justice Hugo Black: people say no, then it will not happen; decision in Texas of the Supreme It passes my belief that anything in the if the people say yes, I suggest that we Court. It was a 5-to-4 decision. So lit- Federal Constitution bars a State from mak- should rely upon their judgment in this erally, one unelected judge decided ing the deliberate burning of the American matter, the very people who, after all, that a law that had existed for over 200 flag an offense. It is immaterial that the elect us to represent them in all other years was now mysteriously unconsti- words are spoken in connection with the matters except amending the Constitu- tutional. burning. It is the burning of the flag that the tion, which under our document is re- The Court later ruled in United State has set its face against. served to the people for final decision. States versus Eichman that Congress And Justice Abe Fortas, a respected I think we have to put some trust in could not by statute protect the flag liberal, a Democrat, not an extremist the American people here to do the making it very clear that our only re- conservative patriot: ‘‘* * * the States right thing. sponse could be a proposed constitu- and the Federal Government have the It is interesting to me that histori- tional amendment. power to protect the flag from acts of cally in this country for 200 years we Mr. President, I am not going to re- desecration * * *.’’ got along very well living under a Con- spond to each of the arguments made Let me quickly also demonstrate this stitution that protected free speech, because Senator ROTH has some impor- point further by noting the names of and yet in 49 of the 50 States, pre- tant things to say on another subject. many respected members of the Demo- vented desecration of the flag. This is Let me just respond to a couple. cratic Party who have sponsored or not a choice between protecting the One of the arguments and probably voted for this amendment. This is not flag and the U.S. Constitution, as was the key argument of the proponents is a partisan issue, as I said: 93 House suggested a moment ago. That is a that we would be trampling on the Democrats voted for the flag amend- false choice. For 200 years we did both. right of free speech by adopting this ment, including RICHARD GEPHARDT the We can do both. amendment. I understand that argu- minority leader, Deputy Whips BILL Since the decision of the Supreme ment. It is not a frivolous argument. RICHARDSON and CHET EDWARDS, and a Court which struck down the protec- The argument of some opponents host of other ranking and subcommit- tion of the flag, 49 States, including my that flag burning is a nonproblem be- tee members and key members of the State of Arizona, have passed memori- cause it is hardly ever done and there- Democratic Party. Democrats and Re- alizing resolutions calling on Congress fore why would we even want to bother publicans alike, liberals and conserv- to pass a flag desecration amendment with this, I think is a good argument atives, can appreciate the importance so that the States could consider it. against the notion that this would be a of doing this. In 1991, Arkansas, while President significant intrusion on the first And the final argument that was Clinton was still serving as Governor, amendment. made that these words are so subject to S 18262 CONGRESSIONAL RECORD — SENATE December 8, 1995 interpretation, ‘‘desecration’’ and Mr. President, that sacrifice could building blocks in, you can have a 2- ‘‘flag’’—who knows what ‘‘flag’’ means? never be put adequately into words, year limit on welfare as we know it. Mr. President, the American experi- but the flag symbolizes perfectly what You would end the system as it now ex- ence of 200-plus years teaches us what words cannot describe. And it is that ists.’’ the word ‘‘flag’’ means, and ‘‘desecra- symbol that we see when we go to the Mr. President, that is a strong state- tion’’ has meaning which can be inter- monument just a couple of miles south ment and a bold challenge. H.R. 4, the preted by judges of good will. of here and see the flag being raised ‘‘Personal Responsibility and Work Op- The Bill of Rights and the 14th over Mt. Suribachi that recalls so portunity Act of 1995,’’ meets this first amendment to the U.S. Constitution many memories and evokes so many principle. We require people to work are filled with general statements emotions among Americans, that we after 2 years and place a 5-year limit which the Framers of the Constitution come to the conclusion that this one on the receipt of Federal benefits. Let and of the 14th amendment clearly un- very special symbol of America and ev- me repeal this. We provide not a 2-year derstood need to be phrased relatively erything for which it stands should re- limit on benefits, but a 5-year limit. generally in order to deal with the va- ceive minimal protection by the people And, I might add, the conference report riety of circumstances to which they of the United States. That is why I on H.R. 4 allows the States to exempt would be applied. Words like ‘‘estab- urge my colleagues to follow the lead up to 15 percent of their caseload from lishment of religion,’’ ‘‘unreasonable of the House of Representatives and this limit. searches and seizures,’’ leaving ‘‘unrea- submit this question to the people of The President’s support for time lim- sonable’’ to the interpretation of the the United States to determine wheth- its, by the way, is one of the many iro- courts. ‘‘Due process of law’’—I can er or not they want to amend the Con- nies throughout the welfare reform de- hear the arguments now. What do you stitution to protect the flag from dese- bate. A good deal of attention has been mean by ‘‘due process’’? What do you cration. focused on the analysis done by the De- mean by ‘‘just compensation,’’ by Mr. President, I yield the floor to partment of Health and Human Serv- ‘‘speedy trial’’? You need to define it. Senator ROTH. At the time that Sen- ices on the impact the various welfare Mr. President, one of the geniuses of ator HATCH comes, he will speak fur- bills would have on families and chil- the Constitution is that it is not de- ther to the issue of the flag. dren. The single greatest reason fami- fined with all of the precision that we The PRESIDING OFFICER. The Sen- lies would become ineligible for bene- apply to legislation, to laws, and the ator from Delaware. fits is the 5 year limit. It is a bit incon- even greater precision that is applied Mr. ROTH. Mr. President, first of all, sistent for the President to embrace a to regulations to execute those laws. let me express my appreciation to the time limit but invite criticism of our That is the genius of the Constitution. distinguished Senator from Arizona for So, all of the generalized phrases, the proposal for a 5-year limit on benefits. his courtesy and compliment him on ‘‘cruel and unusual punishment,’’ The second principle, as outlined by his most eloquent statement. ‘‘equal protection of the laws,’’ and the President, is ‘‘we need to make Mr. President, I ask unanimous con- work pay.’’ The President indicated, other generalized statements have sent to speak as in morning business. served us very well for over 200 years. that through the earned income credit The PRESIDING OFFICER. Without program, ‘‘we ought to be able to lift Certainly for words like ‘‘flag,’’ which I objection, it is so ordered. suggest has a pretty specific meaning, people who work 40 hours a week, with f and even ‘‘desecration,’’ which is less kids in their home, out of poverty.’’ so, it is possible to interpret those WELFARE REFORM The Republican balanced budget plan words in a meaningful and consistent is consistent with this second principle Mr. ROTH. Mr. President, there are outlined by the President. Under our way, particularly, as was noted earlier, alarming signals coming from the if we amend the proposal here to pro- plan, the EIC continues to grow. We White House that President Clinton are targeting the EIC program to those vide for the Federal Government, the may veto welfare reform. Instead of Congress, rather than the States, to most in need. ending welfare as we know it, the Ad- The administration has criticized the adopt the legislation that would pro- ministration apparently intends to vide for the protection of the flag. Balanced Budget Act for its provisions continue politics as usual. on EIC. But I believe it is both fair and So, much more will be said about this From the early days of his adminis- amendment. Senator HATCH will be accurate to point out that in expanding tration, President Clinton promised the EIC, the Clinton administration here in a moment to discuss the welfare reform to the American people. amendment in more detail, to explain and the Democratic 103d Congress went On February 2, 1993, he told the Na- far beyond the President’s stated goal the reasons why the Judiciary Commit- tion’s Governors that he would an- tee was able to pass it out with such an as well as beyond the original goals of nounce the formation of a welfare re- this program. For example, they ex- overwhelming majority. form group within 10 days to work with I am going to close by quoting from panded the credit to individuals who the Governors to develop a welfare re- did not have children at home. Chief Justice Rehnquist in his dissent- form plan. At that meeting, the Presi- ing opinion from the decision in the We have found unacceptable levels of dent outlined four principles which errors, abuse, and waste in this pro- Texas versus Johnson case, which pre- would guide his administration to re- cluded the Congress and the States gram. Spending for the EIC is quite form welfare. simply out of control. We have pro- from any longer protecting the flag. I The first principle as outlined by the posed a responsible and reasonable re- think these words are appropriate as President is that ‘‘welfare should be a form of the EIC program separate from we think about the possibility that second chance, not a way of life.’’ In H.R. 4. Our welfare bill does not con- American soldiers will again be sent to further defining what these means, the flict with the President’s principle on foreign lands to fight, and the concern President stated that people should work. for those people who we put in harm’s work within 2 years and that, ‘‘there The third principle of welfare reform way, people who defend the ideals of must be—a time-certain beyond which outlined by President Clinton some 34 our country. It is appropriate to reflect people don’t draw a check for doing months ago is that tougher child sup- upon the value of the flag as a symbol nothing when they can do something.’’ port enforcement is needed. H.R. 4 fully to those people. On July 13, 1993, President Clinton Let me quote again, as I said, from meets this principle. In an October 18, went even further and told the Na- the dissenting opinion of Justice 1995 letter, the Director of the Office of tional Association of County Officials Rehnquist in Texas versus Johnson. He Management and Budget informed the that a 2-year limit could be put on wel- said: majority leader that: fare. He said, ‘‘you shouldn’t be able to At Iwo Jima, United States Marines fought stay on welfare without working for The Administration strongly supports bi- hand to hand against thousands of Japanese. partisan provisions in both the House and By the time the Marines reached the top of more than a couple of years. After Senate bills to streamline paternity estab- Mt. Suribachi they raised a piece of pipe up- that, you should have to work and earn lishment, require new hire reporting, estab- right and from one end fluttered a flag. That income just like everybody else.’’ He lish State registries, make child support ascent had cost nearly 6,000 lives. went on to say, ‘‘And if you put the laws uniform across State lines, and require December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18263 States to use the threat of denying drivers’ on work. Establishing performance food stamps and welfare checks to em- and professional licenses to parents who standards is a subject which I have per- ployers as a wage supplement. If it is refuse to pay child support. sonally worked on for years. H.R. 4 in- good policy as a waiver, it is good pol- Clearly H.R. 4 meets the President’s cludes work-based performance stand- icy to allow Governors to accept an op- position on child support enforcement. ards. tional block grant. The fourth principle outlined by the It is clear we have responded posi- Another important area of reform is President was his commitment to en- tively to all of these concerns. the Supplemental Security Income courage experimentation in the States. The President also indicated he was Program. The SSI Program was estab- To his credit, his administration has willing to give the States more flexibil- lished 21 years ago principally to pro- approved a number of waivers to allow ity in child nutrition, adoption, and vide a welfare retirement program for the States the flexibility to experi- child protective services. H.R. 4 pro- aged and disabled adults who were un- ment. But waivers are not enough as tects the current entitlements of foster able to contribute enough into the So- the President himself, as a former Gov- care and adoption assistance mainte- cial Security system. With this purpose ernor, realizes. nance payments. Between 1995 and 2002, in mind, one would think that the cost When he spoke to the Governors funding for foster care will increase by of this program should at least be sta- again this year on June 6, in Balti- nearly 80 percent. Funding for child nu- ble as the elderly SSI population has more, the President told the Gov- trition will increase from less than $8 actually declined by more than one- ernors, billion in fiscal year 1995 to over $11 third since 1974. You could not design a program that would billion in 2002. Instead, SSI is the largest cash as- be too tough on work for me. You could not These are the fundamental principles sistance program for the poor and one design a program that would give the States the President outlined to the Gov- of the fastest growing entitlement pro- any more flexibility than I want to give ernors and to the Nation. Congress will them as long as we recognize that we . . . grams. Programs costs have grown 20 have a responsibility to our children and to shortly send a welfare reform bill percent annually in the last 4 years. that in the end, our political and economic which meets these principles. It would The SSI reforms in H.R. 4 are de- policies must reinforce the culture we are be regrettable if the President walks signed to slow the growth in the two trying to create. They must be pro-family away from all of these things which he populations which have seen tremen- and pro-work. so recently pledged. dous increases in recent years, At the same time, President Clinton The need to reform the welfare sys- noncitizens and children. In 1982, also told the Governors that, ‘‘we can tem is as critical today as it was near- noncitizens constituted 3 percent of all save some money and reduce the defi- ly 3 years ago when the President took SSI recipients. In 1993, noncitizens con- cit in this welfare area.’’ office. The number of children receiv- stituted nearly 12 percent of the entire Then, on July 20 this year, he told ing AFDC increased nearly threefold SSI caseload. From 1986 through 1993, the National Conference of State Leg- between 1965 and 1993. By comparison, the number of aged or disabled islatures that ‘‘what I want to do in the total number of children in the noncitizen recipients grew an average the welfare reform debate is to give United States aged 0 to 18 declined by of 15 percent annually, reaching nearly you the maximum amount of flexibil- 5.5 percent during this period. 700,000 in 1993. Today, almost one out of ity, consistent with some simple objec- In 1965, the average monthly number every four elderly SSI recipients is a tives. I do think the only place we need of children receiving AFDC was 3.3 mil- noncitizen. GAO calculates that Federal rules and welfare reform * * * lion; in 1970, it was 6.2 million; in 1980, noncitizens are actually more likely to is in the area of child support enforce- it was 7.4 million; and in 1993, there receive SSI than citizens. The majority ment because so many of those cases were nearly 9.6 million children receiv- of these elderly noncitizens, 57 percent, cross State lines.’’ ing AFDC benefits. have been in the United States less The President went on to say, ‘‘so I The Department of Health and than 5 years. am going to do my best to get you a Human Services has estimated that 12 In total, our reforms directed at welfare reform proposal which gives million children will receive AFDC noncitizens will save the taxpayers more flexibility to the States and benefits by the year 2005 under current more than $20 billion. If President Clin- doesn’t have a lot of ideological pro- law. If he vetoes welfare reform, Presi- ton vetoes H.R. 4, these savings will be scriptions * * * and just focuses on one dent Clinton will be accepting the sta- lost. or two big things that need to be done. tus quo in which another two and one- According to the General Accounting I think that is the right way to do it.’’ half million children will fall into the Office, the growth in the number of dis- Mr. President, we will provide the op- welfare system. abled children receiving cash payments portunity to make good on these If the President vetoes welfare re- under SSI was moderate before 1990, words. form, he will be preserving a system averaging 3 percent annually between The President has told the Governors which costs and wastes billions of tax- 1984 and 1990. Then, from the beginning he wants to protect the States even payers dollars. The General Accounting of 1990 through 1994, the growth aver- when there is an economic downturn. Office has estimated, for example, that aged 25 percent annually, and the num- We have done this with an $800 million nearly $1.8 billion in overpayments ber tripled to nearly 900,000. Their contingency fund and a $1.7 billion loan were made in the Food Stamp Program share of the disabled SSI population fund. President told them he wanted in 1993 alone. grew from about 12 percent before 1990 funding for child care. H.R. 4 provides A critical point of welfare reform is to 22 percent in 1994. The number of $17 billion for child care for welfare and to give the States both the authority children who are disabled and receive low-income families. This is over $700 and the responsibility for efficiently, benefits has increased by 166 percent million more than under current law. compassionately, and effectively ad- just since 1990. He told the Governors the problem ministering these programs. As a I would remind my colleagues that with a block grant was that States former Governor, the President surely the changes in the definition of child- would cut their own funding and there- knows well the duplication in the de- hood disability included in H.R. 4 was fore he wanted requirements for States livery of benefits. It costs over $6 bil- adopted on a bipartisan basis. to maintain their own funding. H.R. 4 lion just to administer the AFDC and The conference agreement maintains imposes such requirements. Further- Food Stamp Programs. When you in- the commitment to children who are more, the conference agreement pro- clude the cost of errors, fraud, and disabled. All children currently receiv- vides $3.5 billion in more funding for abuse in these two programs, another ing SSI benefits will continue to re- the block grants to States for tem- $3 billion is wasted. ceive the full cash benefit to which porary assistance for needy families We have therefore proposed an op- they are entitled through January 1, than under the Senate bill which tional block grant for the Food Stamp 1997. passed 87–12. Program. At a town meeting this past The conference report increases Fed- The President indicated his interest June, the President told the people of eral spending on welfare programs. Ex- in a performance bonus which forces New Hampshire that his administra- penditures for the programs under H.R. the bureaucracy and recipients to focus tion has given 29 states waivers to use 4 totaled $83.2 billion in 1995. Under S 18264 CONGRESSIONAL RECORD — SENATE December 8, 1995 H.R. 4, they will increase by one-third FLAG DESECRATION lands reserved for the use of the United to total $111.3 billion in 2002. Between CONSTITUTIONAL AMENDMENT States, or under the exclusive or concurrent jurisdiction of the United States, steals or 1995 and 2002, total expenditures for The Senate continued with the con- these programs will be $753.7 billion. knowingly converts to his or her use, or to sideration of the joint resolution. the use of another, a flag of the United The conference report also provides Mr. MCCONNELL. Mr. President, on States belonging to another person, and in- support for other areas in which the Monday I will be offering an amend- tentionally destroys or damages that flag President has indicated support. The ment in the nature of a substitute to shall be fined not more than $250,000 or im- President has called for action to pre- the underlying proposed constitutional prisoned not more than 2 years, or both. vent teen pregnancies. We provide $75 amendment, and I ask unanimous con- ‘‘(d) CONSTRUCTION.—Nothing in this sec- tion shall be construed to indicate an intent million for abstinence education. sent that this amendment appear in on the part of Congress to deprive any State, The President has called for tough the RECORD at this point. It will be co- territory or possession of the United States, child support enforcement. Our welfare sponsored by Senator BENNETT of Utah, or the Commonwealth of Puerto Rico of ju- reform bill includes significant im- Senator DORGAN, and Senator BUMP- risdiction over any offense over which it provements in child support enforce- ERS. would have jurisdiction in the absence of ment which will help families avoid There being no objection, the amend- this section. ment was ordered to be printed in the ‘‘(e) DEFINITION.—As used in this section, and escape poverty. the term ‘flag of the United States’ means RECORD, as follows: The failure of an absent parent to any flag of the United States, or any part pay child support is a major reason the PROPOSED AMENDMENT thereof, made of any substance, in any size, number of children living in poverty Strike all after the enacting clause and in- in a form that is commonly displayed as a serting the following: has increased. Between 1980 and 1992, flag and would be taken to be a flag by the reasonable observer.’’. the nationwide child support enforce- SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Flag Protec- (b) CLERICAL AMENDMENT.—The table of ment caseload grew 180 percent, from tion and Free Speech Act of 1995’’. sections for chapter 33 of title 18, United 5.4 to 15.2 million cases. The sheer SEC. 2. FINDINGS AND PURPOSE. States Code, is amended by striking the item relating to section 700 and inserting the fol- growth in the caseload has strained the (a) FINDINGS.—The Congress finds that— system. (1) the flag of the United States is a unique lowing new item: symbol of national unity and represents the ‘‘700. Incitement; damage or destruction of There have been improvements in the property involving the flag of child support enforcement system as values of liberty, justice, and equality that make this Nation an example of freedom un- the United States.’’. collections have increased to $10 billion Amend the title so as to read: ‘‘A joint res- matched throughout the world; olution to provide for the protection of the per year, but we clearly need to do bet- (2) the Bill of Rights is a guarantee of flag of the United States and free speech, and ter. The House and Senate have in- those freedoms and should not be amended in for other purposes.’’. cluded a number of child support en- a manner that could be interpreted to re- forcement reforms. These include ex- strict freedom, a course that is regularly re- Mr. MCCONNELL. Mr. President, pansion of the Federal Parent Locator sorted to by authoritarian governments every single Senator believes in the Service, adoption of the Uniform Inter- which fear freedom and not by free and sanctity of the American flag. It is our state Family Support Act—UIFSA— democratic nations; most precious national symbol. The (3) abuse of the flag of the United States use of Social Security numbers for flag represents the ideas, values and causes more than pain and distress to the traditions that unify us as a people and child support enforcement, improve- overwhelming majority of the American peo- ments in administration of interstate ple and may amount to fighting words or a as a nation. Brave men and women cases, new hire reporting, and report- direct threat to the physical and emotional have fought and given their lives and ing arrearages to credit bureaus. Our well-being of individuals at whom the threat are now entering a war-torn region in conference report provides increased is targeted; and defense of the freedom and way of life funding for child support data automa- (4) destruction of the flag of the United that our flag represents. tion. States can be intended to incite a violent re- For all these reasons, those who dese- sponse rather than make a political state- crate the flag deserve our contempt. As I have already mentioned, these ment and such conduct is outside the protec- After all, when they defile the flag, provisions have been endorsed by the tions afforded by the first amendment to the they dishonor America. But the issue administration. Let me also note that I United States Constitution. before this body is: How do we appro- recently received a letter from the (b) PURPOSE.—It is the purpose of this Act priately deal with the misfits who burn American Bar Association in which the to provide the maximum protection against the use of the flag of the United States to the flag? ABA states it ‘‘strongly supports the promote violence while respecting the lib- Many of my colleagues who support a child support provisions in the con- erties that it symbolizes. constitutional amendment to ban flag- ference report.’’ The letter goes on to SEC. 3. PROTECTION OF THE FLAG OF THE UNIT- burning say the only way to ensure say, ‘‘If these child support reforms are ED STATES AGAINST USE FOR PRO- flag-burners get the punishment they MOTING VIOLENCE. enacted, it will be an historic stride deserve is to amend the Bill of Rights forward for children in our nation.’’ If (a) IN GENERAL.—Section 700 of title 18, United States Code, is amended to read as for the first time in over 200 years. The the President vetoes welfare reform, he first amendment, which they propose will forfeit this historic opportunity. follows: ‘‘§ 700. Incitement; damage or destruction of to alter, contains our most fundamen- On January 24, 1995 President Clinton property involving the flag of the United tal rights: free speech, religion, assem- declared at a joint session of Congress, States bly, and the right to petition the Gov- ‘‘Nothing has done more to undermine ‘‘(a) ACTIONS PROMOTING VIOLENCE.—Any ernment. The freedoms set forth in the our sense of common responsibility person who destroys or damages a flag of the first amendment, arguably, were the than our failed welfare system. United States with the primary purpose and foundation on which this great Repub- Mr. President, vetoing welfare reform intent to incite or produce imminent vio- lic was established. lence or a breach of the peace, and in cir- will seriously undermine the American Amending the Constitution was made cumstances where the person knows it is rea- an arduous process by the Founding people’s confidence in our political sys- sonably likely to produce imminent violence tem. The American people know the or a breach of the peace, shall be fined not Fathers for good reason. The require- welfare system is a failure. They are more than $100,000 or imprisoned not more ments—approval by two-thirds of each also tired of empty rhetoric from poli- than 1 year, or both. House of Congress and ratification by ticians. Words without deeds are mean- ‘‘(b) DAMAGING A FLAG BELONGING TO THE three-fourths of the State legisla- ingless. The time to enact welfare re- UNITED STATES.—Any person who steals or tures—ensure that highly emotional is- form is now. knowingly converts to his or her use, or to sues of the day will not tear at the fab- the use of another, a flag of the United Mr. President, I yield the floor. ric of the Constitution. Since the addi- States belonging to the United States and tion of the Bill of Rights, the Constitu- intentionally destroys or damages that flag Mr. MCCONNELL addressed the tion has been amended on only 17 occa- Chair. shall be fined not more than $250,000 or im- prisoned not more than 2 years, or both. sions. The PRESIDING OFFICER. The Sen- ‘‘(c) DAMAGING A FLAG OF ANOTHER ON FED- Let me repeat, Mr. President, after ator from Kentucky. ERAL LAND.—Any person who, within any the initial 10 amendments known as December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18265 the Bill of Rights, we have altered the versus Johnson (1989) and U.S. versus Chaplinsky * * * [and it] also avoids Constitution only 17 times in the his- Eichman (1990). content-based discrimination which is tory of our country. In Johnson, the defendant violated a generally frowned on by the First And only one of those amendments— Texas law banning the desecration of a Amendment.’’ prohibition—actually constricted free- venerated object, including the flag, in Mr. President, several other constitu- dom, and it was soon repealed. The 22d a way that will offend—offend, Mr. tional specialists also agree that this amendment also restricts freedom by President—one or more persons. John- initiative will withstand constitutional limiting the President to two terms, son took a stolen flag and burned it as challenge. A memo by Robert Peck, but we will have the term limits debate part of a political protest staged out- and Prof. Robert O’Neil and Erwin another day. side the 1984 Republican Convention in Chemerinsky concludes that the The proposed constitutional amend- Dallas. The State of Texas argued that amendment ‘‘conforms to constitu- ment before us does just that—it rips its interest in enforcing the law cen- tional requirements in both its purpose the fabric of the Constitution at its tered on preventing breaches of the and its provisions.’’ very center: the first amendment. peace. Mr. President, I ask unanimous con- Our respect and reverence for the flag But the Government, according to sent that the CRS memos, the Bruce should not provoke us to cause damage the Supreme Court, may not—may Fein letter, and the legal memo from to the Constitution, even in the name not—‘‘assume every expression of a Robert Peck, Professors O’Neil and of patriotism. provocative idea will incite a riot Chemerinsky, and Johnny Killian be Mr. President, I seek no protection, * * *.’’ Johnson, according to the printed in the RECORD at this point. no safe harbor, no refuge for those who Court, was prosecuted for the expres- There being no objection, the mate- heap scorn on our Nation by desecrat- sion of his particular ideas: dissatisfac- rial was ordered to be printed in the ing the flag. tion with Government policies. And it RECORD, as follows: The only thing that those who pro- is a bedrock principle underlying the GREAT FALLS, VA, October 21, 1995. vocatively burn the flag deserve is first amendment, said the Court, that Senator MITCH MCCONNELL, swift and certain punishment. U.S. Senate, Russell Senate Office Building, an individual cannot be punished for Washington, DC. Therefore, the statutory amendment expressing an idea that offends. I re- DEAR SENATOR: This letter responds for I have proposed would ensure that acts peat, the Court said you cannot be pun- your request for an appraisal of the constitu- of deliberately confrontational flag- ished for engaging in offensive speech. tionality of the proposed ‘‘Flag Protection burnings are punished with stiff fines The Johnson decision started a na- and Free Speech Act of 1995.’’ I believe it eas- and even jail time. tional debate on flag-burning and as a ily passes constitutional muster with flying My amendment will prevent desecra- result, Congress, in 1989, enacted the banners or guidons. The only non-frivolous constitutional tion of the flag and at the same time, Flag Protection Act. In seeking to question is raised by section 3(a). It protect the Constitution. safeguard the flag as the symbol of our criminalizes the destruction or damaging of Those malcontents who desecrate the Nation, Congress took a different tack the flag of the United States with the intent flag do so to grab attention for them- from the Texas Legislature. The Fed- to provoke imminent violence or a breach of selves and to inflame the passions of eral statute simply outlawed the muti- the peace in circumstances where the provo- patriotic Americans. And, speech that lation or other desecration of the flag. cation is reasonably likely to succeed. In incites lawlessness or is intended to do But in Eichman, the Supreme Court Chaplinsky v. New Hampshire (1942), the Su- so, the Supreme Court has made abun- preme Court upheld the constitutionality of found congressional intent to protect laws that prohibit expression calculated and dantly clear, merits no first amend- the national symbol insufficient—in- likely to cause a breach of the peace. Writ- ment protection. From Chaplinsky’s sufficient—to overcome the first ing for a unanimous Court, Justice Frank ‘‘fighting words’’ doctrine in 1942 to amendment protection for expressive Murphy explained that such ‘‘fighting’’ Brandenburg’s ‘‘incitement’’ test in conduct exhibited by flag-burning. words ‘‘are no essential part of any expo- 1969 to Wisconsin versus Mitchell’s The Court, however, clearly left the sition of ideas, and are of such slight social ‘‘physical assault’’ standard in 1993, the door open for outlawing flag-burning value as a step to truth that any benefit that Supreme Court has never protected that incites lawlessness. The Court may be derived from them is clearly out- weighed by the social interest in order and speech which causes or intends to said: ‘‘the mere destruction or dis- morality.’’ cause physical harm to others. figurement of a particular physical In Brandenburg v. Ohio (1969), the Court And, that, Mr. President, is the basis manifestation of the symbol, without concluded that the First Amendment is no for this amendment, that I am discuss- more, does not diminish or otherwise bar to the punishment of expression ‘‘di- ing. My amendment outlaws three affect the symbol itself in any way.’’ rected to inciting or producing imminent types of illegal flag desecration. First, But, Mr. President, you do not have lawless action and is likely to incite or produce such action.’’ anyone who destroys or damages a U.S. to take my word on it. The Congres- In holding flag desecration statutes uncon- flag with a clear intent to incite immi- sional Research Service has offered stitutional in Texas v. Johnson (1989), the nent violence or a breach of the peace legal opinions to Senators BENNETT Court cast no doubt on the continuing vital- may be punished by a fine of up to and CONRAD concluding that this ini- ity of Brandenburg and Chaplinsky as applied $100,000, or up to 1 year in jail, or both. tiative will withstand constitutional to expression through use or abuse of the Second, anyone who steals a flag that scrutiny: flag. See 491 U.S. at 409–410. belongs to the United States and de- ‘‘The judicial precedents establish Section 3(a) falls well within the protec- tive constitutional umbrella of Brandenburg stroys or damages that flag may be that the [amendment]’’—referring to and Chaplinsky. It prohibits only expressive fined up to $250,000 or imprisoned up to the amendment I have just been dis- uses of the flag that constitute ‘‘fighting’’ 2 years, or both. cussing—‘‘if enacted, while not revers- words or are otherwise intended to provoke And third, anyone who steals a flag ing Johnson and Eichman, should sur- imminent violence and in circumstances from U.S. property and destroys or vive constitutional attack on first where the provocation is reasonably likely damages that flag may also be fined up amendment grounds.’’ to occasion lawlessness. The section is also to $250,000 or imprisoned up to 2 years, In addition, Bruce Fein, a former of- sufficiently specific in defining ‘‘flag of the ficial in the Reagan administration and United States’’ to avoid the vice of vague- or both. ness. The phrase is defined to include any Some of my colleagues will argue respected constitutional scholar con- flag in any size and in a form commonly dis- that we’ve been down the statutory curs: played as a flag that would be perceived by road before and the Supreme Court has ‘‘In holding flag desecration statutes a reasonable observer to be a flag of the rejected it. unconstitutional in Johnson, the Court United States. The definition is intended to However, the Senate’s previous stat- cast no doubt on the continuing vital- prevent circumvention by destruction or utory effort wasn’t pegged to the well- ity of Brandenburg and Chaplinsky as damage to virtual flag representations that established Supreme Court precedents applied to expression through use or could be as provocative to an audience as mutilating the genuine article. Any poten- in this area. abuse of the flag. [The amendment] ‘‘— tial chilling effect on free speech caused by This amendment differs from the referring to my amendment—falls well inherent definitional vagueness, moreover, is statutes reviewed by the Supreme within the protective constitutional nonexistent because the only type of expres- Court in the two leading cases: Texas umbrella of Brandenburg and sion punished by section 3(a) is that intended S 18266 CONGRESSIONAL RECORD — SENATE December 8, 1995 by the speaker to provoke imminent lawless- nents of controversial political ideas with an lawless action and is likely to incite or ness, not a thoughtful response. The First excuse to use their own propensity for vio- produce such action.’’ 395 U.S. at 447. It went Amendment was not intended to protect ap- lence as a means of exercising a veto over on to state that ‘‘[a] statute which fails to peals to imminent criminality. otherwise protected speech, since it requires draw this distinction impermissibly intrudes Section 3(a) also avoided content-based that the defendant have a specific intent to upon the freedoms guaranteed by the First discrimination which is generally frowned on instigate a violent response; and (3) it does and Fourteenth Amendments. It sweeps by the First Amendment. It does not punish not usurp authority vested in the states, within its condemnation speech which our based on a particular ideology or viewpoint since it does not intrude upon police powers Constitution has immunized from govern- of the speaker. Rather, it punishes based on traditionally exercised by the states. Each of ment control.’’ Id. at 448. calculated provocations of imminent vio- these points will be discussed in greater de- S. 1335 merely takes up the Court’s invita- lence through the destruction or damage of tail below. tion to focus a proper law on ‘‘imminent law- the flag of the United States that are reason- One additional point is worth noting. Pass- less action.’’ It specifically punishes ‘‘[a]ny ably likely to succeed irrespective of the ing a statute is far preferable to enacting a person who destroys or damages a flag of the content of the speaker’s expression. Such ex- constitutional amendment that would mark United States with the primary purpose and pressive neutrality is not unconstitutional the first time in its more than two centuries intent to incite or produce imminent vio- discrimination because the prohibition is in- as a beacon of freedom that the United lence or a breach of the peace, and in cir- tended to safeguard the social interest in States amended the Bill of Rights. Totali- cumstances where the person knows it is rea- order, not to suppress a particular idea. See tarian regimes fear freedom and enact broad sonably likely to produce imminent violence F.C.C. v. Pacifica Foundation, 438 U.S. 726, authorizations to pick and choose the free- or a breach of the peace.’’ S. 1335, at § 3(a). 744–746 (1978). doms they allow. The broadly worded pro- The language precisely mirrors the Court’s I would welcome the opportunity to am- posed constitutional amendment follows Brandenburg criteria. It does not implicate plify on the constitutionality of section 3(a) that blueprint by giving plenary authority the Constitution’s free-speech protections, as your bill progresses through the legisla- to the federal and state governments to pick because ‘‘[t]he First Amendment does not tive process. and choose which exercises of freedom will protect violence.’’ NAACP v. Claiborne Hard- Very truly yours, be tolerated. On the contrary, American de- ware Co., 458 U.S. 886, 916 (1982). BRUCE FEIN, mocracy has never feared freedom, and no More recently, the Court put it this way: Attorney at Law. crisis exists that should cause us to recon- ‘‘a physical assault is not by any stretch of [Memorandum] sider this path. Because the Court has never the imagination expressive conduct pro- tected by the First Amendment.’’ Wisconsin To: Interested parties. said that Congress lacks the constitutional v. Mitchell, 113 S.Ct. 2194, 2199 (1993). Under From: Robert S. Peck, Esq.; Robert M. power to enact a statute to prevent the flag the Court’s criteria, for example, a symbolic O’Neil, professor, University of Virginia from becoming a tool of violence, a statute— protest that consists of hanging the Presi- Law School; Erwin Chemerinsky, Legion rather than a constitutional amendment—is dent in effigy is indeed protected symbolic Lex Professor of Law, University of an incomparably better choice. speech. Although hanging the actual Presi- Southern California. I. S. 1335 PUNISHES VIOLENCE OR INCITEMENT TO dent might convey the same message of pro- Re S. 1335, the Flag Protection and Free VIOLENCE, NOT EXPRESSIVE CONDUCT test, a physical assault on the nation’s chief Speech Act of 1995. The fatal common flaw in the flag-desecra- executive cannot be justified as constitu- Date: November 7, 1995. tion prosecution of Gregory Lee Johnson, tionally protected expressive activity and This memorandum will analyze the con- whose Supreme Court case started the con- could constitutionally be singled out for spe- stitutional implications of S. 1335, the Flag troversy that has led to the proposed con- cific punishment. S. 1335 makes this nec- Protection and Free Speech Act of 1995. As stitutional amendment, and the subsequent essary distinction as well, protecting the use its name implies and the legislation states as enactment by Congress of the Flag Protec- of the flag to make a political statement, its purpose, S. 1335 seeks ‘‘to provide the tion Act of 1989 was the focus on punishing whether pro- or anti-government, while im- maximum protection against the use of the contemptuous views concerning the Amer- posing sanctions for its use to incite a vio- flag of the United States to promote violence ican flag (Eichman, 496 U.S. at 317–19; Texas v. lent response. while respecting the liberties that it symbol- Johnson, 491 U.S. 397, 405–07 (1989)). In both Courts and prosecutors are quite capable of izes.’’ S. 1335, 104th Cong., 1st Sess. § 2(b) instances, law was employed in an attempt discerning the difference between protected (1995). This memorandum concludes that the to reserve use of the flag for governmentally speech and actionable conduct. Federal law bill conforms to constitutional requirements approved viewpoints (i.e., patriotic pur- already makes a variety of threats of vio- in both its purpose and its provisions. poses). The Court held such a reservation lence a crime. Congress has, for example, It would be a mistake to conclude that S. violated bedrock First Amendment prin- targeted for criminal sanction interference 1335 is unconstitutional simply because the ciples in that the government has no power with commerce by threats or violence, 18 U.S. Supreme Court invalidated the Flag to ‘‘ensure that a symbol be used to express U.S.C. § 1951, (1994), incitement to riot, 18 Protection Act of 1990 in its decision in Unit- only one view of that symbol or its U.S.C. § 2101, tampering with consumer prod- ed States v. Eichman, 496 U.S. 310 (1990). In referents.’’ (Id. at 417.) ucts, 18 U.S.C. § 1365, and interfering with this decision, as well as its earlier flag-dese- Johnson had been charged with desecrating certain federally protected activities. 18 cration opinion, the Court specifically left a venerated object, rather than any of a U.S.C. § 245. S. 1335 fits well within the rubric open a number of options for flag-related number of other criminal charges that he that these laws have previously occupied. It laws, including the approach undertaken by could have been prosecuted for and that cannot be reasonably asserted that S. 1335 S. 1335. The Court reiterated its stand in its would not have raised any constitutional is- attempts to suppress protected expression. 1992 cross-burning case, indicating that flag sues. Critical to the Supreme Court’s deci- burning could be punishable under cir- sion in his case, as well as to the Texas II. S. 1335 DOES NOT UNCONSTITUTIONALLY DIS- cumstances where dishonoring the flag did courts that also held the conviction uncon- CRIMINATE ON THE BASIS OF CONTENT OR not comprise the gist of the crime (R.A.V. v. stitutional, was the fact that ‘‘[n]o one was VIEWPOINT City of St. Paul, 112 S.Ct. 2538, 2544 (1992)). physically injured or threatened with in- The Supreme Court has repeatedly recog- Unlike the 1990 flag law that the Court ne- jury.’’ 491 U.S. at 399. The Texas Court of nized that ‘‘above all else, the First Amend- gated, S. 1335 is not aimed at suppressing Criminal Appeals noted that ‘‘there was no ment means that government has no power non-violent political protest; in fact, it fully breach of the peace nor does the record re- to restrict expression because of its message, acknowledges that constitutionally pro- flect that the situation was potentially ex- its ideas, its subject matter, or its content.’’ tected right. In contrast, the Flag Protec- plosive.’’ Id. at 401 (quoting 755 S.W.2d 92, 96 Police Department v. Mosley, 408 U.S. 92, 95 tion Act, the Court said, unconstitutionally (1988)). Thus, the primary concern addressed (1972). On this basis, the Court recently in- attempted to reserve the use of the flag as a by S. 1335, incitement to violence, was not at validated a St. Paul, Minnesota ordinance symbol for governmentally approved expres- issue in the Johnson case. The Eichman Court that purported to punish symbolic expres- sive purposes. S. 1335 makes no similar at- found the congressional statute to be indis- sion when it constituted fighting words di- tempt to prohibit the use of the flag to ex- tinguishable in its intent and purpose from rected toward people because of their race, press certain points of view. Instead, it both the prosecution reviewed in Johnson and thus color, creed, religion or gender. Fighting advances a legitimate anti-violent purpose also unconstitutional. words is a category of expression that the while remaining solicitous of our tradition of In reaching its conclusion about the issue Court had previously held to be outside the ‘‘uninhibited, robust, and wide-open’’ public of constitutionality, the Court, however, spe- First Amendment’s protections. Chaplinsky debate (New York Times v. Sullivan, 376 U.S. cifically declared that ‘‘[W]e do not suggest v. New Hampshire, 315 U.S. 568, 571–72 (1942). 254, 270 (1964)). that the First Amendment forbids a State to In R.A.V. v. City of St. Paul, 112 S.Ct. 2538, Moreover, the statute is sensitive to, and prevent ‘imminent lawless action.’ ’’ Id. at 2543 (1992), the Court gave this statement complies with several other constitutional 410 (quoting Brandenburg v. Ohio, 395 U.S. greater nuance by stating that categories of considerations, namely: (1) it does not dis- 444, 447 (1969)). In Brandenburg, the Court said speech such as fighting words are not so en- criminate between expression on the basis of that government may not ‘‘forbid or pro- tirely without constitutional import ‘‘that its content or viewpoint, since it avoids the scribe advocacy of the use of force or of law they may be made the vehicles for content kind of discrimination condemned by the violation except where such advocacy is di- discrimination unrelated to their distinc- Court in R.A.V.; (2) it does not provide oppo- rected to inciting or producing imminent tively proscribable content.’’ Explaining this December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18267 concept, the Court gave an example involv- ity, sexual orientation, national origin or and a likelihood element is critical to distin- ing libel: ‘‘the government may proscribe ancestry. Wisconsin v. Mitchell, 113 S. Ct. 2194 guishing between a law that unconstitution- libel; but it may not make the further con- (1993). A fair reading of the Court’s unani- ally punishes a viewpoint because some peo- tent discrimination of proscribing only libel mous decision in that case supports the con- ple hate it and one that legitimately pun- critical of the government.’’ Id. clusion that the Court would not strike down ishes incitement to violence. As a further example, the Court said a city S. 1335 on R.A.V. grounds. In Mitchell, the IV. S. 1335 IS CONSISTENT WITH FEDERALISM council could not enact an ordinance prohib- Court concluded that the statute did not PRINCIPLES iting only those legally obscene works that impermissibly punish the defendant’s ‘‘ab- Earlier this year, the Supreme Court held contain criticism of the city government. Id. stract beliefs,’’ id. at 2200 (citing Dawson v. that the Gun-Free School Zones Act of 1990, As yet another example, the Court stated Delaware, 112 S. Ct. 1093 (1992)), but instead 18 U.S.C. § 922(q)(1)(a) unconstitutionally ex- that ‘‘burning a flag in violation of an ordi- spotlighted conduct that had the potential ceeded the power of Congress to regulate nance against outdoor fires could be punish- to cause a physical harm that the State commerce. United States v. Lopez, 63 U.S.L.W. able, whereas burning a flag in violation of could properly proscribe. S. 1335 similarly es- an ordinance against dishonoring the flag is 4343 (1995). In doing so, the Court reaffirmed chews ideological or viewpoint discrimina- the original principle that ‘‘the powers dele- not.’’ Id. at 2544. The rationale behind this tion to focus on the intentional provocation limitation, the Court explained, was that gated by the [] Constitution to the federal of violence, a harm well within the govern- government are few and defined. Those government could not be vested with the ment’s power to punish. power to ‘‘drive certain ideas or viewpoints which are to remain in the State govern- III. S. 1335 DOES NOT ENCOURAGE A HECKLER’S from the marketplace.’’ Id. at 2545 (quoting ments are numerous and indefinite.’’ Id. at VETO Simon & Schuster, Inc. v. Members of the N.Y. 4344 (quoting The Federalist No. 45, pp. 292– State Crime Victims Bd., 112 S.Ct. 501, 508 First Amendment doctrine does not permit 293 (C. Rossiter ed. 1961) (James Madison)). S. 1335 respects these principles by direct- (1991)). the government to use the excuse of a hostile No such danger exists under S. 1335. Both audience to prevent the expression of politi- ing its sanctions only at preventing the use the patriotic group that makes use of the cal ideas. Thus, the First Amendment will of the national flag to incite violence, pre- flag to provoke a violent response from dis- not allow the government to give a heckler venting someone from damaging an Amer- senters and the protesters who use the flag some sort of veto against the expression of ican flag belonging to the United States, or to provoke a violent response from loyalists ideas that he or she finds offensive. As a re- damaging, on federal land, an American flag are subject to its provisions. A law that sult, the Court has observed, ‘‘in public de- stolen from another person. Each of these would only punish one or the other perspec- bate our own citizens must tolerate insult- acts have a clear federal nexus and remain tive would have the kind of constitutional ing, and even outrageous, speech in order to properly within the jurisdiction of the fed- flaw identified by the Court in R.A.V. More- provide ‘adequate breathing space’ to the eral government. Moreover, the bill concedes over, the legislation recognizes, as the Su- freedoms protected by the First Amend- jurisdiction to the states wherever it may preme Court itself did (‘‘the flag occupies a ment.’’ Boos v. Barry, 485 U.S. 312, 322 (1988). properly be exercised. S. 1335, at § 3(a)(d). ‘‘deservedly cherished place in our commu- Any other approach to free speech ‘‘would V. CONCLUSION nity,’’ 491 U.S. at 419) that the flag has a spe- lead to standardization of ideas either by S. 1335 is carefully crafted to avoid con- cial status that justifies its special atten- legislation, courts, or dominant political or stitutional difficulties by being solicitous of tion. Similarly, the R.A.V. Court noted that community groups.’’ Terminiello v. Chicago, federalism and freedom of speech by focusing a law aimed at protecting the President 337 U.S. 1, 4 (1949). Thus, simply because on incitement to violence. By doing so, it against threats of violence, even though it some might be provoked and respond vio- meets all constitutional requirements. did not protect other citizens, is constitu- lently to a march that expresses hatred of tional because such threats ‘‘have special the residents of a community, that is insuffi- CONGRESSIONAL RESEARCH SERVICE, force when applied to the person of the Presi- cient justification to overcome the First THE LIBRARY OF CONGRESS, dent.’’ Id. at 2546. The rule against content Amendment’s protection of ideas, no matter Washington, DC, October 23, 1995. discrimination, the Court explained, is not a how noxious they may be deemed. See, e.g., To: Hon. Robert F. Bennett (Attention: Lisa rule against underinclusiveness. For exam- Collin v. Smith, 578 F.2d 1197 (7th Cir.), Cert. Norton). ple, ‘‘a State may choose to regulate price denied, 436 U.S. 953 (1978). From: American Law Division. advertising in one industry but not in others, The Supreme Court’s flag-burning deci- Subject: Constitutionality of flag desecra- because the risk of fraud is in its view great- sions applied this principle. In Johnson, the tion bill. er there.’’ Id. (parenthetical and citation state of Texas attempted to counter the ar- This memorandum is in response to your omitted). gument against its flag-desecration prosecu- request for a constitutional evaluation of S. The federal laws cited earlier that make tion by asserting an overriding govern- 1335, 104th Congress, a bill to provide for the certain types of threats of violence into mental interest; it claimed that the burning protection of the flag of the United States crimes are not thought to pose content dis- of a flag ‘‘is necessarily likely to disturb the and free speech and for other purposes. crimination problems because they deal with peace and that the expression may be prohib- Briefly, the bill would criminalize the de- only limited kinds of threats. To give an- ited on this basis.’’ 491 U.S. at 408 (footnote struction or damage of a United States flag other example, federal law also makes the omitted). The Court rejected this argument under three circumstances. First, subsection use of a gun in the course of a crime grounds on two grounds: (1) no evidence had been sub- (a) would penalize such conduct when the for special additional punishment. See 18 mitted to indicate that there was an actual person engaging in it does so with the pri- U.S.C. § 924(c). In Brandenburg, the Court breach of the peace, nor was evidence ad- mary purpose and intent to incite or produce found that a Ku Klux Klan rally at which duced that a breach of the peace was one of imminent violence or a breach of the peace guns were brandished and overthrow of the Johnson’s goals; Id. at 407, and (2) to hold and in circumstances where the person government discussed remained protected ‘‘that every flag burning necessarily pos- knows it is reasonably likely to produce im- free speech. Because guns were used for ex- sesses [violent] potential would be to evis- minent violence or a breach of the peace. pressive purposes in Brandenburg and found cerate our holding in Brandenburg [that the Second, subsection (b) would punish any to be beyond the law’s reach there does not expression must be directed to and likely to person who steals or knowingly converts to mean that the law enhancing punishment be- incite or produce violence to be subject to his or her use, or to the use of another, a cause a gun is used during the commission of criminalization].’’ Id. at 409. United States flag belonging to the United a crime unlawfully infringes on any expres- S. 1335 avoids the problems that Texas had States and who intentionally destroys or sive rights. by requiring that the defendant have ‘‘the damages that flag. Third, subsection (c) pun- The gun law makes the necessary constitu- primary purpose and intent to incite or ishes any person who, within any lands re- tional distinctions that the Court requires, produce imminent violence or a breach of served for the use of the United States or and so does S. 1335’s concentration on crimes the peace, . . . in circumstances where the under the exclusive or concurrent jurisdic- involving the American flag rather than pro- person knows it is reasonably likely to tion of the United States, steals or know- tests involving the flag. S. 1335 properly produce imminent violence or a breach of ingly converts to his or her use, or to the use identifies in its findings the reason for Con- the peace.’’ S. 1335, at § (a)(a). If Texas had of another, a flag of the United States be- gress to take special note of the flag: ‘‘it is demonstrated that Johnson had intended to longing to another person and who inten- a unique symbol of national unity.’’ § 2(a)(1). breach the peace and was likely to accom- tionally destroys or damages that flag. It notes that ‘‘destruction of the flag of the plish this goal, Johnson could have been con- Of course, the bill is intended to protect United States can occur to incite a violent victed of a crime for burning the U.S. flag. the flag of the United States in cir- response rather than make a political state- Texas, however, never attempted to prove cumstances under which statutory protec- ment.’’ § 2(a)(4). As a result, Congress has de- this. tion may be afforded. The obstacle to a gen- veloped the necessary legislative facts to Moreover, S. 1335 does not enable hecklers eral prohibition of destruction of or damage justify such a particularized law. to veto expression by reacting violently be- to the flag is the principle enunciated in In its only post-R.A.V. decision on a hate- cause it requires that the defendant have the United States v. Eichman, 496 U.S. 310 (1990), crimes statute, the Court upheld a statute specific intent to provoke that response, and Texas v. Johnson, 491 U.S. 397 (1989), that that enhanced the punishment of an individ- while at the same time taking away any flag desecration, usually through burning, is ual who ‘‘intentionally selects’’ his victim bias-motivated discretion from law enforc- expressive conduct if committed to ‘‘send a on the basis of race, religion, color, disabil- ers. The existence of a scienter requirement message,’’ and that the Court would review S 18268 CONGRESSIONAL RECORD — SENATE December 8, 1995 limits on this conduct with exacting scru- resents. But even a constitutional NLD and Suu Kyi. Convention partici- tiny; legislation that proposed to penalize amendment won’t succeed in coercing pants have been forced to accept guide- the conduct in order to silence the message proper respect for the flag. It will, how- lines that will preserve a leading role or out of disagreement with the message vio- lates the First Amendment speech clause. ever, do damage to the Constitution for the military in Burma’s political Rather clearly, subsections (b) and (c) and the cause of freedom. life and would exclude anyone married would present no constitutional difficulties, After all, is that not what the flag to a foreigner from assuming the office based on judicial precedents, either facially signifies—freedom? That is what it sig- of president. As we all know, this or as applied. The Court has been plain that nifies. would prevent Suu Kyi from assuming one may not exercise expressive conduct or Who can forget the pictures of the the position she was elected in 1990 to symbolic speech with or upon the property of fall of the Berlin Wall, as nation after fulfill since she is married to a British others or by trespass upon the property of another. Eichman, supra, 496 U.S., 316 n., 5; nation of Eastern Europe threw off the scholar. Johnson, supra, 412 n. 8; Spence v. Washington, shackles of communism for freedom? Mr. President, at the end of my com- 418 U.S. 405, 408–409 (1974). See also, R.A. v. The American flags flying over our em- ments, I will insert two articles which City of St. Paul, 112 S.Ct. 2538 (1992) (cross bassies in the countries behind the Iron appeared on November 30 in the Wash- burning on another’s property). The sub- Curtain held the hopes and dreams of ington Post and the New York Times sections are directed precisely to the theft or those subjugated under communism. regarding the current situation in conversion of a flag belonging to someone Spreading freedom is uniquely our Burma—there is no question that the else, the government or a private party, and American creed. In our history, we the destruction of or damage to that flag. decision to boycott has increased the Almost as evident from the Supreme have seen freedom triumph over our co- level of tension in Rangoon. SLORC Court’s precedents, subsection (a) is quite lonial forbearers, over the slave hold- has now charged Suu Kyi and her sup- likely to pass constitutional muster. The ers, over the Fascists and over the dic- porters as engaging in confrontational provision’s language is drawn from the tators. politics, but, as Suu Kyi is quick to ‘‘fighting words’’ doctrine of Chaplinsky v. To narrow the Bill of Rights, even in point out: New Hampshire, 315 U.S. 568 (1942). That case the name of the flag and patriotism, What they have termed confrontational is defined a variety of expression that was un- constricts freedom and would reverse protected by the First Amendment, among that we have asked for dialogue, which we the categories being speech that inflicts in- the 200-year American experiment with want in order to prevent confrontation. To jury or tends to incite immediate violence. freedom that has made our Nation the silence the views of people whose opinions Id., 572. While the Court over the years has envy of the world. are different by putting them in prison is far modified the other categories listed in Let us not give flag-burners—the more confrontational. Chaplinsky, it has not departed from the miscreants who hate America and the Let me assure my colleagues that holding that the ‘‘fighting words’’ exception freedom we cherish—more attention Suu Kyi’s understanding of the deterio- continues to exist. It has, of course, laid than they deserve. Do not let these few rating situation in Burma is not a down some governing principles, which are lonely minority view. Last week the reflected in the subsection’s language. scoundrels with nothing better to do Thus, the Court has applied to ‘‘fighting than burn our flag chase freedom from United Nations, once again, took up words’’ the principle of Brandenburg v. Ohio, the shores of America. the question of Burma’s political and 395 U.S. 444 (1969), under which speech advo- I urge adoption of my statutory al- human rights record. Once again, the cating unlawful action may be punished only ternative to punish those who dese- Special Rapporteur, Dr. Yokota, issued if it directed to inciting or producing immi- crate the flag, rather than a constitu- a report which few may actually read, nent lawless action and is likely to incite or tional amendment that strikes at the but it is a powerful voice for the thou- produce such action. Id., 447. This develop- sands and thousands of Burmese citi- ment is spelled out in Cohen v. California, 403 heart of our most cherished freedoms. U.S. 15, 20, 22–23 (1971). See also NAACP v. So, Mr. President, in all likelihood, zens who continue to suffer at the Claiborne Hardware Co., 458 U.S. 886, 928 we will be voting on this amendment hands of SLORC. (1982); Hess v. Indiana, 414 U.S. 105 (1973). sometime either Monday or Tuesday, Let me briefly tick off the observa- A second principle, enunciated in an opin- depending on whether a unanimous- tions made in the report. ion demonstrating the continuing vitality of consent agreement is entered into. I In describing the constitutional con- the ‘‘fighting words’’ doctrine, is that it is hope that the amendment will be given vention, Dr. Yokota noted that in spite impermissible to punish only those ‘‘fighting of his efforts to meet privately with po- words’’ of which government disapproves. serious consideration by the Senate as Government may not distinguish between an alternative approach which clearly litical leaders who still planned to par- classes of ‘‘fighting words’’ on an ideological would meet constitutional standards to ticipate in the process, SLORC would basis. R.A.V. v. City of St. Paul, 112 S.Ct. 2538 amending the Constitution. only permit visits supervised by (1992). Mr. President, on another matter, I SLORC officials. He stated in un- Subsection (a) is drafted in a manner to re- ask unanimous consent to proceed as equivocal terms, the National Conven- flect both these principles. It requires not tion ‘‘is not heading toward restoration only that the conduct be reasonably likely in morning business. to produce imminent violence or breach of The PRESIDING OFFICER (Mr. of democracy.’’ the peace, but that the person intend to INHOFE). Without objection, it is so or- While the Special Rapporteur wel- bring about imminent violence or breach of dered. comed the release of Suu Kyi and three the peace. Further, nothing in the subsection f other senior officials, he criticized the draws a distinction between approved or dis- continued imprisonment of several approved expression that is communicated BURMA hundred political prisoners and the by the action committed with or on the flag. Mr. MCCONNELL. Mr. President, last complex array of security laws allow- In conclusion, the judicial precedents es- week, in yet another remarkable act of tablish that the bill, if enacted, would sur- ing SLORC sweeping powers of arbi- vive constitutional attack. Subsections (b) courage, Daw Aung San Suu Kyi an- trary arrest and detention—authority and (c) are more securely grounded in con- nounced her party, the National that they continue to use—I might stitutional law, but subsection (a) is only a League for Democracy, will not par- argue abuse—weekly. little less anchored in decisional law. ticipate in the constitutional conven- Yokota also condemned the severity Because of time constraints, this memo- tion called by the State Law and Order of court sentences without regard to randum is necessarily brief. If, however, you Restoration Council, SLORC. fair trials, access to defense lawyers or desire a more generous treatment, please do not hesitate to get in touch with us. As many who have followed Burma in any consideration of proportionality JOHNNY H. KILLIAN, recent years know, remaining true to between offense and punishment. After Senior Specialist, the people who elected her and the sentencing, he drew attention to the American Constitutional Law. NLD in 1990, Suu Kyi declared, fact that conditions in prisons are im- Mr. MCCONNELL. I know my col- A country which is drawing up a constitu- possible to monitor because SLORC leagues and their allies who support tion that will decide the future of the state continues to stonewall the Inter- the constitutional amendment are mo- should have the confidence of the people. national Red Cross Committee and its tivated by the highest ideals and prin- a standard SLORC clearly does not and request for access to detention sites. ciples. cannot meet. In his March 1995 report, Dr. Yokota I share their reverence for the flag In fact, SLORC has already stacked confirmed that military officials have and the values and history it rep- the constitutional deck against the carried out arbitrary killings, rape, December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18269 torture, forced portage, forced labor, leading her nation offends every citizen sition. Is it any wonder her party has forced relocation, and confiscation of who voted for her and more impor- decided they cannot participate in the private property—each and every act a tantly stands in stark contrast to her constitutional convention process? violation of international law. In this record. Suu Kyi has conducted herself Last week—like every week since her month’s report he indicates that the with dignity and courage uncommon in release—thousands of people gathered pattern continues and as before, takes this century. outside Suu Kyi’s home to listen to her place most frequently in border areas The Burmese people voted—they, like speak. Each Saturday and Sunday where the Army is engaged in military Suu Kyi, have earned our respect and spontaneous crowds have made the pil- operations or where regional develop- support. The fact that the results were grimage to her compound and left in- ment projects are taking place. He rejected by a handful of ruthless, self spired by her courage, her confidence, added: serving generals does not undermine and her commitment to their freedom Many of the victims of such atrocious acts the validity of the elections or the out- and future. It is a crowd described in belong to ethnic national populations, espe- come. the U.N. report and in news accounts as cially women, peasants, daily wage earners When recently pressed by a rep- large and peaceful with a sense of pur- and other peaceful civilians who do not have resentative of the U.N. Secretary Gen- pose and discipline. enough money to avoid mistreatment by eral to engage in a dialog with Suu Unfortunately, 2 weeks ago, there bribing officials. Kyi, SLORC officials dismissed the re- was a sharp change in the SLORC’s tol- Dr. Yokota paints a grim portrait of quest point out, Suu Kyi was now: Burma today—a picture which stands erance for these gatherings. In an ap- An ordinary citizen, that in 1990 there were parent attempt to restrict access to at odds with the one the international as many as 230 political parties with which it business community would have us see. would be impossible to establish dialogue Suu Kyi, police began to erect barri- A few months ago, in my office, I lis- and it would thus not be even handed to sin- cades around her home. I understand tened as the chairman of a large Amer- gle out any one of them. three young student supporters were ican oil company eager to do business Well, she is the one they elected. arrested when they tried to intervene. with SLORC denounced as rumors and Two hundred and thirty political par- According to Dr. Yokota’s report, cor- gossip the idea that the SLORC was en- ties did not carry the elections—the roborated by newspaper stories, the gaged in any forced relocations related National League for Democracy and three were charged and sentenced 2 to his project. I respectfully suggest Suu Kyi did. She has earned the right days later to 2 years imprisonment. this month’s U.N. report rises above to negotiate a timetable for the res- These arrests were followed by an- the gossip standard. toration of democracy for her people. It other ominous development. When the Mr. President, I share the concerns is her right and our obligation as the NLD announced it would not partici- raised by the U.N. Rapporteur. Let me beacon of democracy to support that pate in the constitutional convention, stress to my colleagues that he is not effort. the party’s senior officials woke up to reporting on a situation that has To make the argument that the Unit- find their homes surrounded by armed changed for the better since Suu Kyi’s ed States should resign itself to dealing soldiers. release, but one which is growing pro- with SLORC to bring about change, Democracy activists are not suffering gressively worse. compromises the very core of beliefs in Burma alone. Last week nine mem- Mr. President, I have taken the time that define our history and guide this bers of the New Era newspaper staff to come to the floor to discuss these Nation. were detained in Thailand. The New events because I am deeply disturbed We do not yield to vicious dictators— Era is an underground newspaper with by twin developments—a major cam- we do not abandon those who strain wide circulation inside Burma—appar- paign by American companies to en- against the barbed wire shackles of re- ently being caught with a copy results hance the political legitimacy of pression. in immediate arrest. Bowing to pres- SLORC even as SLORC attempts to It absolutely sickens me that any re- sure from SLORC, in anticipation of an crush the fledgling democracy move- spectable academic organization—for upcoming visit by a senior junta offi- ment inside Burma. that matter any American company— cial, Khin Nyunt, Thai officials appar- In recent weeks, many United States would suggest that economic oppor- ently have detained the New Era jour- businesses have engaged in an aggres- tunity and political expediency should nalists—including a 71-year-old editor sive campaign to persuade the public impel the United States to accept and his 65-year-old wife. SLORC as the representatives of the that SLORC is worth doing business Reports from activists inside and Burmese people. with because like Vietnam and China, outside Burma suggest a broad crack It is not just the campaign that is Burma can be improved through eco- down on democratic activists is immi- being waged here at home to enhance nomic engagement. nent. I hope this is not true and urge SLORC’s political credentials that has I think it is important to draw a key the administration to make clear Unit- brought me to the floor of the Senate. distinction. Unlike China and Vietnam, ed States opposition to any such ac- I am also concerned about recent Burma held legitimate elections and tions. However, the evidence suggests events in Burma. chose a leader, Aung San Suu Kyi. The there is credible reason to be con- elections by all accounts were free, Not only has SLORC repeatedly and publicly rejected Suu Kyi’s call for a cerned. fair, and 7 million people made their It is clear that the fledgling democ- views absolutely clear. dialog on national reconciliation, last week a senior official threatened to an- racy movement in Burma is under I must confess, I was appalled by a siege. I find the words of Suu Kyi’s fel- recent study produced by the National nihilate anyone who attempted to en- danger the military’s rule. This week, low democrat, NLD Vice Chairman U Bureau for Asian Research which sug- Tin O, chilling. On Wednesday night, gested these results were essentially ir- the noose tightened a little more and Suu Kyi was directly threatened. The after the boycott announcement, six relevant. The report said, Suu Kyi was: soldiers surrounded his home and an- Obviously sincere, but it remains to be official military newspaper called Suu Kyi a traitor who should be annihi- other soldier now follows him every- seen how successful she will be in her at- where. tempts and whether her supporters are help- lated. ing her attain a position of leadership. Rhetoric has been matched by an in- A political prisoner for years, the 68- Insult was added to injury when the creased willingness to restrict Suu year-old vice chairman said with a wan report stated: Kyi’s role. In October, the National De- smile, ‘‘We have no worries at all. I have been in prison before. They can Even assuming the time may come when mocracy League voted to reinstate Suu she does have a say in how the country is Kyi as General Secretary along with a detain me, do whatever they want. governed, it is an open question of how well slate of other officials. In yet another This is not a democratic country. We equipped she is for such responsibilities, and effort to work peacefully with SLORC, have to face some costs for the legiti- to what extent she would be able to rely on the NLD submitted the leadership list mate rights of a democracy.’’ experienced technocrats and administrators. to the junta for approval. It is my hope he, Suu Kyi and the These assertions are outrageously of- SLORC rejected the results as illegal NLD will not bear the costs alone or fensive. To imply she is incapable of and refused to recognize Suu Kyi’s po- for long. S 18270 CONGRESSIONAL RECORD — SENATE December 8, 1995 Mr. President, in the near future the League for Democracy, of trying to disrupt ever they want. This is not a democratic United Nations will take up a resolu- the national convention in hopes of replacing country. We have to face some costs for the tion regarding Burma. I have been ad- it ‘‘with a convention they would be able to restoration of the legitimate rights of a de- dominate as they like.’’ mocracy.’’ vised that the United Nations will, The party’s decision to boycott the con- once again, condemn the human rights stitutional convention was ‘‘totally forsak- [From the Washington Post, Nov. 30, 1995] and political situation in clear and ing and going against the national inter- BURMESE OPPOSITION LEADER SNUBS JUNTA’S compelling terms. I commend Ambas- ests,’’ the military statement warned. CONSTITUTION TALKS sador Albright for her efforts to assure The government also deployed uniformed (By Doug Fine) our support for Suu Kyi and democracy soldiers to the homes of three senior party RANGOON, BURMA.—Using the backdrop of a in Burma are spelled out in the resolu- members. The soldiers allowed residents of government-sponsored constitutional con- tion. the houses to come and go, but foreign dip- vention as a forum for stepping up opposi- lomats reported widespread rumors that a tion to the country’s military rules, Nobel However, for more than a year the wing of Insein Prison, the local penitentiary administration has argued Burma and Prize-winning opposition leader Aung San used to hold political prisoners, had been Suu Kyi said today that Burma is not headed SLORC has a choice—they must imme- cleared out in recent days to make space for on the path of democracy. diately improve their human rights many of Mrs. Suu Kyi’s followers. Four and half months after her release record and move promptly to open the The boycott by Mrs. Suu Kyi and her party from house arrest by the ruling State Law political process or they will face fur- removes any veneer of legitimacy from the and Order Restoration Council, Aung San ther international isolation. I agree, convention, which was organized by the mili- Suu Kyi addresses increasingly large crowds tary two years ago to enshrine its political but my definition of prompt and imme- each weekend afternoon from the gate of her role in the Burmese government. home near Rangoon University. diate seems to differ with theirs. The junta, which calls itself the State Law But in a news conference and talk today at I think we have given SLORC ample and Order Restoration Council, has refused her fenced-in compound, she revealed that time to make a decision. Given recent to honor the results of elections in 1990 won her National League for Democracy, which events, it is clear they have no inten- overwhelmingly by the National League for overwhelmingly won elections in 1990 that tion to relax their ruthless grip on Democracy. Mrs. Suu Kyi, the Oxford-edu- the military refused to recognize, has noti- power. cated daughter of Burma’s independence fied government officials that the party So in conjunction with the U.N. reso- hero, Gen. Aung San, was under house arrest would not participate in the constitutional at the time of the voting. deliberations. The military government lution it is my intention to introduce Since her release in July, Mrs. Suu Kyi has hopes the convention will legitimize its rule bipartisan sanctions legislation. I en- called repeatedly for negotiations with the by forging an ‘‘enduring state constitution.’’ courage my colleagues to support this junta, saying she is anxious to avoid any Insisting that the military first open a dia- effort as I see no other way to support possibility of a repetition of the violence logue with her party, which it has refused to Suu Kyi and the restoration of democ- that occurred in 1988, when thousands of her do, Aung San Suu Kyi said, ‘‘A country racy in Burma. supporters were gunned down in a military which is drawing up a constitution that will There is no question that sanctions crackdown that led to her house arrest the decide the future of a state should have the next year. confidence of the people. and further isolation of SLORC is an ‘‘We do not want to call the people onto Her party’s boycott has resulted in a pal- initiative she supports. Indeed, once the streets, and we have no intention of call- pable increase in tension in Rangoon. Party again this week Suu Kyi denounced the ing the people into the streets,’’ she said at leaders discovered security forces stationed increase in foreign investment and a news conference Wednesday in her lakeside outside their homes when they awoke today, urged companies to wait until democ- garden. ‘‘We have always said that we are a day after the convention opened. racy has been restored before bringing prepared to have dialogue at any time.’’ Despite the tense atmosphere and the cha- But the generals have not responded to her otic presence at her house of dozens of con- business to Burma. vention delegates barred from attending the Mr. President, I ask unanimous con- pleas, pushing ahead instead with a stage- managed constitutional convention in which convention, Aung San Suu Kyi took time to sent that the article, which included delegates, mostly handpicked by the mili- outline her views on democracy, the goal of her remarks, be printed in the RECORD tary, are drafting a constitution that guar- her political movement, which has taken on and that the Yokota report and Am- antees the military a permanent role in Bur- new life since her release. ‘‘With 7 million votes for the party in nesty International report on the cur- mese politics. As a result of her boycott, the 86 seats al- 1990,’’ she said, ‘‘the views of the people are rent situation be printed along with very clear. They want a constitution that that. lotted to the National League for Democracy were empty in the convention hall Wednes- will defend their basic rights.’’ There being no objection, the mate- Despite considerable corruption and a day, the second day of the current session. thriving black market, Aung San Suu Kyi rial was ordered to be printed in the ‘‘The authorities did not at any time show insisted that Burma is adequately prepared RECORD, as follows: any willingness to talk to the National for democracy and maintained that its ab- [From the New York Times, Nov. 30, 1995] League for Democracy as the winning party sence is responsible for the corruption. BURMESE OPPOSITION TO BOYCOTT JUNTA’S of the 1990 elections,’’ Mrs. Suu Kyi said. ‘‘This country was a democracy once from CONVENTION ‘‘They keep saying that the national conven- independence in 1948 until a 1962 military tion is a substitute for dialogue. I do no (By Philip Shenon) coup, and our situation then was very much think they can say that any longer.’’ better than it is now,’’ she said. ‘‘The Bur- RANGOON, BURMA.—Defying the military Plainclothes soldiers have been stationed mese people are disciplined and receptive if government, Aung San Suu Kyi, the Bur- outside Mrs. Suu Kyi’s house since her re- mese opposition leader, announced Wednes- you explain what is wanted of them and lease—and at her request, which is seen by why.’’ day that her political party would boycott a diplomats as a clever move since it allows Aung San Suu Kyi was placed under house military-run convention to draw up a new Mrs. Suu Kyi to blame the military if a pub- arrest in 1989, a year after the military insti- constitution for Burma. lic disturbance outside her home should get tuted a crackdown on her supporters that re- The move was Mrs. Suu Kyi’s most direct out of hand. sulted in thousands of deaths. Many of her challenge to the junta since she was freed in But there was no request by the party for associates are still in prison. She won the July after spending nearly six years under the uniformed soldiers who suddenly ap- Nobel Peace Prize in 1991 for her democracy house arrest. peared outside the homes of three of her sen- campaign. Since her release from confine- ‘‘The people of Burma are very united in ior party colleagues on Tuesday night, hours ment in July, she has repeatedly called for thinking that the national convention is not after the National League for Democracy in- reconciliation and dialogue among demo- heading toward democracy,’’ the Nobel Peace formed the government of its boycott. cratic forces, ethnic groups and her military Prize winner said in announcing the boycott. Western diplomats said they feared that foes. ‘‘I do not think there is as yet any evidence the junta might try to arrest some of the Reponding to the military’s charges that that the people of Burma support this na- party’s senior members on charges of incit- her party’s methods are confrontational, tional convention.’’ ing public disorder because of the boycott. Aung San Suu Kyi reacted angrily. ‘‘What In a letter delivered Tuesday, the party in- The party’s vice chairman and one of its they have termed ‘confrontational’ is that formed the government of its decision to founders, U Tin Oo, said in an interview that we have asked for a dialogue, which we want boycott the convention, which reopened this six uniformed soldiers had appeared outside in order to prevent confrontation. To silence week after a seven-month recess, in protest his home Tuesday night, and that he had the views of people whose opinions are dif- over the junta’s refusal to open negotiations been tailed by another soldier as he traveled ferent by putting them in prison is far more with the party over Burma’s political future. through the city Wednesday. confrontational. In a response published Wednesday in a ‘‘But we have no worries at all,’’ he in- Yet the move to boycott the constitutional government-run newspaper, the junta ac- sisted with a confident smile. ‘‘I have been in convention is likely to be viewed as a provo- cused the leaders of the party, the National prison before. They can detain me, do what- cation by the regime, which observers said December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18271 could widen the gulf between government so, I found it necessary, in accordance with With regard to the National Convention. I and opposition. The regime says Burma will Commission on Human Rights and General was not able to observe its meetings because become a multi-party democracy after the Assembly resolutions, to establish or con- it was not in session when I visited Myanmar new constitution is drafted, but it has not tinue direct contact with the Government this time. However, information from reli- provided a timetable. and people of Myanmar in order to verify the able sources indicates that it is not heading Aung San Suu Kyi, however, said the boy- information received and to analyze its con- towards restoration of democracy, I am par- cott was necessary. ‘‘They won’t even talk to tent. To my regret, however, such direct con- ticularly disappointed to learn that the Gov- us,’’ she said with a laugh. ‘‘How could the tacts in the form of a visit to Myanmar and ernment has not yet distributed the gulf be widened? It can only be narrowed.’’ Thailand were not possible before the dead- Myanmar language version of the Universal As for the military’s intentions in conven- line for the submission of the interim report. Declaration of Human Rights to all delegates ing the constitutional convention, one West- Mr. President, at the invitation of the Gov- to the National Convention. ern embassy official, reflecting a widely held ernment of Myanmar by a letter of the Min- At the completion of my visit to Myanmar, view, said, ‘‘The path which seems to be one ister for Foreign Affairs dated 28 September I proceeded from 17 to 20 October 1995, to chosen would lead to the drafting of a con- 1995, I undertook a visit to the Union of Thailand, to visit displaced persons from stitution which calls for transition that en- Myanmar from 8 to 17 October 1995. From 17 Myanmar in the area of Mae Hong Son and sures civilian rule on the front end, with to 20 October 1995, I visited and met with Mae Sariang, where, I established or contin- continued real authority being held indefi- some Myanmar ethnic minorities in Thai- ued contact with the people of Myanmar liv- nitely by the military.’’ land, along the Thai/Myanmar border, to as- ing in camps. Let me also take this oppor- One of the guidelines for the proposed con- certain the situation of human rights within tunity to express my deep gratitude to the stitution guarantees a ‘‘leading role’’ for the Myanmar for these ethnic minorities name- Government of Thailand who facilitated my military in politics, and another bans any- ly: Karenni, Shan and Karen. visit to the camps. one married to a foreigner from assuming While in Yangon, my office, accommoda- Mr. President, I now wish to summarize the office of president. Aung San Suu Kyi is tion and local transport were provided by the my observations on the human rights situa- married to Michael Aris, a British academic. UNDP Office in Myanmar, to which I wish to tion in Myanmar on the basis of the allega- She has continued to talk of compromise. express my deep gratitude. tions received, my recent visit to that coun- Mr. President, I wish to note with special ‘‘We have always said we want to talk over try and Thailand and of the information re- gratitude that the Government of Myanmar our differences to find an answer that’s ac- ceived from various sources, including the facilitated the visit, including the travel ceptable to everyone,’’ she said. ‘‘We have Government officials and people of within Myanmar to Kachin State in Myanmar, staff members of the United Na- never closed any doors and are open to any Myitkyina and Eastern Shan State in discussions which might result in what’s Kyaingtone and to Myitkina and Insein pris- tions and other specialised agencies, staff best for Burma’s people.’’ ons, and extended me many courtesies. members of active human rights and human- Aung San Suu Kyi insists that her party During this visit, I was received by a num- itarian non-governmental organizations, for- has no timetable for transition to democ- ber of high-level government officials includ- eign government officials, journalists, schol- racy, and she avoids being locked into any ing Lieutenant General Khin Nyunt, Sec- ars and students. one scenario by saying that the situation is retary One of the State Law and Order Res- Since there has been no time to study care- so prone to change. toration Council (SLORC), the Deputy Min- fully the information and documents col- But Burma is very much at a crossroads ister of Foreign Affairs, the Chief Justice, lected during my visits to Myanmar and now. After years of sealed borders and inter- the Minister for Information, the Minister Thailand, these observations will have to be national ostracism, the government is ac- for National Planning and Economic Devel- still preliminary in nature. The full account tively seeking investment, tourism and po- opment, the Minister for Home Affairs and of my findings, observations and rec- litical legitimacy. other high level authorities. ommendations will be reflected in my final Aung San Suu Kyi, who has been out- During my stay in Yangon, I also had the report to the Commission on Human Rights, spoken in urging foreign investors to ‘‘jolly opportunity to meet twice with Dow Jung which I intend to submit at the beginning of well wait’’ before bringing business into the San Suu Kyi at her private home. Former next year. country, said, ‘‘Luxury hotels do not mean a NLD Chairmen U Kyi Maung and U Tin Oo, PRELIMINARY OBSERVATIONS developed Burma.’’ the actual Chairman and other NLD rep- First of all, there are some developments Her photogenic presence, Oxford education, resentatives were also present. which may lead to improvements in human During these meetings, I enjoyed a frank, revered lineage—her father was the hero of rights situation in that country. open and lengthy exchange of views which Burma’s independence—and her absence a. The Government of Myanmar continued touched upon most issues of concern for res- from Burma during the 1970s and ’80s, which to release political prisoners in 1995 although toration of democracy and respect of human distanced her from factional infighting with- the exact number could not be verified. I was rights in Myanmar. I was informed about the in the democrats’ diverse coalition, make particularly pleased to note that among new composition of the Executive Commit- her a magnet for Burma’s discontented. these released detainees were two prominent tee of the National League for Democracy Encounters in Burma’s remote interior political party leaders from the National which is as follow: U Aung Shwe as Chair- confirm her widespread support. A shop League for Democracy, U Kyi Maung and U man; U Kyi Maung and U Tin Oo as Deputy owner in Yaunghwe, in Shan State, made Tin Oo, the latter of whom I met in Insein Chairmen, Daw Aung San Suu Kyi as Gen- sure the coast was clear and proudly showed Prison in 1993 and 1994. off a T-shirt picturing Aung San Suu Kyi eral-Secretary and U Lwin as Secretary. According to NLD leaders only peace, pub- I have also welcomed with great satisfac- with her quote, ‘‘Fear is a habit. I am not tion the announcement, made on 10 July afraid,’’ on the back. A Buddhist monk in lic order and dialogue may lead to democra- tization. Therefore, as a mature political 1995, that restrictions on Daw Aung San Suu Mandalay, flipping through an English Kyi were lifted by the Government of guidebook, came across her photo and ex- party, NLD does not want to return to the situation which was prevailing in 1988 or to Myanmar and that she has been released. I claimed, ‘‘Do you know who this is? Do you? am particularly pleased to note that she was This is our national heroine.’’ act in vengeance. As a responsible political party, NLD is able to control its supporters. released without conditions and is now free Their only aim is to promote a genuine dia- to meet with people and free to travel within STATEMENT OF MR. YOZO YOKOTA, SPECIAL logue with the Government of Myanmar. the country. RAPPORTEUR OF THE COMMISSION ON HUMAN While in Myanmar, I also had the oppor- b. Since the release of Daw Aung San Suu RIGHTS ON THE SITUATION OF HUMAN RIGHTS tunity to see the representatives of the three Kyi, a crowd of two to three thousand people IN MYANMAR TO THE FIFTIETH SESSION OF political parties participating in the Na- is gathering every weekend, Saturdays and THE GENERAL ASSEMBLY tional Convention, namely, the Union Sundays, outside the gate of her residence to Mr. President, I am here before you for the Kayene League, the National League for De- hear what Daw Aung San Suu Kyi and other fourth time since the creation of my man- mocracy and the National Unity Party. In leaders say. During my visit to Myanmar, I date by the Commission on Human Rights in spite of my strong and repeated requests to witnessed personally one of these gatherings. March 1992. And, for the fourth time, I have meet with them in private at my office in The atmosphere was peaceful and the crowd the duty to bring to your attention any the UNDP compound in Yangon. I regret to of supporters were disciplined. To my knowl- progress made toward the restoration of de- say that, this year again, the meetings with edge none of these meetings had disorder. To mocracy and protection of human rights in these political leaders were arranged to take my knowledge none of the supporters was Myanmar. place at a Government guest house. The lo- threatened or arrested for having attended Mr. President, in the interim report which cation and atmosphere were not conducive to such meetings. is brought before your Assembly, I provided a free and unencumbered exchange of views. Yet, I have to state that last week, on Sat- on the basis of the information received a With regard to the detention of political urday 18 November among the crowd which summary of allegations reported to have oc- prisoners, I must express my disappointment gathered that day to listen to Daw Aung San curred in Myanmar during this last year. that this year, despite a formal written re- Suu Kyi’s speech, I have been informed by This include; summary executions, arbitrary quest before going to Myanmar and despite reliable sources that three NLD members detention, torture and forced labour. On pur- my repeated requests while in Myanmar, I were arrested for having intervened with the pose, I did not draw any conclusions or rec- was not permitted to see any such prisoner police who was erecting barricades in front ommendations in my interim report. To do neither in Isein prison nor in Myitkina Jail. of her house. According to the information S 18272 CONGRESSIONAL RECORD — SENATE December 8, 1995 received, the three persons were charged b. Severe court sentences for some politi- ence in Myanmar of the International Com- with assaulting a police officer and were re- cal leaders have been reported and con- mittee of the Red Cross in order to carry out portedly sentenced two days later to two firmed. Information from reliable sources in- their purely humanitarian tasks. years imprisonment. Although I have no de- dicates that there are problems in the field g. The Government of Myanmar should tails of the trial proceedings, it would appear of the administration of justice with regard publicize the ‘‘secret directive’’ which dis- that the accused could not possibly mount to fair trials, free access to defense lawyers, courage the practice of forced labour. This an effective defense with regard to the legal proportionality between the acts committed will indicate and the will of the Government and factual basis for the arrest and incarcer- and the punishment applied and time for of Myanmar to effectively prohibit and sup- ation in such a short period of time. careful examination of the case by courts. press forced labour. Moreover, wide dissemi- c. Cooperation with the Office of the Unit- c. The non-acceptance by Myanmar of nation of the existence of the directive would ed Nations High Commissioner for Refugees ICRC’s customary procedures for visits for promote awareness that forced labour is nei- (UNHCR) is continuing and more than 190,000 places of detention is a negative step to- ther condoned nor tolerated. Myanmar refugees out of estimated total of wards amelioration of their conditions. h. The Government of Myanmar should about 250,000 have so far been repatriated d. There are still cases of torture, arbi- without delay resume its dialogue with Daw from neighbouring Bangladesh. trary killings, rapes, and confiscation of pri- Aung San Suu Kyi. d. The Government is expanding coopera- vate property according to testimony and i. As Special Rapporteur. I call upon the tion with various other United Nations bod- evidence acquired by me. They seem to be Government of Myanmar to resolve peace- ies and specialised agencies such as UNDP, taking place most frequently in border areas fully its difficulties with ethnic minorities UNICEF and UNDCP. Year after year, the by military soldiers in the course of military and to take all appropriate measures to en- work of the humanitarian non-governmental operations, forced relocations and develop- sure respect for human rights and humani- organizations is slowly expanding. Now, ment projects. Many of the victims of such tarian obligations in the situation of armed these organisations are allowed to imple- atrocious acts belong to ethnic national pop- conflicts between the Myanmar Army and ment programmes outside Yangon and able ulations, especially women, peasants, daily the armed ethnic groups. to reach out grass-root people who suffer wage earners and other peaceful civilians j. The Government of Myanmar should dis- from shortage or lack of food, safe water, who do not have enough money to avoid mis- tribute copies of the Universal Declaration medicine, medical care and proper education. treatment by bribing. of Human Rights in Myanmar language to e. In cities like Yangon, Myitkyina and e. I am gravely concerned at the continued all delegates to National Convention which Kyaningtone, I observed that there were visi- reports of forced porterage, forced labour, is to be reconvened tomorrow. 28 November ble signs of relaxation of tension in the life forced relocation which are still occurring in 1995. Such action would indicate to the inter- of the people. It seems that people generally border areas where the Army is engaged in national community the willingness of the enjoy normal life. There were many military operations or where ‘‘regional de- Government to bring the relevant provisions consumer goods in market places where velopment projects’’ are taking place. of the domestic laws, in particular the new many shoppers crowded. Physical develop- PRELIMINARY RECOMMENDATIONS Constitution to be eventually enacted into ments in the construction or improvement of a. As Special Rapporteur, I urge the Gov- conformity with international human rights roads, bridges, buildings and railways are standards. taking place throughout the country and in ernment of Myanmar to sign and ratify the Covenants on Civil and Political Rights and Mr. President, I have analyzed these alle- some border areas. However, just as last gations and have made some recommenda- year, I was informed that only a small por- Economic, Social and Cultural Rights, the Optional Protocol to the Covenant on Civil tions strictly in terms of the international tion of the population enjoy the improved human rights obligations which Myanmar life and the majority who were poor rather and Political Rights, as well as the Conven- tion Against Torture and Other Cruel, Inhu- has freely undertaken. I am particularly suffered from higher prices of basic necessity thinking of the fact that Myanmar is a Mem- goods such as rice and medicine. man or Degrading Treatment or Punishment and the Convention on the Elimination of ber of the United Nations and is therefore f. On the particular question of forced bound to respect the human rights standards labour, I was informed during my recent mis- All Forms of Discrimination against Women. b. The Government of Myanmar should emanating from the United Nations Charter. sion to Myanmar that the SLORC had issued I believe the Government of Myanmar a ‘‘secret directive’’ to discourage the prac- comply with the obligations under the Inter- national Labour Organization (ILO) Conven- should, and has the ability, to fulfill in good tice of forced labour. I am hopeful that this faith the obligations it has assumed. directive would be implemented rigorously. tion No. 29 prohibiting the practice of forced g. As Special Rapporteur, I welcome the portering and other forced labour. f signature of several cease-fire agreements c. Myanmar law should be brought into FLAG DESECRATION line with accepted international standards between the Government of Myanmar and CONSTITUTIONAL AMENDMENT different ethnic minorities. This is without regarding protection of the physical integ- doubt a positive step towards peace. Needless rity rights. Among these international The Senate continued with the con- to say, such agreements should be faithfully standards are the right to life, prohibition of sideration of the joint resolution. respected by both parties. torture, providing humane conditions for all Mr. KERREY addressed the Chair. Mr. President, in spite of these develop- persons under detention and insurance of the The PRESIDING OFFICER. The Sen- minimum standards of judicial guarantees. ments. I have the duty to state that there ator from Nebraska. are still many restrictions on fundamental d. The Government of Myanmar should freedoms and serious violations of human take steps to facilitate and guarantee enjoy- Mr. KERREY. Mr. President, I come rights continuing in Myanmar. ment of the freedoms of opinions, expression to the floor to speak on Senate Joint a. As mentioned above, I welcome the re- and association, in particular by decrimi- Resolution 31, the proposed resolution cent release of a number of political pris- nalizing the expression of oppositional views, that would present to the States the oners. However, I remain concerned about relinquishing government control over the opportunity to amend the U.S. Con- the fact that there are still more than sev- media and literary and artistic community, stitution for the 20th time. It is a very eral hundred persons imprisoned or detained and permitting the formation of independ- straightforward, simple proposal that I ently organized trade unions. for reasons of political activities. I am also believe is not necessary and would, in- concerned about the prevalence of a complex e. All persons including elected political array of security laws which allow the Gov- representatives, students, workers, peasants, deed, create an environment that ernment sweeping powers of arbitrary arrest monks and others arrested or detained under would produce, potentially, the oppo- and detention These laws include the 1950 martial law after the 1988 and 1990 dem- site of that which we seek to produce, Emergency Provisions Act, the 1975 State onstrations or as a result of the National or at least, as I hear, proponents of this Protection Law, the 1962 Printers and Pub- Convention, should be tried by a properly amendment are seeking to produce— lishers Registration Law, the 1923 Official constituted and independent civilian court in and that is, that our people have at Secrets Act and the 1908 Unlawful Associa- an open and internationally accessible judi- least one symbol that they respect, tion Act. cial process. If found guilty in such judicial Various articles in these laws continue to proceedings, they should be given a just sen- that we have a unifying symbol, which be used in combination to prosecute a num- tence; alternatively, they should be imme- is our flag, and that the flag creates, as ber of individuals who were exercising their diately released and the Government refrain a consequence of our reverence for it, a rights to freedom of expression and associa- from all acts of intimidation, threats or re- sense of national purpose, at least in tion. The combination of charges under these prisals against them or their families. that one instance. laws included ones such as writing and dis- f. As Special Rapporteur. I recommend the This proposal, Mr. President, I be- tributing what were described as ‘‘illegal Government of Myanmar to repeal or amend lieve, is well intended in that regard. If leaflets, spreading false information injuri- as appropriate the relevant provisions which I were to identify the thing that trou- ous to the state’’ and ‘‘contact with illegal at present prevent the ICRC from carrying organisations’’. I understand that due to out its humanitarian activities as regards bles me the most about our country such laws and other SLORC orders, the ac- the prison visits. In this regard, I encourage today, it is the question of whether or tivities of the political parties, particularly the Government of Myanmar, in a spirit of not we are developing the kind of per- the NLD, are severely restricted. humanitarian goodwill, to re-invite the pres- sonal character that is needed for the December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18273 Nation to have the courage and the braska, as I think it probably would be, score a point, if you are trying to per- strength to respond to whatever may saying that desecration of a flag is a suade somebody of your point of view, happen to us in the future. That kind violation of the law, someone could the last thing you want to do is to take of individual character development re- call up and report and say, ‘‘Gee, I saw a flag that belongs to you and dese- quires a considerable amount of effort my neighbor do something with the crate it in any fashion, or let it traipse and attention not just on the part of flag in their home and I think it is a along the ground, trample it in any young people who are working to ac- violation of law. I think what they way, disrespect the flag at all. quire it, but adults who are working to were doing with their flag in the home Mr. President, again, I know if the try to help them. I note, in particular, is a violation of the law, and I think answer is no to this constitutional that this proposal is a top priority of you should investigate and make sure amendment, that Members are going to the American Legion and Veterans of they are not desecrating their own flag have to explain to citizens at home or Foreign Wars and the several other inside of their home.’’ to organizations at home, why are you service organizations. In both the VFW Mr. President, I genuinely believe not simply allowing us to express the and American Legion’s cases, they this is going to set off and create the will of the people? Why do you not just have as a top priority as well working very sort of division and the very sort let the Constitution be amended? with young people to help them acquire of problem that we seek to avoid. The clearest answer I can give is that the capacity to be good citizens, to re- I think it is, again, a well-intended I genuinely believe that this constitu- spect their country, to respect their constitutional amendment, but I for tional amendment will produce less re- flag, to respect their role in a free and one do not look forward to an oppor- spect for the flag, not more respect for independent nation and the require- tunity where the people of this country the flag. It will make the flag an object ments that fall to us as individuals in are debating at the local level whether of political controversy. We ought to a free and independent nation. or not it is a desecration of our flag to use the flag to educate our young peo- The loss of respect for not just the have someone sewing the flag on their ple, rather than telling them that they flag but for many other things in our pants. It may end up being if you are have to respect the flag at birth with- country today troubles not just mem- driving down the highway going from, out explaining why, without talking to bers of the Legion but troubles almost say, California to Florida, it may be them and giving them the evidence anybody who is an observer of Amer- legal to have a pair of pants with a flag that many of us as adults already have ican life today. on it in California; it may be illegal in that causes us to tear up and feel emo- I know a couple of days ago, Senator Texas or Mississippi or vice versa. tional around the flag, rather than tak- LIEBERMAN and Senator NUNN, along One may have to get from AAA infor- ing the time and saying: This is what with former Secretary of Education mation about what the various flag or- the cold war was. This is what we did Bill Bennett, made a public presen- dinances are from State to State. I in World War I. There were 50 million tation of proposals to try to deal with think that will, rather than causing us people under arms in World War I, and the deterioration in the quality of pres- to deepen our respect for the flag and 8 million men died in World War I. This entations made on daytime broadcast using it as a symbol to inspire us—not is what happened in World War II. This television. just us as adults but to help us inspire is what men and women of this country I listened a couple weeks ago to Sen- our young people to consider the sac- did in the Second World War. This is ator NUNN on the floor go through rifices that have been made under that what our fighting people did, as well, in some things being broadcast on day- rather glorious symbol—rather than Korea, to stop the Communists from time television, and I had a feeling I inspiring us, it is apt to cause us to de- coming down from the North. This is was on a different planet. Most of us in teriorate into an argument that, frank- what we did in Vietnam. this body probably do not watch much ly, I view as something that will Even as controversial and as difficult daytime television, and it was shock- produce a negative, not a constructive, as it was, there was a movement, a de- ing to hear the sorts of things that result. sire to give the people of Vietnam free- were being not just discussed, but of- This constitutional amendment does dom. Did it come off the tracks? Was it fered as being OK, offered as being ac- not protect our flag. Our flag is already loused up? Yes. But people like myself ceptable, offered as being sort of a le- protected. What this does is say it will who volunteered, who served, did so be- gitimate kind of behavior. extend the protection of our flag to the cause we believed in freedom. That is This deterioration in the quality of protection of somebody else’s flag that what the flag does stand for. We should our character is a great concern. I see they have in their home in any way, not require somebody to respect it by it as a principal motivator behind what shape or form. It will set off a debate passing a law saying, If you violate the I consider, as I said, to be a well-in- about whether or not the Government law, we will punish you. We should tended proposal. has the right to come in, and if it is bring them into our presence and say: Mr. President, one of the things I somebody else’s property, take action Understand what character is all think citizens should understand as we to protect all of us or what they might about. You do not have character if consider this constitutional amend- be doing with their flag. your behavior is willful. You have ment is that our flag is already pro- The next thing I say, Mr. President, character if your behavior is obedient— tected. You cannot burn or desecrate if the flag was not revered, as it clearly obedient to your parents, obedient to our flag. If it is a flag that I own per- is, if it did not set off such a strong your church, to your synagogue, obedi- sonally, you cannot desecrate my flag. emotional reaction, I think a majority ent to your country. That is what char- You certainly cannot desecrate a flag of Americans who have experienced in acter requires us to do. that you and I own. That is our flag. A some fashion people giving of them- If we simply pass a law and say you flag flying over Iwo Jima, the flag that selves—if not giving of their lives—as a have to respect the flag, in my judg- flies at half-mast today around the consequence of being inspired by that ment, what we are going to do is turn Washington Memorial, flags at ceme- flag, if it was not already revered, if the flag into a political instrument. We teries, flags that we own. That is our there really was a threat to our flag, are going to diminish its value. We flag. You cannot desecrate that. It is a you would see a substantial amount of should use it as an object lesson when violation of current law to desecrate in instances out there where people were, we are debating the budget, for exam- any fashion, to approach in any fashion as a part of expressing their anger with ple, when we are debating anything that would be desecration of our flag their country or as part of expressing that requires us to put ourselves on the under current law. their anger with something that their line, to take risks, to take a chance for What this legislation proposes to do Congress is doing or that their Govern- freedom, to take a chance for someone is say not only are we going to protect ment has done to then, they would be else, to say: Rather than just taking our flag, we are going to protect some- setting the flags on fire. They are not. care of myself, I am going to take care one else’s flag from us. The reason they are not is that they of somebody else. If an individual in their home, for ex- know there is a taboo that you are The description of the young people— ample, has a flag in their home and a breaking, that you are violating some- and they were all in their late teens law is passed, say, in the State of Ne- thing holy, and if you are trying to and early twenties, several hundred S 18274 CONGRESSIONAL RECORD — SENATE December 8, 1995 thousand men who landed on the ness to be considerate, the unwilling- that we know is right. We do not need beaches of Normandy 51 years ago—if ness to be obedient, the deterioration to amend our Constitution to get us to you hear that story, and I had the in the value of serving someone else, of respect Old Glory. chance last year to hear it told in de- risking your life for someone else’s UNANIMOUS-CONSENT AGREEMENT tail by men now in their seventies who freedom. Mr. MACK. Mr. President, I ask were on that landing, who went on that I understand and believe it is a great unanimous consent the following voyage, there was no guarantee. In- challenge for this country to try to amendments be the only amendments deed, many arguments were given that build character one person at a time, in order to Senate Joint Resolution 31, this thing was going to be a failure. to say that we are going to reach to and they must be offered and debated People well informed, leaders with our youth and inspire them with a nar- during Monday’s session of the Senate: great knowledge believed that it would rative of this country, the stories of McConnell, relevant substitute; Hatch, fail, that it would not be successful. this country. The sacrifice that led us two relevant amendments; Biden, rel- The sea conditions that day were to where we are today should cause evant; Feinstein, relevant; Hollings, rough. They got sick on the voyage to anyone who pays attention to the his- two relevant amendments. France, and they were terrified of the tory of the United States of America to I further ask that at 9 a.m. on Tues- prospect of being killed by German ar- say that our flag deserves the rev- day, December 12, there be 1 hour 40 tillery and German weapons. They erence that this constitutional amend- minutes for closing debate, to be equal- knew that their lives could end the ment is attempting to give it with the ly divided in the usual form, and the minute they stepped off of that landing force of law. votes occur on or in relation to the It should be the force of our knowl- craft. They knew that was a possibil- amendments beginning at 2:17 p.m., edge, the force of our conscience, the ity. with the first vote limited to the That is what we should do when it force of our willingness to give it back standard 15 minutes and all remaining comes to the flag. When it comes time in kind that causes us to revere this stacked votes limited to 10 minutes in for talking to our young people, teach flag, not the force of the police in our length, with 2 minutes for debate prior them why they should respect the flag. local community, not the force that we to the votes for explanation to be The reason why is that these men who are afraid something bad is going to equally divided in the usual form. serve and women who serve our coun- happen to us if we desecrate the U.S. I further ask unanimous consent that try today are saying, We are going to flag. following the disposition of the amend- be obedient to this country. We are I hope when it comes time to vote ments, the joint resolution be read for going to follow orders because we be- that at least 34 Members of this body a third time and a final vote occur im- lieve that there is a moral principle at will vote against this constitutional mediately without any intervening ac- stake here, and that principle is giving amendment, not because we believe tion or debate. ourselves to someone else, sacrificing that the flag should not be revered, not for someone else, paying attention, because we are not concerned for the The PRESIDING OFFICER. Without being considerate, being willing to do loss of respect for it and other institu- objection, it is so ordered. things that are good for somebody else, tions in this country, but for precisely Mr. MACK. In light of this agree- rather than simply trying to figure out the opposite reason. I hope this debate ment, there will be no rollcall votes how to stick it to them, how to make does not lead us down the road to con- during Monday’s session of the Senate them look bad, how to make them feel verting the flag into a political object, and any votes ordered with respect to bad as well. which I deeply believe it will if we amendments and the final vote will The flag will not be a symbol that in- amend our Constitution. occur beginning at 2:17 p.m. on Tues- spires us if we require respect, if we say I hope we take some stock of our- day, December 12, 1995. to our young people: Now, we just selves, we read a recent assessment Mr. SHELBY. Mr. President, I amended our Constitution. Now we that was done about what our young strongly support Senate Joint Resolu- have a law on the books. people and our adults know about the tion 31, which amends the Constitution There was no law on the books in 1941 history of this country, where we came to protect the flag of the United States when this Nation was attacked by the from, how it was we got to where we from those who would desecrate it. Japanese at Pearl Harbor. We did not are today. We see a daunting challenge The American flag is a national sym- require that of Americans, and say: ahead of us. Far too many Americans bol of the values this country was Under penalty of the police coming do not know how it is that we got to founded on. Many Americans have into your home, if you desecrate our where we are today. Far too many fought and died to defend these values flag we are somehow going to take ac- Americans still believe that freedom is and this country. It is an insult to tion against you. We knew what it somehow free, that it is our birthright, these patriots, their relatives, and all meant to be patriotic. We knew that and that we need do nothing to remain other citizens who hold this country this Nation’s freedom was at risk and free. It is ours; we have a right to it; we dear, to burn or desecrate the symbol this world’s freedom was at stake and can do whatever we want with it. We of our nation and our freedom. responded as a consequence. can act and behave in a willful fashion. I certainly support the right of all I have talked to many members of We do not have to regard at all the citizens to freedom of speech, but that the Legion, the VFW, the DAV, the feelings or lives not only of other peo- right has never been absolute in our Vietnam veterans, American veterans, ple in our presence, but our future as country. That’s why there are laws and many other veterans and citizens well. against libel, slander, perjury, and ob- of Nebraska who say: Just let us amend I know the challenge that this con- scenity. Similarly, our freedom of po- our Constitution. Just let us pass a stitutional amendment presents to col- litical expression is also limited. No law. Let us do this. That is all we are leagues is a rather substantial one. one can legally deface the Supreme asking, is for the opportunity to do it. You fear you are going to be accused of Court building or the Washington I have to say I am not just sympa- not being in favor of protecting our Monument, no matter how much he or thetic with that view, I believe I under- flag if you vote against it. I hope, as I she might wish to protest a particular stand it. I understand what they are said, 34 Members will at least stand on government policy or law. The Amer- trying to do. They are concerned about this floor sometime next week when it ican flag, as the symbol of all the great the loss of respect. They are concerned comes up and say that because we re- values this country stands for, deserves about the loss of respect, not just for spect this flag of ours, because we be- special protection under the Constitu- the flag—where, in fact, it may be one lieve that it should be revered, because tion. It simply is not necessary to com- of the icons left in America where we believe that Americans should mit an act of violence against this flag there is automatic respect—but the make the choice, the personal choice to register protest against the govern- loss of respect for parents, the loss of based upon a personal and active ment. Passage of Senate Joint Resolu- respect for our leaders, the loss of re- knowledge of what this flag represents, tion 31 will help ensure our national spect for institutions, the loss of re- that they will say we do not need a law symbol receives the respect and protec- spect for one another; the unwilling- to cause us to behave in the fashion tion it deserves. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18275 Again, Mr. President, I offer my fit from their sacrifice. It is part of the greatest reasons for protecting the flag strong support for Senate Joint Reso- compact we make with those who will lie in its ability to bind one generation lution 31 and I urge my colleagues to serve. At the time of the Supreme to the next in their love and respect for support it as well. Court decision, it was the law in 48 this country, so that even as the Mr. COATS. Mr. President, today we States. Since that time, 49 State legis- memories of yesterday’s battles begin consider a constitutional amendment latures have called for a constitutional to fade, the importance of what they which allows States to enact laws to amendment to prohibit physical dese- secured continues to hold fast in our protect the American flag. I am co- cration of the flag. No other amend- hearts. sponsor of this amendment and I ment in our history has had the same A flag that flies proudly in this coun- strongly believe that it is necessary to degree of support in State legislatures. try serves as a reminder of how war render this protection to the most im- Tolerance is an important thing in a can change the course of a life, of a na- portant symbol of our Nation. free and diverse society. Agreement tion, of a world, so that even individ- The debate about the flag began in must never be a prerequisite for civil- uals who were never there, who might 1989 when the Supreme Court curiously ity. But tolerance can never be rooted never have heard the stories, recognize determined that it was perfectly legal in the view that nothing is worth out- that those hours of destruction and to burn the American flag as a form of rage because nothing is worth our sac- suffering have altered the future irrev- political speech. This ruling led to rifice. ocably, and that their own liberty was shock and outrage from all across the In Chief Justice Rehnquist’s stinging a hard won prize. United States. Congress immediately dissent to the court decision, labeled It follows then that a desecrated flag took action, passing a statute setting flag burning as ‘‘conduct that is re- mocks the millions who have reached penalties for anyone who physically garded as evil and offensive to the ma- out or fought for all that our flag sym- desecrates the flag. The Supreme Court jority of people—in a category with— bolizes, from the basic liberties written ruled again that the Federal statute murder, embezzlement or pollution.’’ into our Constitution to the dreams of was unconstitutional, violating the The Court’s ruling, he noted, ‘‘found a better future for their families. first amendment. that the American flag is just another That’s why I believe so strongly that Unfortunately, the Senate failed to symbol, about which not only must the physical integrity of the American pass a constitutional amendment to opinions pro and con be tolerated, but flag must be protected. Back in 1989, protect the flag. Today, however, we for which the most minimal public re- the U.S. Supreme Court declared un- are very near this goal, with 56 cospon- spect may not be enjoined. The Govern- constitutional a Texas flag desecration sors to the amendment. ment may conscript men into the statute, ruling that flag desecration The amendment reads simply ‘‘The Armed Forces where they must fight was free speech protected under the Congress and the States shall have and die for the flag, but the Govern- first amendment. power to prohibit the physical desecra- ment may not prohibit the public burn- In response to that decision, the Sen- tion of the flag of the United States.’’ ing of the banner under which they ate overwhelmingly passed the Flag I feel an overwhelming mixture of re- fight.’’ Protection Act, which was also de- gret and thanks—which is the sub- Yes, we must be tolerant but we must clared unconstitutional. The Supreme stance of patriotism—when I consider never adopt and enervating and cow- Court’s action made it clear that a con- the sacrifice of so many for the sake of ardly disdain that strips us of patriotic stitutional amendment is necessary for America. This pride is rooted in one conviction and dulls our ability to be enactment of any binding protection of solid and extraordinary fact—the self- offended by the desecration of vital the flag. lessness of thousands of men and symbols. ‘‘In the world it is called tol- Up to this point, neither House of women who have given their lives to erance,’’ wrote author Dorothy Sayers, Congress has been able to garner the preserve American freedom. ‘‘but in hell it is called despair * * * the two-thirds super majority necessary I believe for the vast majority of sin that believes in nothing, cares for for passage of a constitutional amend- Americans the flag intrinsically rep- nothing, enjoys nothing, finds purpose ment. But because grassroots support resents this pride. Americans do not in nothing, lives for nothing, and re- for this amendment continues to grow, blindly follow traditions. But we do mains alive because there is nothing I’ve joined with Members on both sides care deeply about symbols—particu- for which it will die.’’ of the aisle to again try passing this larly that one symbol of ideas and val- Mr. FORD. Mr. President, yesterday amendment. I’m hopeful that this time ues for which men and women have we marked the bombing of Pearl Har- we’ll get the necessary votes. sacrificed and died in every generation. bor. Many of us can still remember the Clearly no legitimate act of political To desecrate the flag, I believe, is to gripping of our hearts 54 years ago protest should be suppressed. Nor desecrate the memory and make light today, as the realization spread over us should we ever discourage debate and of their sacrifice. that nothing would ever again be quite discussion about the federal govern- Justice Stevens writing in dissent to the same. Yet, I think it is fair to say ment. The narrowly written amend- the 1989 Supreme Court decision said: that there is already a whole genera- ment gives Congress and the States the So it is with the American flag. It is more tion of Americans who have no grasp of ‘‘power to prohibit the physical dese- than a proud symbol of the courage, the de- the meaning World War II has for so cration of the Flag of the United termination, and the gifts of nature that many of us. Young people who might States,’’ without jeopardizing those transformed 13 fledgling colonies into a never hear a parent or a grandparent rights of free speech. world power. It is a symbol of freedom, of tell of the time they felt their commit- On July 14, 1861 a Union soldier wrote equal opportunity, of religious tolerance, his last letter to his wife. He said: and of good will for other peoples who share ment to a way of life being tested, of a My courage does not halt or falter. I know our aspirations. The symbol carries its mes- time they could finally close their eyes how American civilization now bears upon sage to dissenters both at home and abroad and rest, knowing an important fight the triumph of the government and how who may have no interest at all in our na- had been won on the world stage. great a debt we owe to those who went before tional unity or survival. But when those same young people us through the blood and suffering of the There is a type of patriotism that is turn their eyes toward this country’s Revolution, and I am willing, perfectly will- held so deeply that if finds expression flag, I know they understand that in its ing, to lay down all my joys in this life to in concrete things like a patriot’s crip- fabric was woven the dramas of thou- help maintain this government and pay that pled body—or in bits of colored cloth. sands of battles fought on the shores of debt. For men who have risked death in serv- foreign lands and over the lunch Today, our task here in the Senate ice of a flag it is more than just a sym- counters or Main Streets of our own seems trivial in comparison. But if we bol, it is sacrifice you can hold in your home towns. want the flag that hangs in school hand—or trample underfoot in con- There are many good reasons for pro- rooms, over courthouses, in sports sta- tempt. tecting the unique symbol of the Amer- diums and off front porches all across Men and women who we ask to die ican flag, from the basic liberties it America, to continue symbolizing that for a flag have a right to expect that represents to the promise of a better same commitment to country, then it flag to be respected by those who bene- future it holds out. But some of the is a challenge we cannot fail to meet. S 18276 CONGRESSIONAL RECORD — SENATE December 8, 1995 Mr. President, I urge my colleagues manner on their behalf and thank them those pathetic and insensitive few who to join me in voting in favor of this im- for their contribution in making pos- would demean and defile our Nation’s portant legislation. sible this legislation and what I hope greatest symbol of sacrifice, the flag of Mr. President, I yield the floor, and I will be the adoption by the Senate. the United States of America. suggest the absence of a quorum. I yield the floor. Those are some of the reasons I have The PRESIDING OFFICER. The Mr. GLENN. Mr. President, to take kept silent until now. It is now clear clerk will call the roll. up the issue before us on a constitu- that a legislative alternative to The legislative clerk proceeded to tional amendment regarding the flag is amending our Constitution is probably call the roll. a very difficult thing to do. The dif- not going to be possible before we have Mr. WARNER. Mr. President, I ask ferent expressions on the floor are cer- to vote on this. It is now equally clear unanimous consent that the order for tainly ones to consider whether people that those of us who question the wis- the quorum call be rescinded. are for the amendment or against the dom of watering down our Bill of The PRESIDING OFFICER. Without amendment. It is very difficult because Rights have no choice but to stand up objection, it is so ordered. the feelings run so deep in both direc- to the political mud merchants in some Mr. WARNER. Mr. President, I see tions. I do not know whether there is respects, from some of the comments present the distinguished Senator from anyone who is still on the fence with that have been made, and to speak out Ohio on the floor, and I just wish to in- regard to their views on this matter. against those who would deal in dema- form him that I will only be speaking Until today, I have not said a much goguery on this issue. for about 2 or 3 minutes. about this. I talked about it in the It is now clear that those of us who Mr. President, I am a cosponsor of Chamber several years ago when we remember and care deeply about the the flag protection constitutional had the issue before us. But I think sacrifices made on behalf of freedom amendment, and I am privileged to join people who have very deep feelings on have a special responsibility, and we my colleagues in cosponsoring this this can have their feelings and we re- do, to point out that it would be a hol- very important piece of legislation. spect those feelings. I do not quarrel low victory, indeed, if we preserved the It is of tremendous interest to the one iota with people on the other side symbol of our freedoms by chipping constituents of the State of Virginia, of the aisle who have their feelings for away at those freedoms themselves. and particularly those who are mem- whatever reason. But I do think there That is the important choice here. Are bers of the American Legion and the is a danger here. I think the danger is we to protect the symbol at the ex- VFW—both organizations I am privi- that the flag does not need the protec- pense of even taking a small chance at leged to be a member of—and other tion in this argument. What needs pro- chipping away at the freedoms that service organizations. I want to salute tection is really the Bill of Rights, that symbol represents? their contribution and support toward from those who would look at it rather On that score, let us be honest with this legislation. superficially from my view. each other and with the American peo- Today, as I move about the Halls of So until today, I have tended to hold ple. The flag is this Nation’s most pow- the U.S. Senate, I have had the oppor- my tongue and have kept my peace erful and emotional symbol, and it is. I tunity to meet members of those serv- about this issue before us because it is have been here with Senator KERREY ice organizations who come here today no fun being attacked or being labeled once in the Chamber when he said he to speak to Members and otherwise en- as unpatriotic or a friend of flag burn- thought in Nebraska they did not need courage the strongest support for this ers. And I can assure you that I am nei- this because if somebody started to legislation. I salute them. ther simply because I have doubts burn a flag, they would take care of it Those who have been privileged to about the wisdom of a constitutional themselves right then and there and on wear the uniform of our country have a flag burning amendment. I am not tak- the spot. And I agree with that. Back constant—what I call—trustee rela- ing the floor to speak about this issue, home in Ohio, we have almost 11 mil- tionship to that flag, a very special as I say, because some of our feelings lion people, and I think there are very trustee relationship. about the flag are difficult to discuss. few, who, if they saw a flag being I served briefly in World War II in the Feelings run very deep and very strong. burned, would not be willing to take U.S. Navy, and then for a second period Let me make a few things very clear up action against that person or persons. of active duty service in the U.S. Ma- front. It is a gut feeling. I feel that same way rines during the Korean war with a We all, of course, love the flag, and I myself, and I would join into that. brief period of service in Korea. I have would say nobody in this Chamber or But we have to think a little longer always looked upon those opportuni- this country loves our flag more than I score on this, it seems to me. So the ties as a privilege. I would not be a do. We all can make that same state- flag is the Nation’s most powerful and U.S. Senator today had it not been for ment on the floor. I fought hard for emotional symbol, and it is our sacred the training that I received both in the this flag through two wars and rep- symbol. It is a revered symbol, but it is U.S. Navy and in the U.S. Marine resenting the country in the space pro- a symbol. It symbolizes the freedoms Corps. I have always felt that my duty gram, and so on. I am both honored and we have in this country, but it is not here as a U.S. Senator as one to pay proud that few people in this Nation the freedoms themselves. And that is back—particularly those young men have been able to take this flag where why this debate is not between those and women now wearing the uniform of I took it, at least on the first space who love the flag on the one hand and our country—all that I have received flight. That is the first thing I selected those who do not on the other, no mat- by way of not only education but the when I had a personal preference pack, ter how often the demagogs try to tell first lessons of what leadership means. as they called it, along on the trip. I us otherwise. Everyone on both sides of I served my country very humbly— took along little silk flags so I could the aisle politically within this Cham- never to be added to the columns of give them to my children, and they re- ber and everyone on both sides of this those who served with great valor. But main among my children’s most cher- debate loves and respects the flag. The I did volunteer twice to do my duty, as ished possessions to this day. question is how best to honor it, to others saw fit. I also know, more importantly, from honor it and what it represents. That is all a part of what we are in- my own personal experience that every Those who made the ultimate sac- corporating in the support of this reso- last fiber, every stitch, every thread in rifice for our flag did not give up their lution because those of us who served that flag can be looked at as standing lives for just a piece of cloth, albeit remember so well the many friends for someone who gave their life to de- red, white, and blue, and it had some that marched with us, or flew with us, fend it. At my age, I can tell you that stars on it. Not just for the flag. They or sailed with us—whatever the case I probably have more friends buried died because of their allegiance to this may be—who paid the ultimate price, over in Arlington Cemetery bearing si- country, to the values and the rights many others who came back with loss lent witness to our flag as I do bearing and principles represented by that flag of limb and still bear the scars of war. public witness to it in the world of the and to the Republic for which it stands. So I wish to pay special recognition living. Maybe that is why I have so lit- Without a doubt, the most important to all and to speak in a very humble tle patience and even less sympathy for of those values, the most important of December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18277 those values, rights and principles is be weakened. Well, I just cannot bring unique country, our country that individual liberty, the liberty to wor- myself to believe that that is the case. stands as a beacon before other nations ship and think, to express ourselves I think once the American people around this world. You know when you freely, openly and completely, no mat- think this issue clear through, I do not think about someone burning the flag, ter how out of step those views may be think they will buy it, either, whether I truly do feel sorry for them. I hon- with the opinions of the majority. And this passes or not. I do not think the estly do. My initial gut reaction would that is what is so unique about this American people will buy it. Once you be to stomp them, go after them, get country of ours—unique among all the get past the first gut feeling, if you saw them, stop the burning, and so on. It nations around this world—Britain, a flag burning, of doing something would be a natural reaction that so France, you name them, any place about it, as I would—so many of the many people would have as well. I where they have democracy, but ours is people who visited me in my office the know all the ones that visited my of- especially unique in that regard. last couple of days would do the same fice yesterday, I would not have to ask That commitment to freedom is en- thing—would take action themselves them to do that same thing. capsulated, it is encoded in our Bill of against such activity. Much as that But that would be one way of show- Rights, perhaps the most envied and might be the case and satisfying ing our unhappiness with these few imitated document anywhere in the though that might be, I think we have misguided souls. At the same time we world. The Bill of Rights is what to look at the long term on this, get by would be taking action against them, I makes our country unique. It is what the emotion of that moment and think truly would feel sorry for them. Have has made us a shining beacon in a dark what it is we are dealing with. they never known the feeling inside of world, a shining beacon of hope and in- What we are dealing with is the Bill looking at that flag and being proud? spiration to oppressed peoples around of Rights, dealing with that first Have they never been able to appar- the world for well over 200 years. It is, amendment to the Bill of Rights. We ently work in any way for their coun- in short, what makes America Amer- are saying for the first time in our try or the military in war or peace, ei- ica. country’s 200-year history, we are ther one, in which they were called to You may look back a little bit. You going to make, albeit maybe just a take action for a purpose bigger than know, the Bill of Rights came into tiny crack, but it will be a tiny open- themselves? I say this morning that is one of the being because the States at that time ing that could possibly be followed by most exhilarating things that can ever were not going to approve the Con- others. happen to a man or woman, to be able stitution unless we had some of these That first amendment says, ‘‘Con- to represent their country and be additional protections included. And so gress shall make no law respecting an called to something, to a purpose big- those additional protections that were establishment of religion, or prohibit- ger than themselves. I feel sorry for to be included became known as the ing the free exercise thereof;’’ or the people who have never had that experi- Bill of Rights. They are the first series second item, ‘‘or abridging the freedom ence. It is something you cannot really of amendments to the Constitution. of speech, or of the press; or the right explain. Those States were only prepared to ac- of the people peaceably to assemble, We had a parade once I was involved cept the Constitution with the under- and to petition the Government for a in down on Pennsylvania Avenue and I standing that these additional protec- redress of grievances.’’ addressed a joint meeting of Congress tions for each individual and each indi- The part we are dealing with today is down at the other end of the Capitol, vidual’s rights were incorporated in freedom of speech—freedom of speech. and everybody was waving flags out that Constitution. We are talking about freedom of ex- there. Everybody was waving flags. My That is how the Bill of Rights came pression. The Supreme Court has held comment when I opened down there, I to be. The very first item in that Bill on two separate occasions that no mat- said it just meant so much to me to see of Rights, the first amendment in it to ter how much the majority of us, 99.999 all the flags waving coming down our Constitution has never been percent of the people of this country Pennsylvania Avenue. It made a hard- changed or altered even one single disagree, that tiny, tiny, fractional, to-define feeling within that I could time. In all of American history, over misguided minority, still under our not really describe in words, but I hope 7,000 attempts have been made to put Bill of Rights they have the right to that we never lose that hard-to-define amendments through. Just 27 have got- their expression. Their expression is feeling as a nation, as individuals and a ten through, and there was not a single looked at as coming under that free- nation. We would be a lesser country if time in all of American history when dom of speech. we lost that exhilaration, that feeling this was changed, not during our Civil You have to look at it from that of pride when we see a flag and see it War even, not during the Civil War standpoint. Are we going to even make displayed and see people’s excitement. when passions ran so high and this Na- a tiny opening in changing that first But I feel sorry for those people who tion was drenched in blood like few na- amendment that could be followed on, have never known that feeling. I truly tions have been throughout their his- if we have a tiny, tiny, tiny minority do. There would not be any problem tory. That Constitution was not that we do not agree with their reli- with people burning the flag if every- changed. It was not changed during gious beliefs, if we have a tiny, tiny, one had that individual experience. But any of our foreign wars. It was not tiny minority that we do not agree it is by retreating from the principles changed during recessions. It was not with what the press says? There is no that the flag stands for—‘‘principles’’ changed during depressions. It was not body more critical in this whole coun- underlined 16 times—principles that changed during scares or panics or try of the press than the people in this this flag stands for, that if we retreat whatever happened in this country. very room, and me included along with from those principles, that will do That Bill of Rights has not been them. We do not like some of the more damage to the fabric of our Na- changed even during times of great things that happen in the press. tion than 1,000 torched flags ever could emotion and anger like the Vietnam Do we want to open even a tiny, tiny, do. era, when flags were burned or dese- tiny chance that they might restrict The first amendment—I read it a mo- crated far more than they are today. our ability to assemble peaceably? And ment ago—says simply and clearly: Our first amendment was unchanged, do we want to take a tiny chance that ‘‘Congress shall make no law * * * unchallenged, as much as we might we would not be able to petition our abridging the freedom of speech’’—free- have disagreed with what was going on Government for redress of grievances? dom of speech. For 200 years, in good at that time, as abhorrent as we found Those are the things that are covered times and bad, in times of harmony the actions of a lot of people at that in that first amendment, known as the and times of strife, we have held those time in their protests against the Viet- Bill of Rights, along with the other words to mean exactly what they say. nam war. But now we are told that un- amendments that were incorporated That ‘‘Congress shall make no law’’— less we alter the first amendment, un- before the Constitution was signed, be- no law—that will in any way cut back less we place a constitutional limit on fore it even came into being. on that freedom of speech, meaning the right of speech and expression that I think there is only one way to freedom of expression, as the Supreme the fabric of our country will somehow weaken the fabric of our country, our Court has said. S 18278 CONGRESSIONAL RECORD — SENATE December 8, 1995 And now, ostensibly to prohibit to take a chance that any misguided So the amendment is to protect mi- something that very rarely happens group of people in the future would nority points of view with which the anyway, we are asked to alter those even think about going to that end? vast majority of people disagree. Pro- first amendment words to mean that And for what? For a threat that, at tecting the minority viewpoints Congress may make some laws—little least in current years, is practically against the tyranny of the majority is ones—some laws restricting freedom of nonexistent? exactly the point of the first amend- expression. I had been told there was not a single ment and why the Founders only I know the other side says, ‘‘Well, flag burning this year. I was corrected agreed to approve the Constitution what we’re doing is putting this back yesterday, and the people visiting me with the understanding that it was to to the States.’’ They want us to just said they believe there were three they be included. put it back to the States and let the had documented this year. That is one It has often been said it is possible to States decide this. I do not care for per approximately 90 million people in detect how free a society is by the de- that approach. this country. We are about 260 million, gree to which it is willing to tolerate Let me tell you, we are one Nation, close to 270 million. Even if those are and permit the expression of ideas that one Nation under God, indivisible. It true, and I do not question it. The gen- are odious and reprehensible to the val- does not say we are going to split tleman who told me seemed to know ues of that society. You and I and a things up and we will treat our flag dif- what he was talking about, so I accept majority of our fellow citizens find flag ferently and the Constitution will only his version of this. But we are talking burning and desecration to be vile and apply here, the Bill of Rights only ap- about one incident out of 90 million disgusting. But we also find Nazis plies one way in one State and a dif- people. So I find it a little difficult to marching in Skokie, IL, or the Ku Klux ferent way in another State. I do not think that this is a very major problem Klan marching and burning crosses in agree with that. at the moment. Selma, AL, to be vile and disgusting. So I do not want to see us make some But some will ask, is not desecrating But if the first amendment means any- laws, even tiny laws, even the potential the flag obnoxious, abhorrent and of- thing at all, it means that those cruel of a tiny little crack in that Bill of fensive to most, and yet it is within and poor misguided souls, many of Rights that would restrict freedom of our right? You bet. I find it just as ob- them I think demented, have a right to expression. I agree with, I believe the noxious and abhorrent as any person express themselves in that manner, man’s name is Warner. He is a lawyer possibly can, but I try to look beyond however objectionable the rest of us here in town. He was in the Marine that. may find their message. But what about the argument that Corps and prisoner of war. One of his I said before, if I was present when the first amendment is not and has captors brought to him a picture of a somebody started to burn a flag right never been absolute, that we already flag burning in this country and said, there, I have no doubt whatsoever I have restrictions on freedoms of ex- ‘‘There, that shows what the people would join the many others here, and pression and that a prohibition on flag think; that shows that it is no good. the galleries, who would take whatever action to stop it, physical or however burning would simply be one more? See this.’’ After all, it said freedom of speech does He said, ‘‘That is what freedom is all we had to do it. But then you have to think beyond not extend to slander, libel, revealing about. That is what expression is all this. Do we want to change the Con- military secrets or yelling ‘‘fire’’ in a about,’’ or words to that effect. I did stitution of the United States and take crowded theater. That is true. To the not bring his exact words here. He said even a chance of something that is 1- extent that flag burning would incite he was proud of it, and it completely in-a-90 million shot of our citizens others to violence in response does not crushed his captor. The fellow did not doing something like this, if that is the constitute a clear and present danger, know how to react to that. number from this year? and that is what the Supreme Court Yet, he was right. We can say that Of course, desecrating the flag is of- has said in their language. That is this time this law might be about flag fensive. It is offensive to the vast ma- their language. The difference here is burning. The next form of political ex- jority of Americans. Almost everybody. whether it is a clear and present dan- pression that we might seek to prohibit But that is precisely the reason we ger that we have every right to try to would be in the religion area. There are have a first amendment, to protect the avert. lots of religions today. Splinter groups kinds of political expression that are But this argument misses a key dis- I do not agree with at all and, I would offensive and out of step with majority tinction, and that distinction is that say, 99.99 percent of the people of the opinion in this Nation. all those restrictions on free speech I country would not agree with them at The majority opinion said that we just mentioned threaten real and spe- all. But do we make any restriction on should not have civil rights in certain cific harm to other people, harm that how they can practice their religion? parts of this country. We went ahead would come about because of what the No. with it. That was a much more perva- speaker said, not because of what the I do not like a lot of things the press sive problem than this is. But you do listeners did. writes today, but do we make any tiny not need a first amendment to protect To say that we should restrict speech little restriction on the press to pull the expression of political views with or expression that would outrage a ma- back on what they can do? Or assemble which everyone else agrees. That is not jority of listeners or move them to vio- or petition the Government, the other what we need the first amendment for. lence is to say that we will tolerate things that are covered in that first You need the first amendment to pro- only those kinds of expression that the amendment. tect minority points of view that the majority agrees with, or at least does So we can say this time the laws vast majority of people disagree with. not disagree with too much. That would be about flag burning or flag That is what the protection is all would do nothing less than gut the first desecration, to use the exact words. about, and that is what sets this coun- amendment. But what will the next form of political try of ours completely apart from any What about the argument that flag expression be that we seek to prohibit, other nation in the world. desecration is an act and is not a form if we start a crack that has not oc- So I think we have to get beyond just of speech or expression that is pro- curred, not in the 200-plus year’s his- the visceral gut reaction of someone tected by the first amendment? Well, I tory of this country? burning a flag and think beyond that think that argument is a bit specious. I do not think there is necessarily a as to what the implications are if we Anybody burning a flag in protest is slippery slope out there that if we take action against those poor, mis- clearly saying something. They are make this little crack here that every- guided souls that I truly do feel sorry making a statement by their body lan- thing is going to go downhill from for, for reasons I spoke about a mo- guage, and what they are doing makes there and away we go and we are going ment ago. They deserve to be pro- a statement that maybe speaks far, far to see freedom of speech restricted, ev- tected. I may not like it, but they de- louder than the words they may be erything else and we do not know serve to have their rights protected as willing to utter on such an occasion. where that slide will end. I do not much as I deserve to have my rights They are saying something, just the think that will happen, but do we want protected. same way as people who picket, or December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18279 march in protest, or use other forms of destroy it. You are supposed to burn it think that they defiled our flag, but we symbolic speech are expressing them- to destroy a flag. So he holds it up and do not want to let them hoodwink us selves. Indeed, if we did not view flag he is going to burn it and then he says into also defiling our Constitution, no burners as something we find offensive at the same time, ‘‘I am doing this be- matter how onerous their acts may be. and repugnant, we surely would not be cause I do not like the tax bill they It would be a hollow victory, it seems debating their right to do so. passed last year, and I am doing it in to me. We must not let those who re- Let me say a word about something protest. I am burning the flag because vile our freedoms and our way of life that has gotten short shrift in this de- I do not like what they did in Washing- trick us into diminishing them, or even bate, something we should consider ton.’’ Are we going to lock him up? Re- take a chance of diminishing them. very carefully before voting on this member, the proper way to destroy a Mr. President, I do not think we can amendment. I am talking about the flag that is old or has become soiled is let the passions of the moment stam- practical problems with this amend- to burn it. But what if he does it in pede us into abandoning principles for ment. Let us say we pass it, the States protest? What was his intent? Every all time. My gut reaction is that if pass it, it becomes an amendment, and lawyer will tell you that the toughest there was a flag burning or desecration we change the Constitution. Then what thing to prove is intent. here, or somebody showed disrespect a nightmare we would have enforcing We could go through example after for the flag, it would be the same for it. example after example. We have a post- the Presiding Officer and everyone in First off, we are going to have 50 dif- age stamp now that has a flag on it. I this Chamber and all those in the gal- ferent interpretations. There is not was proud when they did that. I wrote lery here—we would probably take our going to be just one Nation on the Con- a letter complimenting the Postmaster own physical action to stop it right stitution or on the Bill of Rights any- General for that, putting that on every here and now. But then we had better more. There are going to be 50 little in- piece of mail going out through the think about, before we take action, terpretations of what is in that Bill of country, to remind people that we have what that Bill of Rights means and Rights. I do not want to see that hap- a flag of the United States that stands how precious it is. In all 200 years, we pen. for something; it stands for principles. have never made a single change to it. But if Congress and States are al- What if you take a postage stamp flag This Nation was not founded until lowed to prohibit the physical desecra- and put a match under that thing and that provision was included in the Con- tion of the flag, how precisely are we it burns up and you say, ‘‘There,’’ and stitution. They would not sign it unless defining the flag? We do not have an of- you stomp on it? Can you be arrested that first amendment was included. If ficial flag, as such, with an exact size, under the new legislation? we are going to continue to be the land type, kind of ink, dyes, fabric, and the I do not know what the courts would of the free and the home of the brave, whole works. There is no official flag, do in a case like that. We can go on I think we had better be very, very as such. So does this amendment refer with all kinds of examples here of how careful. We pledge allegiance to the to only manufactured flags of cloth or this would be very difficult to admin- flag, and that is not an official Govern- nylon of a certain size or description, ister, and it would be subject to 50 dif- ment document. Something came up such as the ones we fly over the Capitol ferent interpretations. I might be able and it became adopted as sort of a here and send out? I send out dozens of to do something in Ohio, and I drive pledge of allegiance. We say, ‘‘I pledge those every year, and I am very proud across the Ohio River to Kentucky, allegiance to the flag of the United to do it. There is no official flag, so West Virginia, or Pennsylvania and the States of America, and to the Republic what size are we talking about? Does it same thing might be illegal. I could be for which it stands,’’ and we reel that refer to the small paper flags on a stick arrested for doing something across the off sometimes at a dinner, while we are we hand out to children at political river, if we are going to have 50 dif- looking at our steak and waiting for rallies or stick in a cupcake at a ban- ferent State interpretations along this the dinner to get started, and we think, quet? Those flags are often tossed on line. Well, OK, and we sort of reel those the floor or in a garbage can at conclu- So I come to the floor today to say words off and do not think about them. sion of an event. I really do not know. that I think—and I regret having to The rest of that pledge we should think I am asking these questions here. feel that this amendment should and about. I think it does tie in with this. How about back in 1976 when we had must be defeated, but I really feel that Then we say those words ‘‘one na- the bicentennial? At that time, they the dangers from it far outweigh the tion.’’ We pledge that we will be one were selling flag bikini swimsuits for threat that we have to the flag from nation. These are the principles our women and boxer shorts for men. I re- those 1 in 90 million, if the figures are flag stands for—one nation. We are member seeing a rock concert one day, correct, Americans that have burned a going to stand before the rest of the and at that time it was an abhorrent flag in protest this year, as I was told world not as North and South, East and thing to me. The guy is strumming yesterday. I had been told there were West, black and white, Republican or away on his guitar, and all at once he no examples this year, but it was cor- Democrat. We will be one nation before takes his pants off on the stage on that rected, and I was told there were three the rest of this world, and every single great occasion because he had flag certified examples of flag burning. person is important, and we will be in shorts on underneath. How about biki- That means 1 for every 90 million every part of this country, and we will nis? Should we permit flags to be worn Americans. be one nation, a nation of might, a na- as bikinis? We know they get soiled Is this something we need to correct tion of resolve. One nation—not split once in a while, too. Think of that. I do as a major problem for this country up with 50 interpretations of the Con- not want to use all these improper with an amendment to the Constitu- stitution, 50 interpretations of the Bill words in the Senate Chamber, but do tion of the United States of America, of Rights for different parts of the we want someone possibly urinating on which guarantees the freedom of country. the flag of the United States, worn as speech and of expression in the Bill of The next words are truly unique. I shorts or a bikini? I do not. I find that Rights? It was not going to be signed have traveled all over the world and abhorrent. But are we going to restrict by the States unless that was included. looked at government documents all that? I probably would like to restrict They felt that strongly about protect- over this world and never seen the next that, I can tell you. ing the freedom of people to express two words anywhere—‘‘under God.’’ We How are we going to define this as to themselves. say, whether we are Protestant, Catho- what happens? How about the guy who I think history and future genera- lic, Jewish, Moslem, Buddhist, Baptist, jogs down the street with a flag T-shirt tions alike will judge us harshly, as Presbyterian—as I am—or whatever on and becomes drenched with sweat? I they should, if we permit people who you are, we recognize there is a higher do not like that, but is it desecration? would defile our flag—or whatever dis- power than all of us. If we just pray He is probably proud that he is wearing respect they pay to the flag, whether and listen a little bit—listen a little the flag. they were stomping on it, or burning bit—maybe we will get enough guid- How about a guy that has an old flag it, or using it as clothing, or what- ance about how to go about helping with grease all over it, and he wants to ever—I think future generations will this country in the future. S 18280 CONGRESSIONAL RECORD — SENATE December 8, 1995 It is under God; not just under get- America, one nation’’—we will keep it to convince my grandparents as they ting money, not just under the greed of one nation, under God. You bet. That is carried my parents to travel halfway power, not just under a single standard something unique in this country. We across the Earth to live under the pro- of enforced religious beliefs which are say there is a higher power, whatever tections of the Bill of Rights and the also covered in that very first amend- our approach to that throne of grace Constitution. They are protections ment of the Constitution. Our religious may be. ‘‘Indivisible’’—we will not do that have drawn millions to our shores. beliefs are not to be imposed by those things that tear our Nation apart and I remember my dear grandmother, that think that they, and only they, make us live under different rules. We who was born in Russia—my mother know and hold the truth. We sure have will live under the same rules as much was about a year old when she was enough of those around these days. as we can. ‘‘And with liberty and jus- brought here—talking about what a ‘‘Under God.’’ Pray a little, listen a lit- tice for all’’—the liberty of oppor- great country this is. With a thick ac- tle, and maybe we will get some guid- tunity, the liberty of sameness, how we cent she said, ‘‘In this house’’—it is ance. are treated by our Government, and funny, she drew her patriotic commit- Then we say ‘‘indivisible.’’ Not rich the justice of equality. ment along verbal lines—she said, with against poor, young against old, work- Thank God for our country. I yield the heaviest accent you can imagine, ers against owners, but indivisible. We the floor. ‘‘In this house we speak only English.’’ stand before the rest of this world as The PRESIDING OFFICER (Mr. It was quite remarkable. It left an im- an indivisible nation. GRAMS). The Senator from New Jersey. pression on me that has lasted all my Then we say words which I have not Mr. LAUTENBERG. Mr. President, life. found anywhere else in the world, six first let me commend our colleague This country has been so good to me almost magic words—‘‘with liberty and from Ohio. Few have a better right to and my family, beyond my wildest boy- justice for all.’’ ‘‘For all’’—underline discuss issues affecting attitudes about hood dreams; even more important, be- that in our discussion today—‘‘for all.’’ our Nation than Senator JOHN GLENN. yond my mother’s most precious Liberty of what? Of course, liberty of His history has been one of service in dreams. It has been that way for mil- opportunity. Sure, we want to see ev- so many areas—as a pilot, as an astro- lions of us, and for that reason I volun- eryone have an opportunity. We want naut, as a Senator. Now I know JOHN teered to do my part in World War II. everyone to get a good education. We GLENN very well. One area he is not so For that reason, although the private want much to have a fair shot at a good in, we have gone skiing together, sector was a very comfortable arena for good job and all the other things that he is not very good there, but in mat- me, I sought public office as a U.S. we know about. ters of profession and decency and Senator. I wanted to do whatever I It is not just for a favored few. It is honor few have the credentials that could to give something back to our not just for the rich and the wealthy JOHN GLENN has. I am delighted to hear country, our country which continues and the land owners. It is for everyone his comments. I share the views of my to serve as a beacon of hope for mil- in this country. And the protections friend and colleague. lions seeking freedom and a better life are for everyone in this country. It is Mr. President, this is a tough issue. around the world. not just for those born to power and It is tough because people of good will One of the reasons I left the private privilege. on both sides feel so differently about sector to come here was I wanted to That first amendment talks of this. the issue. The veterans organizations leave my children, and now my grand- It says we will be free in our religion; that I belong to are very much support- children, an inheritance that went far we will be free in our speech, including ive of taking good care of the flag, of beyond the value of money and other ‘‘expression’’ which we are talking not permitting the desecration, if that assets, and that is a strong America, an about today; we will be free in our as- is possible. America where all people could enjoy sembly; and we will be free in redress I am a life member of the VFW. I their freedom as long as they did not of our Government. ‘‘With liberty and served overseas, World War II, and yet encroach upon others. That is the way justice for all’’—liberty of opportunity we come up with the kind of disagree- I feel about our Nation. That is the and liberty of expression of those free- ments on this matter that we have. I way I feel about the symbol of our flag. doms without any question for every regret it. For that reason, just as I revere the single person—for all. I respect all the colleagues with Constitution and the Bill of Rights, I Then we say ‘‘and justice for all.’’ whom there may be a difference in love the flag, which we at my home fly That means equality. We are all equal, point of view—those who think we need regularly, which embodies our ideals, whether you are President of the Unit- an amendment. I disagree with the de- our liberties, our history and our sac- ed States or you are outside digging a cision they made but I never ques- rifices. In that, I know I stand vir- ditch, you have the same protections, tioned their patriotism nor do I expect tually with all Americans. the same rights as any other person in them to question mine or Senator In my mind, I contrast those patri- this country. It does not say ‘‘except’’ GLENN or Senator KERREY or others otic Americans with the image of the in the case where there are 90 million who have served in uniform. Others flag burner, whether on our shores or and one goes astray we will penalize need not have served in uniform to anyplace else; pictures on the front that guy and lock him out. It does not have a point view that has to be lis- pages of the paper, having our flag say that. tened to and perhaps respected. burned by some in Bosnia. It angers I think that is a dream for which I want to express my strong support, me. We are not there to hurt. We are America still strives. We do not have a Mr. President, to the flag of the United there to help. But the thousands of pa- perfect society, not by a long shot. We States and my outrage at those who triotic Americans I know, who have have a long way to go, whether we are would desecrate the flag in any way. At been touched by the tragedy of war or talking about civil rights or economic the same time, I rise to express my sacrifice for this country, are shocked fairness in our country or the rights of deep concern about amending the U.S. and angered by the view, the image of every kid to get a decent education. We Constitution and the Bill of Rights. someone destroying the flag, burning have so far to go. I am not a lawyer, Mr. President, but the flag. They are showing their con- I am so proud of this country for ad- as a private citizen and as a Senator I tempt for this incredible Nation in dressing these problems. We are willing have always been vigilant about re- which we live. to stand up and address them and do it strictions on the basic freedoms that The flag is a unique national symbol. in an open forum. We do it every day make America unique in the world. I have a special, personal affection for here on the Senate floor. Where else in Perhaps because I am the son of immi- it, as I said, along with all Americans. the world are people so concerned grant parents whose families fled tyr- It is the one great symbol that unites about the rights of every single indi- anny for the promise of freedom, the our Nation. The flag represents more vidual in their nation—nowhere else in Constitution and the Bill of Rights for than 200 years of our history and our this world. me are not abstractions. I was raised to culture. Take the pledge. ‘‘I pledge allegiance respect them as a sacred promise of As a veteran, as a Senator, and as an to the flag of the United States of freedom. Promises compelling enough American, son of immigrants, the flag December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18281 represents noble things to me. And flag fought so hard to secure and that so Mr. President, I think it is dangerous burning is an ugly, despicable, and many since have sacrificed their lives to tinker with the Bill of Rights, and cowardly act. When I have seen it, to preserve, we will lose something far especially with the first amendment. though I have not seen it directly— more valuable, far more difficult to re- I hope my colleagues will stand by when I have seen pictures of it, it sick- store. the first amendment and support our ens me and it saddens me. Those who I have heard it argued that flag burn- laws for the flag by working to make burn the flag are ingrates. They lack ing is not speech but rather conduct, our democracy even stronger. the courage and the character to fight and thus is not protected by the first Thank you. I yield the floor. for change through a well-established amendment. But that argument re- Mr. HATCH addressed the Chair. and fair and just process. Instead, their flects a misunderstanding of the first The PRESIDING OFFICER. The Sen- mission is different. They want to infu- amendment. All speech, in a sense, is ator from Utah. riate and enrage and offend, more than conduct. When one vocalizes, or uses a Mr. HATCH. Mr. President, I have they want to achieve their goals printing press, or types into a com- listened to the various speeches pre- through their attacks on this precious puter, that is conduct. But it is gen- sented today about the flag amend- symbol. They are misguided and they erally protected conduct if it expresses ment. There are people on both sides deserve the contempt of all of us. a political idea. Flag burning is des- who speak on this issue with sincerity. But I am not prepared to sacrifice picable precisely because it expresses a For the life of me, I have a rough time the principle of freedom of expression despicable political idea. understanding some of these argu- embodied in the first amendment to Flag burning insults the United ments. People come to the floor and protect a symbol. I worry about com- States of America. It insults the great- say that they want to protect the flag, promising the Bill of Rights. I am un- est Nation on the face of the Earth. that they love the flag, and that they willing to risk, for the first time in our And that is a disgusting idea. Just are patriotic. I do not question that. history, narrowing the freedoms ex- about every American is outraged by All that this amendment says is that pressed in the first amendment. Dese- that idea. But the whole point of the Congress has the power to prohibit flag cration of our flag is outrageous and first amendment is to protect the ex- desecration. Everybody knows Con- my anger at such incidents wants me pression of ideas, no matter how des- gress is going to want to pass a statute to seek vengeance, to strike back and picable. once the amendment passes. It will be Throughout the history of our Na- to punish those who commit these acts. done reasonably. However, when I think about how tion, we have never banned the expres- With regard to the first amendment, this offensive dissent might be choked sion of an idea solely because others let me point out that this is not an have found it offensive; never. We have off, I conclude that in the process we amendment to the first amendment. never sanctioned speech that hurts run the terrible risk of trampling on a The flag amendment is the correction others, like yelling ‘‘fire’’ in a crowded fundamental right of our democracy, of a faulty Supreme Court decision. theater. But we have never banned the right to disagree, the right to Chief Justice Warren, Justice Black— speech just because it made others un- speak out freely, to exercise dissent no first amendment absolutists—Justice comfortable. And I feel that this matter how disagreeable. Fortas, Justice Stevens, just to men- There is no right more fundamental amendment would do just that for the tion four liberal Justices, have said first time. This is a very, very dan- to our democracy than the right of free that prohibiting flag desecration does gerous precedent, as we heard from speech, the right to assemble, the right not violate the first amendment. Senator GLENN a few minutes ago. A to express ourselves on the issues of Let me just respond to those people little opening often transfers into a importance as citizens. That is why the who think that free speech is an abso- giant hole. lute, that you can never violate it, that first step of a despot is to squelch free Once we ban one idea because it of- speech. Silence the people and you cut fends some people, other ideas will be you can never do anything at all to the throat of democracy. threatened as well. Where do you draw regulate it. First of all, the protection Our first amendment protects every- the line? It is a dangerous and slippery for free speech does not apply to flag one’s right to speak out. It is the citi- slope, and ultimately can lead to tyr- burning. Flag burning is conduct. How zen’s shield against tyranny. It is what anny. can anybody say it is speech when in makes America special. It is what No doubt, those who are proposing fact it is an act? But let us assume for makes America a model for those as- this constitutional amendment are en- the sake of argument that it is speech. piring to freedom around the world. tirely well meaning, but I am reminded Let me just list 20 types of speech that The right of the individual American of something that the great Supreme are not protected by the first amend- to be free is the right to do what one Court Justice Louis Brandeis said. He ment, because people do not realize wishes short of violating the rights of said, ‘‘The greatest dangers to liberty that there is a lot of speech not pro- others, and that includes the right to lurk in insidious encroachment by men tected by the first amendment. Society do or say what is popular, certainly— of zeal, well meaning, but without un- has chosen not to protect these types but it also includes the right to do or derstanding.’’ of expression. The Supreme Court say the unpopular. For it is then, when By no means do I intend to suggest chooses not to do so. actions give offense, that our freedom that those who feel differently on this Let me cite ‘‘fighting words.’’ In is put to the test. It is then, precisely amendment are without understanding. Chaplinsky versus New Hampshire, a then, that we learn whether or not we But I think this expression, this sense, 1942 case, the Court said that fighting are free. embraces the concerns that we have to words can be banned. To defend the right to freedom of have, that our greatest danger to lib- Second, in the 1969 case of speech, freedom of expression, is quite erty often lies within our society. Brandenberg versus Ohio, a very impor- different from defending the speech I would add, Mr. President, that if tant case, as was Chaplinsky, the Court that flows from the exercise of that freedom is lost, it is most likely to be said that speech that incites imminent right. It is perfectly consistent to con- lost not in some cataclysmic war. violence was not protected by the First demn flag burning, as most Americans Americans are too patriotic, too will- Amendment. do, while defending the right, as un- ing, too dedicated a country for that to Third, libel is not protected by the pleasant as it is, for someone to abuse happen. It is most likely to be lost a first amendment, see New York Times it. The flag is a symbol of our freedom. word at a time, a phrase at a time, a versus Sullivan, 1964. Desecrating it is offensive because it sentence at a time, an amendment at a Fourth, defamation Beauharnais ver- desecrates every one of us. But what time. We saw that happen in one of the sus Illinois, a 1952 case. would be even more offensive than the great—formerly great—nations of the Fifth, obscenity is not protected by desecration of the symbol would be the world before World War II in Germany. the first amendment. See Miller versus desecration of the principle that it One of the first things they did was California, a 1973 case. symbolizes. In the end, symbols are start to ban speech, ban expression, Sixth, speech that constitutes fraud, only symbols. If we desecrate the real and the rest is one of man’s darkest conspiracy, or aiding and abetting is thing, the principles our founders hours, or periods, in history. not protected by the first amendment. S 18282 CONGRESSIONAL RECORD — SENATE December 8, 1995 The first amendment is not absolute. it can be regulated under the Supreme McConnell amendment is a killer There is a lot of speech that is not pro- Court’s decision in Kovaks versus Coo- amendment, and I think everybody tected by the first amendment. per, a 1949 case. knows that. Seventh, commercial speech in cer- Eighteenth, zoning of adult movie It replaces the flag protection tain situations is not protected, see theaters—that is a matter of speech, amendment with a statute which can- Central Hudson Gas & Electric versus but see Young versus American Mini not withstand Supreme Court review Public Service Commission, a 1980 case. Theaters, a 1976 case. after Johnson and Eichman, and is far Eighth, political contributions are Certain speech in airports has been too narrow to offer real protection for not protected by the first amendment banned. the flag in any event. under certain circumstances, see Buck- Restrictions on door-to-door solicita- The American Legion and the Citi- ley versus Valeo. tion—that is Schneider versus State, a zens Flag Alliance are strongly opposed Ninth, child pornography is not pro- 1939 case. to the McConnell proposal. tected by the first amendment. That is And, finally, the 21st illustration I Any Senator who has cosponsored the case of New York versus Ferber. will give—and then I will stop—admin- Senate Joint Resolution 31, the flag Tenth, political speech of Govern- istrative fees and permits for parades. protection amendment, or stated his or ment employees in certain situations is That is Cox versus New Hampshire, a her intention to vote for it, must vote not protected by the first amendment— 1941 case. against the McConnell amendment. Pickering versus Board of Education, a These are all limitations on speech You cannot be for the flag amendment 1968 case. under the first amendment. So I find it and the McConnell statute as proposed, How about speech interfering with hard to understand the other side’s ar- elections? That is No. 11. See Burson which will completely replace the flag guments that we are going to interfere amendment. versus Freeman, 1992 case. with the first amendment’s rights and These are all cases where we have Mr. President, I appreciate the desire privileges and that we will be amend- of the Senator from Kentucky to do content-based restrictions on the first ing the first amendment. All 21 of these amendment. something to protect the American examples are certainly exceptions to flag. I know he feels strongly about the So people come out here and claim: free speech, and I am sure that the Su- ‘‘My goodness. We cannot amend the flag. I think that is true about every- preme Court has recognized others. body in this body. Rightly or wrongly, first amendment.’’ So this is not something that is All of these cases have limited the they feel strongly. And I hope that, in unique or new. We are talking about reach of the first amendment, and the end, my friend from Kentucky, will the flag of the United States, the na- rightly so. see his way clear to supporting our tional symbol. Some people claim: Who wants to allow fighting words? constitutional amendment should his ‘‘Oh, my goodness. The rights of free Who wants to allow words that incite amendment fail. speech supersede everything.’’ Well, people to violence? Who wants to ap- But I say to my friend from Ken- they do not. And especially where prove or uphold libel that destroys peo- tucky, with great respect, we have speech is not involved. But why can we ple’s reputations? Who wants to ap- been down the statutory road before on not ban in the interest of patriotism prove defamation? Who wants to allow this issue. It is a dead end, plain and and honor and values in this country, obscenity in this society, true obscen- simple. despicable, rotten, dirty, conduct ity, that is so foul that the community I well recall my friend from Dela- standards decry it? Who wants to up- against our national symbol? It amazes me that these folks come ware, Senator BIDEN lining up a variety hold speech that constitutes fraud, in here and say how they support the of constitutional scholars to support conspiracy or aiding and abetting? Who flag, how wonderful it is, and how ter- his statute in 1989. Senator DOLE, Sen- wants to use commercial speech that is rible it is for people to do these awful ator GRASSLEY, and I, told the Senate improper? How about political con- things—to smear the flag with excre- that the Supreme Court would strike it tributions? How about child pornog- ment, to urinate on it, to tramp on it, down. The statute passed by a vote of raphy? to burn it. What do we stand for around something like 91 to 9. Sure enough, Under current law, the government the Supreme Court took 30 days after may regulate these types of speech here? Have we gotten so bad in this country that no values count? oral argument and less than eight without violating the first amendment. dismissive pages to throw it out in Naturally, all of these are areas where I know people are going to vote for this amendment because they are tired United States versus Eichman. I say the Court, or the law, has said that the with all respect, the Senator from Ken- first amendment does not provide an of the lack of values in our country. They are tired of people just making tucky now invites the Senate down the absolute protection. same barren path. Let me provide my colleagues with excuses for all kinds of offensive con- duct in this country. Have we no stand- The Supreme Court, in its Johnson some reasonable time, place, and man- and Eichman decisions, has made its ner restrictions on expression. ards at all? Do we have to tolerate every rotten, despicable action that position crystal clear: Special legal Twelfth, this is the 12th illustra- protections for the American flag of- tion—is restrictions on when Govern- people take just because we are free people? The answer to that is no, no, fends the Court’s concept of free ment property, such as national parks, speech. can be used. That is Clark versus Com- no. In Johnson, the Court made clear munity for Creative Nonviolence, a 1984 I am willing to admit my colleagues that for a State to forbid flag burning case. are sincere. Bless them for it. But they Thirteenth, picketing in front of a are sincerely wrong to treat the flag whenever such a prohibition protects home—that is Frisby versus Shultz, a like this while they say they uphold it the flag’s symbolic role, but allow such 1988 case. and honor and love it, and yet they will burning when it promotes that role, as Fourteenth, posters on street posts— not vote for a simple amendment that by ceremoniously burning a dirty flag, Members of the City Council of Los An- gives Congress the power to say what is totally unacceptable. The Court says geles versus Taxpayers for Vincent, a desecration of the flag really is. this allows the flag to be used as a 1984 case. That is all it does. Congress does not symbol in only one direction. Fifteenth, restrictions on speech in even have to act if this amendment is Similarly, if flag desecration is sin- prison—the court has held in Turner passed. But we all know it will. Con- gled out for greater punishment than versus Safley, a 1987 case that restric- gress will act. other breaches of the peace or tions can be imposed on speech in pris- Let me just talk a little bit about the incitements to violence, such special ons. McConnell amendment. treatment promotes the flag’s symbolic Sixteenth, regulation of speech in Mr. President, make no mistake role. This, sadly, the Court will not tol- schools—that is the Hazelwood School about it, Senator MCCONNELL and I are erate—they have told us this twice, District versus Kuhlmeier, a 1988 case. the best of friends, but this McConnell now. Seventeenth, the use of soundtrucks amendment absolutely would kill this In Eichman, the Court clearly de- and loudspeakers—that is speech. But flag protection amendment. The clared that no statute which protects December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18283 the flag as a symbol would survive con- in a news photo or from a distant side- as the key section of the proposed act, sub- stitutional muster. The Flag Protec- walk may not like it, but it will not section (a), is concerned, I simply do not see tion Act was held invalid, like the violate a breach of the peace statute. any way in which the statute could meet the Moreover, of course, not every flag tests for constitutionality laid down in Unit- Texas statute in Johnson, because of ed States v. Lopes, 115 S. Ct. 1624 (1995), the ‘‘same fundamental flaw: [they which is physically desecrated is stolen Texas v. Johnson, 491 U.S. 397 (1989), and U.S. both] suppress expression out of con- from the Federal Government, or sto- v. Eichman, 496 U.S. 310 (1990). cern for [its] likely communicative im- len and desecrated on Federal land. Subsection (a) of the proposed Act would pact.’’ [496 U.S. at 317]. Even though Indeed, this statute in no way penalize the conduct of flag-burning when Congress had attempted to write a changes the result in the Texas versus the flag burner does so with the primary pur- broader statute to avoid the problems Johnson case, which creates the prob- pose and intent to produce a branch of the lem bringing us to the floor of the Sen- peace or imminent violence, and in cir- of the Texas law, by making all phys- cumstances where the offender knows it is ical impairments illegal except for cer- ate in the first place. reasonably likely to produce imminent vio- emonial disposal of a worn flag, the In Johnson, the State of Texas de- lence or a breach of the peace. There is no Court found the act unconstitutional fended its flag burning statute on the general federal power given to Congress to anyway because ‘‘its restriction on ex- ground that it prevented speech that prevent breaches of the peace or safeguard pression cannot be justified without caused violence or breaches of the against imminent violence. For Congress to reference to the content of the regu- peace. The Court brushed aside Texas’ assert this power, presumably under the evidence that witnesses of Gregory commerce clause, would result in the statute lated speech.’’ [Id. at 318]. As Prof. being struck down under United States v. Richard Parker of Harvard University Johnson’s flag burning were seriously Lopez, 115 S. Ct. 1624. If Congress cannot pass Law School has put it, the Supreme offended and might have caused dis- the Gun Free School Zones Act (which pre- Court found the act invalid because it order. Instead, the Court simply noted sumably had a similar purpose) I can’t imag- ‘‘involves taking sides in favor of what that— ine that subsection (a) of the Flag Protec- is ‘uniquely’ symbolized by the flag— No disturbance of the peace actually oc- tion and Free Speech Act would survive ei- our ‘aspiration to national unity.’ ’’ curred or threatened to occur because of ther. The alternative ground for the Act, Indeed, my friend from Kentucky, Johnson’s burning of the flag. . . . The state’s position . . . amounts to a claim that Congress’s power to protect the national has made very clear in his remarks symbol, has been clearly ruled out by John- upon introducing the bill what this bill an audience that takes serious offense at particular expression is necessarily likely to son and Eichman, where the court has indi- is all about—it is not about breaches of disturb the peace and that expression may be cated as clearly as can be that flag desecra- the peace or theft. It is about protect- prohibited on this basis. Our precedents do tion, because the court believes it to be a ing the flag as a symbol. He said on Oc- not countenance such a presumption. . . .’’ protected form of speech, is a symbolic act tober 19, 1995: [491 U.S. at 408]. which in no way harms the symbolic value of the flag. Indeed, in the Court’s view, the Flag burning is a despicable act. And we The Court also determined that desecration of the flag simply reinforces the should have zero tolerance for those who de- Johnson did not run afoul of the fight- symbolic value of the flag. Congress is thus face our flag . . . I am disgusted by those ing words doctrine. The Court con- without power to prohibit flag burning or who desecrate our symbol of freedom. ... cluded that ‘‘no reasonable onlooker flag desecration by statute, as we made clear Mr. President, those words reinforce would have regarded Johnson’s gener- in the Eichman case, when an assertedly the bill’s fundamental conflict with alized expression of dissatisfaction content-neutral federal statute was struck Johnson and Eichman. So does the down. with the policies of the Federal Gov- As you may remember, when Judge Bork finding in the proposed statue which ernment as a direct personal insult or describes our flag as: and I testified before the Senate Judiciary an invitation to exchange fisticuffs.’’ Subcommittee holding hearings on the stat- a unique symbol of national unity and rep- Thus, section (a) of the proposed stat- ute, we predicted the statute would be held resents the values of liberty, justice, and ute does not cover Johnson. Nor does unconstitutional, and we were proven right equality that make this Nation an example by Eichman. Subsection (a) of this statute of freedom unmatched throughout the world. section (b) cover Johnson, because the flag he burned did not belong to the would also be seen by the courts for what it But many who burn the flag disagree United States. It was taken from a is, an attempt to do by statute what can with every word of that finding. Some only be done by constitutional amendment. bank building. Finally, section (c) is of them believe the flag represents op- Given the decisions in Johnson and Eichman, inapplicable—Johnson burned the flag pression, exploitation, and racism. and given the current composition of the in front of city hall, not, apparently, They are wrong, but the Supreme court, the court would undoubtedly adhere on federal land. to its view that such a statute is an attempt Court has made clear that Congress If Gregory Johnson could not be held to prohibit what the court regards as pro- and the States cannot protect the flag criminally liable under the Senator’s tected speech. It should be remembered that in order to preserve its symbolic value proposed statute, who could? the statute struck down in Johnson itself in one direction. I believe the Supreme I ask unanimous consent to enter was grounded in similar notions about the Court is no more correct than it was in need to prevent violence and prevent into the RECORD letters from Prof. breaches of the peace, and the court simply Dred Scott and Plessy versus Ferguson, Richard Parker of Harvard Law School, but we cannot overrule such errors by decided that a statute calculated to prevent Prof. Steven Pressler of Northwestern the expressive act of flag burning could not statute. Law School, concerning the McConnell While it is true that flag desecration be regarded as devoted to a constitutional statute. purpose. can be penalized pursuant to a general There being no objection, the letters I have heard it argued that the Supreme breach of the peace statute, in the were ordered to be printed in the Court’s recent decision in Wisconsin v. same way other breaches of the peace Mitchell, 113 S.Ct. 2194 (1993), which upheld RECORD, as follows: are punished, offering special protec- an enhanced sentence for aggravated battery tion for the flag is intended to enhance NORTHWESTERN UNIVERSITY, because the defendant chose his victim on the flag’s symbolic role. The Court will SCHOOL OF LAW, the basis of his race, somehow suggests that not buy it. Chicago, IL, December 4, 1995 the current court would be more lenient in RRIN ATCH upholding statutes that implicate what has Further, even if this statute was Hon. O G. H , Chairman, U.S. Senate Judiciary Committee, been regarded as conduct protected by the upheld, it is, with great respect, very Washington, DC. First Amendment. There is no merit to this inadequate. Not every flag desecration DEAR SENATOR HATCH: You have asked for argument. In Mitchell the court made clear will cause or likely cause a breach of my thoughts regarding the constitutionality that the Wisconsin statute passed constitu- the peace or violence. That will depend of S. 1335, the Flag Protection and Free tional muster because the conduct at which on circumstances. Frankly, I do not Speech Act of 1995. I understand that the it was addressed (the infliction of serious want the protection of the flag to be sponsors of the legislation, based on an anal- bodily harm) was ‘‘unprotected by the First limited to those narrow circumstances. ysis performed by the Congressional Re- Amendment.’’ The conduct at which the Flag And these are very narrow cir- search Service, and apparently also advised Protection and Free Speech Act of 1996 is di- by some legal scholars (whose names, as far rected—burning or otherwise destroying the cumstances. A flag desecrated in the as I know, have not been made public) have American Flag in order to incite others—is midst of a crowd of those sympathetic asserted that the act would be able to pass the destroying the American Flag in order to to the desecrator will not elicit a pen- muster in any court review of the act. In my incite others—is the very conduct which the alty. Those who see it on television or view that is simply incorrect. At least as far Supreme Court declared in Johnson and S 18284 CONGRESSIONAL RECORD — SENATE December 8, 1995 Eichman is protected by the First Amend- are threatened, they must be defended. Root- The general principle at work is this: The ment. Mitchell simply has no application. ed in our hearts, they are expressed in sym- majority of the Court believes that flag dese- The two subsections of the Flag Protection bols—especially, the symbol of the flag—and cration implicates the First Amendment be- and Free Speech Act of 1995, (b) and (o), so, we agree, it is those symbols that we cause the flag itself is ‘‘speech.’’ Since the which have to do with the stealing or conver- must protect. flag communicates a message—as it, undeni- sion of a flag belonging to the United States, On October 19, Senator McConnell gave ably, does—any effort by government to sin- and the stealing or conversion of a flag on voice to this basic agreement on the floor of gle out the flag for protection must involve federally-controlled land could conceivably the Senate. He is, he said, ‘‘disgusted by regulation of expression on the basis of the survive scrutiny under Lopez (since it is the those who desecrate our symbol of freedom.’’ content of its message. The statutory provi- task of the federal government to patrol fed- ‘‘[W]e should have zero tolerance for those sions cited by the memo do not ‘‘single out erally-controlled property), and it might be who deface the flag,’’ he insisted. the flag’’ for protection. Hence, they would regarded as the task of the federal govern- Yet he said that not to support the flag satisfy the Court. But Senator McConnell’s ment to punish theft and destruction of fed- amendment—but to oppose it. He proposed, proposed statute, by its terms, does ‘‘single eral or private property on federal lands. instead, statute to stem the tide. It would, out the flag for protection.’’ Hence, it would Even if this were so, however, and it is by no he said, serve his purpose; showing ‘‘zero tol- be struck down by the Court, as in 1990. means free from doubt, this would do noth- erance for those who deface the flag’’ by pun- The proposed subsection dealing with in- ing to overcome the result in the Johnson ishing those ‘‘who desecrate our symbol of citement of violence is, the memo advises, case, and others like it, where the flag de- freedom.’’ He, no doubt, means his statute to ‘‘quite likely’’ to pass constitutional muster. struction is prohibited by state govern- be interpreted in light of his stated purpose. The only virtue of this advice is in its quali- ments, or takes place on non-federally con- But—for that very reason—his statute would fication. Even at that, it is wholly mislead- trolled property. be an empty gesture, a nullity, another de- The whole purpose of the efforts under- pressing instance of Washington’s alienation ing. For—as the memo notes—the Court has taken by the Citizens Flag Alliance and from reality. recently refused to allow government ‘‘to countless numbers of Americans working at The reason is that his proposed statute punish only those ‘fighting words’ of which the grass roots level (which have so far re- would, predictably, be struck down by the [it] disapproves.’’ The memo imagines that sulted in the resolutions passed by forty-nine Supreme Court—just as, in 1990, another the subsection would not run afoul of this state legislatures asking Congress to send statute, sold as a detour around a constitu- principle because it supposedly doesn’t make the Flag Protection Amendment to the tional amendment, was struck down. Law- a ‘‘distinction between approved or dis- States for ratification, and the passage of yers sensitive to the the spirit and tendency approved expression that is communicated’’ the Amendment by much more than the req- of the Court’s recent decisions know this, by destruction of the flag. It thereby makes uisite two-thirds vote in the House of Rep- even if we wish it were otherwise. the same mistake it made before. The memo resentatives) was to reverse the result in Then, on November 8, a strange thing hap- fails to grasp the Court’s fundamental idea: Texas v. Johnson, and give back to the Amer- pened. Mr. John R. Luckey (a Legislative At- that singling out the flag for protection in ican people their right to protect their cher- torney in the American Law Division of the and of itself makes a ‘‘distinction between ished national symbol in the manner they Congressional Research Service at the Li- approved and disapproved expression’’ and, had enjoyed prior to 1989. This included pro- brary of Congress) wrote a two-and-a-half so, violates the Constitution as it now tection by either state or federal govern- page memo stating—flatly and blandly—that stands. ments, as provided for by the Amendment. the proposed statute ‘‘should survive con- Thus we come back, again and again, to As I indicated in my testimony before your stitutional attack’’. It is that very odd Senator McConnell’s statement of the pur- subcommittee six years ago, five years ago, memo that I want now to answer. pose of his proposed statutory detour around Though the memo demonstrates a trun- and most recently last summer, a Constitu- a constitutional amendment. (In adjudicat- cated understanding of constitutional law tional Amendment is a traditional manner in ing the constitutional validity of statutes, and the Supreme Court, it does get some- the Court looks to the statements of their which the American people have corrected thing right. It notes that the proposed stat- sponsors.) His purpose is to single out the erroneous decisions by the Supreme Court, ute would not reverse the decisions to which flag for protection. Plainly—according to the and in which they have asserted the sov- it is a response. It would not protect the flag majority of the Justices—this purpose is un- ereign prerogative, which belongs to them against ‘‘physical desecration’’ in most in- constitutional. According to the Justices, alone. stances—or even the instances involved in As you have indicated many times, the the only way to realize this purpose is to the Johnson and Eichman cases. to show its Flag Protection Amendment is a worthy amend the Constitution, as was provided for ‘‘zero tolerance’’ for those who ‘‘deface the measure, expressing noble ideals of decency, flag,’’ it would reach but a few quirky situa- in Article V by the framers of that docu- civility, and responsibility very much in tions; where there is a ‘‘primary’’ purpose ment. keeping with American traditions. It should and intent and a probability to ‘‘incite or Is there no way around it? Those reluctant not be sidetracked by a Quixotic quest for a produce imminent violence or a breach of to take up the responsibility assigned by Ar- statutory solution. I urge you to do all you the peace’’ or where the flag was stolen from ticle V seem to be grasping at any straw. Re- can to persuade the Senators who think a the federal government, on or off federal cently, for example, I’ve heard that some are statute will work that they are misinformed, lands. It would make a little mole hill our of citing Wisconsin v. Mitchell. There, the and that the proposed statute, if passed, a big mountain. Court upheld a statute under which a ‘‘sen- would be declared unconstitutional with re- On everything but this point, Mr. Luckey’s tence for aggravated battery was enhanced’’ gard to subsection (a), and that the remain- memo is off base. Its reading of constitu- because the batterer ‘‘intentionally selected ing subsections would do little to correct the tional law is, at best, utterly wooden. It is an his victim on account of the victim’s race.’’ unjust result of Texas v. Johnson. invitation—whether wide-eyed or winking— A prohibition of the battery of a person, the I appreciate the opportunity to share my to another slap down of the Congress by the Court said, is not ‘‘directed at expression’’ views with you, and I would be happy to help Supreme Court, reminiscent of the 1990 fi- and so does not implicate free speech. Con- in any further manner I can. asco. sideration of the motive for a battery—in Yours Sincerely, The subsections dealing with destruction this case racial discrimination, a motive STEPHEN B. PRESSER, of a flag stolen from the federal government condemned under several civil rights stat- Raoul Berger Professor of ‘‘present no constitutional difficulties,’’ ac- utes—doesn’t offend the First Amendment. Legal History. cording to the memo. It offers two bases for This was an easy case. It has no relevance this misleading advice. First, it cites a few whatsoever to Senator McConnell’s proposed HARVARD LAW SCHOOL, passages and footnotes in Court opinions statute. For his statute, which singles out Cambridge, MA, December 4, 1995. which leave undecided the constitutional va- the flag for protection, is directed at expres- Senator ORRIN HATCH, lidity of prohibiting destruction of a flag sion. Its purpose, stated by the Senator, is to U.S. Senate, owned by the government. It reads those pas- enforce ‘‘zero tolerance for those who deface Washington, DC. sages and footnotes as deciding that such the flag.’’ DEAR SENATOR HATCH: Over the last sev- prohibition is valid. It thus makes the mis- eral months, I’ve found, in countless con- take that law students soon learn not to What if—to avoid a constitutional amend- versations with all sorts of people about the make. A question left open is not a question ment—Senator McConnell were to take back proposed constitutional amendment to allow decided. How it will be decided depends on his statements in favor of the flag? What if our representatives to prohibit ‘‘physical the general principles—and tendencies—that he said he never meant it? The Congressional desecration’’ of the flag, that everybody are moving the Court. Record could not now be erased. The Court agrees. We all agree that the flag is the As the other basis for its advice, the memo would see it. And, in any event, it would unique expression of our aspiration, as notes three present statutory provisions look at the terms of his proposed statute. Americans, to national unity. We agree that, which prohibit the theft and destruction of Those terms make plain its purpose, a laud- nowadays, this aspiration is under assault by government property of all sorts in general. able purpose, to single out the flag for pro- a looming tide of disrespect for the very idea By citing these provisions, it demonstrates tection. Yet that purpose is exactly what of- of shared national values, to say nothing of again that its author simply does not grasp fends the majority of the Justices. patriotic values. We agree that this tide the general principle that the majority of To make good on Senator McConnell’s pur- must be stemmed, that when these values the Court has been invoking since 1989. pose, there is one and only one means under December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18285 the Constitution: a constitutional amend- does not amend the first amendment. Moreover, I am astonished that any- ment. It overturns two erroneous Supreme one can claim that respect for our flag Sincerely, Court decisions. would mean something else if we enact RICHARD D. PARKER, To obediently accept the Supreme legislative protection of the flag. I am Professor of Law. Court’s decisions in Johnson and Mr. HATCH. These letters make it surprised anybody would argue that. Eichman, as my friend from Kentucky very clear that the analysis by CRS is Until 1989, 48 States and the Federal would, when we know the Court is flawed. Government prohibited flag desecra- My friend from Kentucky wrote an wrong, is to read article V out of the tion. Did any of my colleagues believe article in the December 5, 1995, Wash- Constitution, and is to abdicate the their respect for the flag meant some- ington Post conceding that the Su- Senate’s responsibility to the people thing less in 1989 than it did after the preme Court had erred in its two deci- and to the Constitution. misguided Johnson decision? My friend is also dead wrong to sug- sions, Johnson and Eichman. As he This issue boils down to this: Is it not gest that this amendment authorizes said: ‘‘Much to my disappointment, the ridiculous that the American people legislation to compel anyone to respect Supreme Court has found that laws have no legal power to protect their be- the flag. It does not. No one can be protecting the flag run afoul of the loved national symbol? forced to salute, honor, respect, or first amendment. It is hard to believe Let me just reiterate what I said this pledge allegiance to the flag under this that burning a flag can be considered morning. On Monday we will offer an amendment. So my friend’s invocation ‘speech.’ But a majority of the court amendment which deletes the States of speech codes is, frankly, totally ir- has found this despicable behavior to from the amendment. The amendment relevant. It is a straw argument. be ‘political expression’ protected by will read as follows: ‘‘The Congress Finally, my friend from Kentucky the First Amendment.’’ shall have power’’—the Congress shall says ‘‘it is hard to draw the line’’ in de- It is clear that Senator MCCONNELL have power—‘‘to prohibit the physical termining what to protect. He cites disagrees with the Supreme Court’s de- desecration of the flag of the United vulgar or offensive renditions of our cision. Although, as he says, ‘‘it is hard States.’’ That is all it says. It is a very national anthem and asks, ‘‘How can to believe,’’ the Court did hold that narrow amendment that says, ‘‘The we single out the flag for special pro- flag burning was speech. As the Court Congress shall have power to prohibit tection but not our country’s song?’’ said in Johnson, ‘‘The expressive, the physical desecration of the flag of Two hundred-plus years of history give overtly political nature of this conduct the United States,’’ not the States. So us the answer. There is no other sym- was both intentional and overwhelm- Senators concerned about the mul- bol like our flag. Moreover, while the ingly apparent.’’ In these cir- tiplicity of State laws protecting the national anthem is a great song, it is cumstances, said the Court, ‘‘Johnson’s flag need not worry about that any- not a tangible symbol of the country. burning of the flag was conduct suffi- more. Ironically, the Senator’s question an- ciently imbued with elements of com- There would be one definition of swers itself: our national anthem, the munication, to implicate the first ‘‘physical desecration’’ and one defini- ‘‘Star Spangled Banner,’’ is about our amendment.’’ [491] U.S. at 406] tion of ‘‘flag of the United States.’’ My friend makes a critical mistake Nation’s unique symbol. And those definitions will be decided These arguments get repeated over in acquiescing to the Supreme Court’s by the Congress of the United States, and over, but the flag protection erroneous decision. Simply because as it should be. And it will apply every- amendment is no precedent for any where. And it will be a narrow defini- five Justices of the Supreme Court say other legislative action because of the that flag burning is protected speech uniqueness of our flag. Even the Clin- tion. I have no doubt about it. It will does not mean that the Court has cor- ton Justice Department acknowledged be one that will work and one that will rectly interpreted what the Constitu- that the flag stands apart, sui generis, lend credibility to our values in our so- tion means. It is, no doubt, the prov- as a symbol of our country. ciety, our values of patriotism, honor, ince of the judiciary to ‘‘say what the Right here behind me is a picture of dignity, country, family. That is what law is,’’ in Chief Justice John Mar- what some of my colleagues call free- this is all about. shall’s immortal words in Marbury ver- dom of speech—it is pathetic. Senator This is a chance to have that debate sus Madison. But it is not the exclusive MCCONNELL said here today that pro- on values, honor, dignity, family, coun- responsibility of the courts to interpret hibiting the burning of the flag try, yes, patriotism. I think that this the Constitution. ‘‘strikes at the heart of our cherished amendment is worth it alone. I really In fact, the Framers of the Constitu- freedom’’—as overblown and exagger- do. tion believed that Congress would have ated a statement as we will hear in this And those definitions that would be an independent duty to interpret the debate. set by Congress would need the Presi- Constitution and to correct errors of Even one of the lawyers the Senator dent’s signature as well because it constitutional dimension. That is one from Kentucky relies upon for his prop- would be a statute. And either the of the purposes of article V of the Con- osition on the issue, Bruce Fein, has President will sign it, or veto it if he stitution, which permits the amend- written that Senate Joint Resolution did not like it. So you have all these ment of the Constitution after two- 31, the flag protection amendment, checks and balances. Let us trust the thirds vote of Congress and three- ‘‘. . . is a submicroscopic encroach- people on this matter. fourths approval by the States. It is ment on free expression . . .’’ The American Legion and the Citi- clear that the Framers intended article My friend from Nebraska says we zen’s Flag Alliance reluctantly support V to be used to correct errors in con- should not compel patriotism. He says this compromise. We have gone more stitutional interpretation made by the that respect for the flag would mean than halfway, and I ask the opponents Supreme Court. Indeed, the 11th something less if we were compelled to of the amendment to accept this com- amendment, the first amendment rati- offer such respect. promise. Let us at least protect the fied after passage of the Bill of Rights, Mr. President, this straw argument is flag at the Federal level. We can do it was approved by Congress and the offered over and over again. The flag narrowly and do it fairly and do it in States specifically to overrule a par- protection amendment does not au- the right manner. ticular Supreme Court decision, thorize any law which compels anyone I am just going to say one or two Chisolm versus Georgia. to respect the flag, honor it, pledge al- more words about the amendment. It It is our responsibility to correct the legiance to it, salute it, or even say amazes me that people come on this Supreme Court when it is wrong. And nice things about it. It does not require floor and say, ‘‘It’s terrible what surely it was wrong in calling this of- anything like that. So that is a straw they’re doing to our flag. We should fensive, terrible conduct protected argument. not allow people to smear excrement speech. There is an obvious difference be- on it and put epithets and obscenities Since my friend finds it ‘‘hard to be- tween prohibiting someone from phys- on it, and we shouldn’t allow them to lieve burning a flag can be considered ically desecrating our flag and compel- burn it and trample on it, and it is so speech,’’ as I do, he ought to agree with ling someone to respect it and salute terrible,’’ but they are unwilling to do me that the flag protection amendment it. anything about stopping it. S 18286 CONGRESSIONAL RECORD — SENATE December 8, 1995 Some had the temerity to say that an article entitled ‘‘The Deficit Is turned out to be $72 billion in excess of the ‘‘Well, we don’t have that many flag Budget Battle’s Red Herring,’’ Profes- actual deficit of $255 billion. So who can hon- burnings and that many flag desecra- sor Eisner states, and I most strongly estly predict now what tax revenues and out- lays will be in seven years? tions.’’ Well, I submit we do, because concur, that balancing the budget is a The Congressional Budget Office projects every flag desecration that occurs—and ‘‘brief armistice in a much larger war.’’ 2.4% annual growth in real gross domestic we have had them every year—every What we are really engaged in is a fun- product and 3.2% inflation. The Clinton ad- one that occurs is covered by the press damental disagreement about the role ministration’s Office of Management and and goes out to millions of people in of Government in our lives. Budget projects 0.1 to 0.2 percentage point this country, every last one. And, The real objective of the so-called more growth and 0.1 percentage point less in- frankly, it affects everybody in this revolution is the effective dismantle- flation, and those differences would so affect revenues and outlays as to reduce accumu- country every time we see this kind of ment of progressive government as we lated deficits by almost $500 billion in seven heinous conduct. have come to know and benefit from years, and more than double that amount in It is time for us to quit using these for half a century. Federal spending on 10 years. By 2005, these flight differences in phony arguments and stand up and health care for the elderly, the poor, projections would amount to half of the vote to honor our national symbol by and the disabled is being drastically re- CBO-projected deficit. That suggests that merely giving Congress the power to duced. Cutbacks are contemplated in raising the OMB projected growth less than honor it, if it so chooses, with the right our investment in education, the envi- 0.2 percentage point and lowering the pro- ronment, the arts and sciences, and jected inflation rate 0.1 percentage point of the President to veto whatever they more would project a balanced budget by 2005 do, if he or she so chooses. foreign relations. These cuts typify the without any cuts in government programs. Mr. President, I think we debated great differences in priorities and val- Newt Gingrich insists that the budget pro- this enough today. ues which distinguish the opponents jections must be based on ‘‘honest scoring,’’ f from the proponents of progressive gov- implying somehow that Bill Clinton’s OMB ernment. And all of this occurs while is dishonest. But who is to say which projec- MORNING BUSINESS we focus on that red herring, the bal- tions are correct? Many private forecasters Mr. HATCH. I now ask unanimous are more optimistic, and an increasing num- anced budget. ber of economists—and this newspaper’s edi- consent that there now be a period for Professor Eisner accepts the premise tor—even suggest that considerably higher the transaction of routine morning that government should provide activi- growth is feasible. Even a modest 0.5 per- business with Senators permitted to ties and services that the private econ- centage point more, to 3% a year, would wipe speak for up to 10 minutes each. omy would not provide or would not out the deficit well within seven years. The PRESIDING OFFICER. Without provide adequately. And he recognizes But Sen. Phil Gramm gave away the game objection, it is so ordered. that many of us believe that the pro- when he argued on ‘‘Face the Nation’’ re- cently that a balanced budget that would f grams developed over the last 50 years permit more government spending was unac- THE ROLE OF GOVERNMENT are ‘‘indispensable both to stable eco- ceptable. No deficit projections, accurate or nomic growth and the social compact inaccurate, should be used as an excuse to Mr. PELL. Mr. President, I once on which our economic system and our avoid essential cuts in projected government more express reservations about the society depend.’’ outlays. premise upon which we are proceeding Mr. President, I ask unanimous con- And that is the real issue—not deficits and in attempting to balance the budget in sent that the text of Professor Eisner’s debt but the role of government. Conserv- ative economists arguing for a balanced 7 years. I am mindful that both my article be reprinted in the RECORD. party and the President have agreed to budget have long made clear that it is not There being no objection, the article deficits in themselves that concern them but undertake this herculean task of reach- was ordered to be printed in the the fact that, given public aversion to taxes, ing an accord where the difference be- RECORD, as follows: preventing deficits would hold down govern- tween what the President has proposed THE DEFICIT IS BUDGET BATTLE’S RED ment spending. Voters would not permit in- and what the congressional majority HERRING creased spending if it had to be financed by seeks is pegged at some $730 billion in (By Robert Eisner) taxes rather than painless borrowing. Of course, these conservative economists entitlement savings, discretionary The agreement reached between President are right in recognizing that deficits and an Clinton and congressional Republicans to try spending levels, and tax cuts. While I essentially domestically held public debt to ‘‘balance the budget’’ by uncertain meas- fully support their determination to such as ours are not a concern. As Abraham ures in seven years is a brief armistice in a curb deficit spending, I remain skep- Lincoln said in his 1864 Annual Message to tical of the specific objective they have much larger war. The war has very little to Congress: ‘‘The great advantage of citizens set. do with budget deficits. What really concerns being creditors as well as debtors with rela- combatants on all sides—and should concern tion to the public debt, is obvious. Men can With due respect for the Democratic the American people—is the role of govern- leadership, I must express my continu- readily perceive that they cannot be much ment in our economy and in our lives. oppressed by a debt which they owe them- ing discomfort with the view that it is The ‘‘balanced budget’’ slogan is thought selves.’’ imperative that the Federal budget be to ring very well with voters, so well that One thing a balanced budget would do is balanced by a date certain. I have al- virtually all politicians find it obligatory to eliminate efforts by the government to ways believed, and continue to believe, say that they, too, are committed to it. In maintain private purchasing power. Such ef- that the Federal budget is not supposed fact, it is not clear that the ring is very loud; forts would entail cutting tax rates, or at it is quickly drowned out by the suggestions least leaving them unchanged, and raising to be in perpetual balance, but that as that achieving balance might entail cutting John Maynard Keynes wisely noted, it government benefits, or at least allowing health care and education or, generally, them to grow in the face of business should remain a flexible instrument of eliminating programs from which our citi- downturns. Insisting on a balanced budget national economic policy, registering a zenry think they benefit. Even less popular means requiring tax rates to be increased surplus in good times and engaging in is an obvious solution for deficits—raising during a recession and outlays of unemploy- stimulative spending in bad times. To taxes. Last year’s deficit, already down to ment benefits and food stamps, for example, insist on a balanced budget means re- $164 billion from the $290 billion of three to be decreased. Aside from the misery that quiring tax rates to be increased during years earlier, would have been wiped out some of these actions might entail, they completely with 12% more in federal re- a recession and outlays for such pro- would appear to most economists as exactly ceipts. The transparency of Washington’s al- the wrong thing to do. grams as help for the unemployed to be leged concern for budget balancing is re- Government should provide activities and decreased. This is not a palatable solu- vealed by the various proposals for tax cuts services that the private economy would not tion, and it is one with which most that in themselves only increase deficits. provide or would not provide adequately. economists would find fault. The current argument is not about bal- Much of social insurance is in this cat- My views, I realize, are not widely ancing the budget now or even in seven egory—retirement benefits and medical care held. Hence, I was most heartened to years. It’s about what to do to be able to for the aged, unemployment benefits for the read the words of Robert Eisner, pro- make a forecast that the budget will be ‘‘bal- jobless and ‘‘welfare’’ payments for those un- anced’’ in 2002. In January 1993, as the Bush able to work and their children. It is perhaps fessor emeritus at Northwestern Uni- administration was coming to a close, its Of- not widely acknowledged, for reasons for versity and a past president of the fice of Management and Budget forecast for electoral politics, that the privatization that American Economic Association in the that fiscal year—already three months conservatives generally favor would extend Wall Street Journal of November 28. In along—a deficit of $327 billion. That estimate to Social Security. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18287 A further role for government is to be The Senate Judiciary Committee As of the close of business Thursday, found in the funding, if not always the provi- hearing had a panel of physicians tes- December 7, the Federal debt—down to sion, of education. This would include such tify who could not agree about this the penny—stood at exactly federal programs as Head Start for pre- procedure. If doctors are uncertain, I $4,989,071,101,377.59 or $18,938.60 on a per schoolers; school lunches in primary schools; apprentice and school-to-work programs in do not believe it is a good idea for Con- capita basis for every man, woman, and high schools; and direct loans, scholarships gress to ban this procedure in all in- child. and social service programs to facilitate en- stances. Although an exception for the f rollment in colleges and other post-second- life of the mother was adopted during MESSAGES FROM THE PRESIDENT ary institutions. Government would appear this debate, the health of the mother is needed to support the basic research on not taken into account. It is my under- Messages from the President of the which progress in new technology and health standing that this procedure, in some United States were communicated to maintenance ultimately depend. And efforts circumstances, may be the least risky the Senate by Mr. Kalbaugh, one of his such as the earned-income tax credit and job secretaries. training to get more people to work and off option for a woman and may be nec- pure government handouts are also viewed essary to preserve the health and the f future fertility of the woman. by many, including President Clinton, as EXECUTIVE MESSAGES REFERRED very much in order. Also testifying before the Senate Ju- Republicans would generally reduce or diciary Committee were women who As in executive session the Presiding eliminate these programs and cut taxes, had this procedure. I admire these Officer laid before the Senate messages most heavily for those with high incomes. women for coming forth to relate their from the President of the United They claim that this would help the econ- painful and personal experiences so States submitting a withdrawal and a omy and hence ultimately make better off nomination which was referred to the the poor and less fortunate who have only that the Senate could better under- been trapped in their worsening positions by stand the impact of this legislation. Committee on the Judiciary. the government programs designed to help These women were faced with the ne- (The nominations received today are them. cessity of terminating their very much printed at the end of the Senate pro- The current Republican revolutionaries wanted pregnancies because their un- ceedings.) would reduce or eliminate government pro- born babies suffered severe abnormali- f grams that have been developing since the ties. Their physicians decided that in New Deal of the 1930s. To the new revolution- EXECUTIVE AND OTHER aries these programs injure the workings of their tragic circumstances, this proce- COMMUNICATIONS a free-market economy that has contributed dure was the safest option. so much to our well-being. But to many oth- No woman should have to face this The following communications were ers they are indispensable both to stable eco- situation. But unfortunately and trag- laid before the Senate, together with nomic growth and the social compact on ically pregnancies do not always to as accompanying papers, reports, and doc- which our economic system and our society planned. Severe fetal abnormalities or uments, which were referred as indi- depend. the threat to a woman’s life or health cated: What we’ve been witnessing in these heat- that may be exacerbated by pregnancy EC–1669. A communication from the Chief ed political battles is not just posturing or of Legislative Affairs, Department of the boys fighting in the schoolyard. There are sometimes lead to the need for women Navy, transmitting, pursuant to law, notice fateful issues involved. But it is not the defi- and their families to make difficult de- relative to renewing a lease; to the Commit- cit, stupid. cisions. These are tragic decisions tee on Armed Services. f women and their doctors should make without the interference of the Con- f PARTIAL-BIRTH ABORTION BAN gress. I sympathize greatly with the REPORTS OF COMMITTEES ACT women and families who unfortunately Mr. BYRD. Mr. President, the Senate The following reports of committees have had to face these decisions. If we were submitted: voted on November 8 to commit H.R. enact this legislation, aren’t we mak- 1833, the partial-birth abortion ban bill, ing the plight of women who may face By Mr. MURKOWSKI, from the Committee to the Senate Judiciary Committee for on Energy and Natural Resources, with an this agonizing situation in the future amendment in the nature of a substitute and a hearing and, within 19 days, to report that much more difficult by removing an amendment to the title: the bill back to the full Senate. The what may be the safest option as deter- S. 907. A bill to amend the National Forest Judiciary Committee held a hearing on mined by the woman and her doctor? Ski Area Permit Act of 1986 to clarify the this measure on November 17. H.R. 1833 In addition, the Supreme Court has authorities and duties of the Secretary of came before the Senate again yester- ruled that States can ban, restrict, or Agriculture in issuing ski area permits on day, December 7, and I voted against prohibit post-viability abortions except National Forest System lands and to with- this measure. in cases where the woman’s life or draw lands within ski area permit bound- This is an extremely difficult issue, aries from the operation of the mining and health is a jeopardy. In fact, 41 States mineral leasing laws (Rept. No. 104–183). one which I have wrestled with a great have chosen to restrict abortions after f deal. However, after carefully listening viability. I believe this issue is best to the debate and following the Judici- left to States to regulate. INTRODUCTION OF BILLS AND ary Committee hearing, I have con- Given the uncertainty in the medical JOINT RESOLUTIONS cluded that this is a matter in which community surrounding this procedure The following bills and joint resolu- Congress should not impose its judg- and the unprecedented step this bill tions were introduced, read the first ment over that of the medical commu- takes in criminalizing a medical proce- and second time by unanimous con- nity. dure, I voted against H.R. 1833. I do not sent, and referred as indicated: H.R. 1833, the Partial-Birth Abortion believe that the Federal Government By Mr. MCCAIN: Ban Act, would criminalize a medical should be usurping the powers of the procedure, the partial-birth abortion. S. 1461. A bill to amend title 49, United States in such matters. Nor do I be- States Code, relating to required employ- Physicians have expressed concern that lieve that politicians should be in- ment investigations of pilots; to the Com- the bill does not use recognized medi- volved in private decisions between pa- mittee on Commerce, Science, and Transpor- cal terms in defining partial-birth tients and their doctors regarding the tation. abortion, thus, creating uncertainty as appropriate medical treatment of seri- f to what procedures would be banned. It ous heart-rending and critical health STATEMENTS ON INTRODUCED is my understanding that the American matters. BILLS AND JOINT RESOLUTIONS College of Obstetricians and Gyne- f cologists oppose this bill. Beyond the By Mr. MCCAIN: concern about the terminology used to THE BAD DEBT BOXSCORE S. 1641. A bill to amend title 49, Unit- define the procedure, the college also Mr. HELMS. Mr. President, the sky- ed States Code, relating to required expressed concern that Congress is at- rocketing Federal debt is now slightly employment investigations of pilots; to tempting to impose its judgment over in excess of $11 billion shy of $5 tril- the Committee on Commerce, Science, that of physicians in medical matters. lion. and Transportation. S 18288 CONGRESSIONAL RECORD — SENATE December 8, 1995 THE AIR TRANSPORTATION SAFETY have access to records from previous graph (1) for records to inform the individual IMPROVEMENT ACT OF 1995 employers will be even more critical to to whom the records relate of the request ∑ Mr. MCCAIN. Mr. President, I intro- airline and passenger safety. and of the individual’s right to receive copies duce the Air Transportation Safety Im- Safety in our nation’s air transpor- of any records provided in response to the re- provement Act of 1995, which will go a quest. tation system is paramount. I believe ‘‘(6) REGULATIONS.—The Administrator along way to ensure the continued this bill will not only encourage em- may prescribe such regulations as may be safety of those who use the nation’s air ployers to make more thorough back- necessary— transportation system. Clearly, this ground checks of the pilots they hire, ‘‘(A) to protect the personal privacy of any legislation complements current more but will also enhance safety. individual whose records are requested under comprehensive efforts to improve the Mr. President, I ask unanimous con- paragraph (1) of this subsection and to pro- Federal Aviation Administration and sent that this legislation and certain tect the confidentiality of those records; ‘‘(B) to limit the further dissemination of to enhance the safety and efficiency of newspaper articles dealing with this the air traffic management system. In records received under paragraph (1) of this matter be printed in the RECORD. subsection by the person who requested specific, this bill will permit the trans- There being no objection, the mate- them; and fer of relevant employment and train- rial was ordered to be printed in the ‘‘(C) to ensure prompt compliance with any ing records to prospective employers RECORD, as follows: request under paragraph (1) of this sub- when an individual has applied for a S. 1461 section. ‘‘(g) LIMITATION ON LIABILITY; PREEMPTION position as a pilot. Be it enacted by the Senate and House of Rep- The bill necessarily focuses on en- OF STATE LAW.— resentatives of the United States of America in ‘‘(1) LIMITATION ON LIABILITY.—No action or couraging and facilitating the flow of Congress assembled, That section 44936 of title information between employers so that proceeding may be brought by or on behalf of 49, United States Code, is amended by adding an individual who has applied for a position safety is not compromised. In addition, at the end thereof the following: described in subsection (a)(1) of this section to ensure that the burden of this legis- ‘‘(f) RECORDS OF EMPLOYMENT.— against— lation does not fall on employers and ‘‘(1) IN GENERAL.—An air carrier or foreign ‘‘(A) an air carrier or foreign air carrier the legal system, when a transfer is re- air carrier receiving an application for em- with which the individual has filed such an quested and complied with, both the ployment from an individual seeking a posi- application for requesting the individual’s tion as a pilot may request and receive records under subsection (f)(1); employer who turns over the requested records described in paragraph (2) relating to records and the prospective employer ‘‘(B) a person who has complied with such that individual’s employment from any per- a request; or who receives them will be immune son who has employed that individual at any ‘‘(C) an agent or employee of a person de- from lawsuits related to the trans- time during the 5 years preceding the appli- scribed in subparagraph (A) or (B) of this ferred information. Complete immu- cation. paragraph ‘‘(2) RECORDS TO WHICH SUBSECTION AP- nity is critical—without it, the legisla- in the nature of an action for defamation, in- PLIES.—The records referred to in paragraph tive cannot achieve its objective of vasion of privacy, negligence, interference (1) are— making it a common practice of pro- with contract, or otherwise, or under any ‘‘(A) the personnel file of the individual; State or Federal law with respect to the fur- spective employers to research the ex- ‘‘(B) any records maintained under the reg- nishing or use of such records in accordance perience of pilots and to learn signifi- ulations set forth in— with subsection (f) of this section. cant information that could affect air ‘‘(i) section 121.683 of title 14, Code of Fed- ‘‘(2) PREEMPTION.—No State or political eral Regulations; carrier hiring decisions and, ulti- subdivision thereof may enact, prescribe, ‘‘(ii) paragraph (A) of section VI, appendix mately, airline safety. issue, continue in effect, or enforce any law, I, part 121 of title 14, Code of Federal Regula- After reviewing information about regulation, standard, or other provision hav- tions; certain investigations and rec- ing the force and effect of law that prohibits, ‘‘(iii) section 125.401 of title 14, Code of Fed- ommendations of the National Trans- penalizes, or imposes liability for furnishing eral Regulations; or using records in accordance with sub- portation Safety Board, I have become ‘‘(iv) section 127.301 of title 14, Code of Fed- section (f) of this section.’’. very concerned about deficiencies in eral Regulations; and the pre-employment screening of pi- ‘‘(v) section 135.63(a)(4) of title 14, Code of [FROM THE NEW YORK TIMES, NOV. 10, 1995] lots. Right now, the FAA requires air- Federal Regulations; and ‘‘(C) any other lines only to determine whether a pilot records concerning— SAFETY BOARD URGES GOVERNMENT TO MONITOR PILOTS’ JOB RECORDS applicant has a pilot license, to check ‘‘(i) the training, qualifications, pro- the applicant’s driving record for alco- ficiency, or professional competence of the (By Matthew L. Wald) individual; WASHINGTON, November 9.—The National hol or drug suspensions, and to verify ‘‘(ii) any disciplinary action taken by the that person’s employment for the five Transportation Safety Board recommended employer with respect to the individual; and today that the Government keep employ- previous years. Yet, the FAA does not ‘‘(iii) the release from employment, res- ment records on pilots to keep bad ones from require airlines to confirm flight expe- ignation, termination, or disqualification of jumping from job to job. rience or how a pilot applicant per- the individual. The recommendation came after the board formed at previous airlines. The NTSB, ‘‘(3) RIGHT TO RECEIVE NOTICE AND COPY OF blamed the crash of an American Eagle tur- however, after studying certain airline ANY RECORD FURNISHED.—An individual boprop last November on pilot error; the accidents that were determined to be whose employment records have been re- pilot had been hired a few days before he was quested under paragraph (1) of this sub- caused by pilot error, has rec- to be dismissed by his previous employer, section— but American did not know that. ommended three times since 1988 that ‘‘(A) shall receive written notice from each Currently, airlines do not share such data airlines should be required to check in- person providing a record in response to a re- out of concern that a pilot denied employ- formation about a pilot applicant’s quest under paragraph (1) of the individual’s ment because of unfavorable information prior flight experience and perform- right to receive such copies; and provided by a former employer can sue. ance with other carriers. ‘‘(B) is entitled to receive copies of any ‘‘We can’t permit liability to drive safety Compounding my concern about the records provided by the individual’s em- issues,’’ James E. Hall, chairman of the safe- insufficient sharing of pilot perform- ployer or a former employer to any air car- ty board, said in a telephone interview ance records among employers is that rier or foreign air carrier. today. ‘‘Somebody has got to take a step for- ‘‘(4) REASONABLE CHARGES FOR PROCESSING in the near future, there may be a ward to do what’s in the public interest.’’ REQUESTS AND FURNISHING COPIES.—A person But the board said privacy questions must shortage of well-qualified U.S. airline who receives a request under paragraph (1) be worked out. Moreover, the Federal Avia- pilots because the military, which in may establish a reasonable charge for the tion Administration, which the safety board the past has regularly trained the vast cost of processing the request and furnishing wants to compile the data, was reluctant to majority of airline pilots, will be train- copies of the requested records. act without Congressional authorization. ing fewer of them. This will happen at ‘‘(5) STANDARD FORMS.—The Administrator The organizations representing the com- the same time that the demand for pi- shall promulgate— muter airlines and the major carriers both lots at U.S. major and regional carriers ‘‘(A) standard forms which may be used by expressed support yesterday, although a pi- an air carrier or foreign air carrier to re- lots’ union said it objected to such a move. increases. Since many future pilots quest records under paragraph (1) of this sub- Last month the safety board concluded will not have experienced rigorous and section; and that American Eagle flight 3372, a twin-en- reliable military aviation training, the ‘‘(B) standard forms which may be used by gine turboprop on the way to Raleigh-Dur- ability of prospective employers to any employer receiving a request under para- ham International Airport from Greensboro, December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18289 N.C., crashed after the pilot, Michael P. Hil- employers. But the airline didn’t know all Q: Did the system fail in the American lis, became confused about whether the left that until after Hillis ran his plane into Eagle crash? engine had stopped and failed to focus on fly- trees at 200 mph, killing 15, including him- Broderick: The system failed because a ing the airplane. Mr. Hillis. who was killed self. plane crashed and people lost their lives. in the crash, along the co-pilot and 13 of the Another pilot-safety flaw emerged from Q: Does that mean the system doesn’t al- 18 passengers, had been on the verge of dis- the reporters’ research, as well. ways identify weak pilots? missal from Comair, a smaller carrier, when Had the FAA required more crew-coordina- Broderick: No. It points out where they’re he was hired by American. tion training, Hillis’ co-pilot, who’d never weak so we can train them in areas where American said it never asked Comair about met his captain before the flight, might have they need it. Success isn’t in getting rid of Mr. Hillis’s record because it was unlikely been able to override his errors. The NTSB people. Success is having qualified people on that the airline would divulge anything be- has warned the FAA since 1979 of the critical the flight deck. If the system is such that yond the dates of employment and the kind need for improved crew-coordination train- you fail (and) you’re out, it couldn’t work. of equipment that the pilot flew. ing. But the FAA failed to act until this Q: In the past 12 years, there have been 16 The safety board recommended that the year. fatal accidents in 15- to 19-seat planes. In airlines and the F.A.A. develop a standard- All this points to a problem larger than five of those, the FAA was cited for inad- ized report on ‘‘pilot performance in activi- pilot error. Again and again, the NTSB has equate supervision of the airline. Is that ac- ties that assess skills, abilities, knowledge, told the FAA what’s broken in aviation and ceptable? and judgment.’’ The data would be stored by how to fix it. Yet critical improvements have Pena: No. Absolutely not. We’re going to the F.A.A., and with a pilot’s permission, stalled—and not just because of incom- continue to press to improve the level of could be given to potential employers. petence or bureaucratic sluggishness. safety for smaller planes. Walter S. Coleman, president of the Re- The FAA is hamstrung by a conflicting Q: But what are you doing to hold the FAA gional Airline Association, which represents mandate. It is charged with both protecting to a higher standard? commuter carriers said in a statement that safety and promoting air travel. Pena: We have a new management team in his group ‘‘supports the intent’’ of the Safety So while it can mandate safety measures, place that is very focused on this issue. And Board’s recommendations. it must first weigh the cost-benefit wisdom I am very focused on this issue. We’ve At the Air Transport Association, which of its changes. The result: too little, too late changed our attitude. We’ve sent a strong represents the major carriers, Tim Neale, a in safety improvements. message to everybody to think of safety dif- spokesman, said, ‘‘I don’t think this is going There are recent signs of progress with new ferently than the way it was viewed in the to cause problem for the airlines.’’ FAA rules for enhanced pilot training and past, which was ‘‘accidents will happen.’’ No The Air Line Pilot’s Association said that renewed interest in background checks. But one would say that, but that was the any deficiencies in Mr. Hillis’s performance even these are half-measures, requiring only unstated assumption. Our attitude now is should have been obvious because he had some airlines to comply and making some ‘‘no more accidents.’’ Our thinking now is been with the airline for four years by the rules voluntary. And this comes as a pilot perfection. time of the crash. The union also said test shortage is approaching. Q: What have you done to make that re- results should not be shared among airlines If ever a lesson is to be learned from avia- ality? because the tests were not standardized. It tion accidents, it is that timidity has no Pena: We’ve added more inspectors. We’ve called for more training of pilots. place in safety. The NTSB knows that. It’s reached an agreement, which was a big time the FAA did as well. breakthrough, with the airlines. We can now [From USA Today, Sept. 29, 1995] Regional airlines caught in a bind. Busi- review all their flight data recorders (the ‘‘black boxes’’ on planes that record pilot PUBLIC DESERVES MORE FROM FAA ness is booming for small airlines, but their conversations). In some cases, they show WATCHDOG supply of military-trained pilots is down. And there’s little incentive for prospective mistakes made by pilots. We can take that How long does it take to learn from your pilots to spend four years and $70,000 for a information and share it with all pilots to mistakes? At the Federal Aviation Adminis- commercial pilot’s license to get a job that show (that) that was the wrong thing to do, tration, guardian of public air safety, the an- starts at $14,000 per year. Meanwhile, start- here is what should have been done. We’ve swer is a disastrously long time. also pushed for a higher level of safety on re- In a three-part series concluded Thursday, ing jobs at the major airlines pay twice that and can reach more than $100,000 after 10 gional airlines. (Next year, all regionals will USA TODAY reporters Julie Schmit and have to meet many of the same safety stand- John Ritter reveal that the system for assur- years. Military trains fewer pilots: 1992, 3,742; ards already in use at large regional and ing pilot competence is dangerously flawed. 1996, 2,678(1). major airlines.) In fact, it has contributed to 111 deaths, all Regional airline business soaring. Pas- Q: Safety investigators have cited inad- but one on small airlines, which have less-ex- sengers (in millions): 1984, 26; 1995, 60(1). equate pilot training as a factor in two fatal perienced pilots. Ranking salaries. Average second-year pay crashes since 1985. In one, the FAA had al- At the heart of the problem is the FAA. for a regional airline co-pilot compared to lowed an airline to reduce training below the The record shows the FAA was warned re- other professions: FAA’s minimum standard. Why do you set peatedly about flaws in pilot testing and hir- Secretary, $19,100. minimum standards and then allow airlines ing, that it recognized the flaws and that it Phone operator, $19,100. to go below them? was flagrantly ineffective in fixing them. Data entry, $17,750. Hinson: Any exemption we grant is only One telling example: Co-pilot, $15,600. done when it is an equivalent level of safety. On Nov. 15, 1987, 28 passengers and crew Receptionist, $15,400. In regulatory law, you write a regulation died when Continental Flight 1713 crashed on Bank teller, $14,600. that focuses on what you’re trying to accom- takeoff from Denver. National Transpor- plish but realizes there is more than one tation Safety Board investigators blamed [From USA Today, Sept. 28, 1995] path. It takes five years to build an airplane. the crash on bad flying by co-pilot Lee It takes three years to redesign an airline’s Bruecher. Unbeknown to Continental, PILOT PERFORMANCE: TOP OFFICIALS RESPOND training program. We cannot change our reg- Bruecher had been fired from one airline. Q: American Eagle Capt. Michael Hillis ulations every six months. One of the pur- He’d also flunked pilot tests and had been washed out at his first airline, Comair. Eagle poses of having exemptions is to allow air cited nine times for motor vehicle viola- hired him without knowing that. Last year, carriers to take advantage of new technology tions, a red flag for risky pilots. he crashed a plane, killing himself and 14 within the existing framework so we don’t The NTSB’s conclusion: Airlines should be others. Should airlines share records of pilot have to say to them, ‘I’m sorry, the rule required to check previous employer records training and performance? doesn’t allow this.’ of prospective pilots, including test scores, Pena: That was a very upsetting (crash). Q: The FAA is supposed to regulate and training results, performance evaluations We are working with Congress to get legisla- promote aviation. Aren’t those conflicting and disciplinary actions. tion passed to allow airlines to share (pilot responsibilities? The FAA’s response: No. Its rationale: Ben- performance) information, and we will sup- Q: Hinson: No. We are to provide a safe efits from such regulatory change would not port such legislation. aviation environment. In that context, pro- justify enforcement costs. Q: What do you say to people who are motion means we should have laws giving us Eight years and six pilot-error airline shocked that a pilot who failed at one airline authority to set standards, impose penalties crashes later, airlines still were not required could get hired at another? and provide enforcement. The most aggres- to verify applicants’ flight experience. Broderick: I am incensed, too, every time sive form of promotion is to have the con- That set the stage for crash 7, an American an accident happens. We work 24 hours a day fidence of people who use the system. Eagle accident last December in North Caro- trying to make this system a zero-accident Q: Before the FAA passes a new regulation, lina explored in detail by the USA TODAY system. I think we’ve got it to where it is it must weight the cost of it to the airlines. reporters. They found that the pilot, Michael the best in the world. It is still not good Q: Hinson: That’s true. We could provide a Hillis, was widely known for indecisiveness. enough, and every time the system fails, it is regulatory environment that was so strict Documents showed he’d failed FAA check- extremely frustrating to all of us. We want and so punitive that people would ask, ‘Why rides, and his judgment in critical situations to do whatever it takes to make sure that go into that business?’ We could say (planes) had been found unsatisfactory by previous failure never happens again. must have six engines, four pilots instead of S 18290 CONGRESSIONAL RECORD — SENATE December 8, 1995 two. We don’t do that. We have 17 cost-bene- [From USA Today, Sept. 28, 1995] Problem: Testing 10. Require airlines to fit laws that we have to answer to. The Na- PILOT ERROR: SOLUTIONS, BETTER better monitor pilots who barely pass flight tional Transportation Safety Board and the REGULATIONS, SAFER SKIES tests. Now pilots pass or fail. If they pass, other oversight groups can have opinions Problem: Pilot Supply 1. Provide public they don’t get more training. If they fail, without regard for cost. We can’t. funding for pilot training to ensure high they do. The system does not recognize that Q: One criticism is that it takes repeated quality. The Air Force spends $533,000, on av- some pilots pass with ease while others accidents before the FAA acts. What’s being erage, to train one pilot. It exposes pilots to struggle. Who must act: FAA, airlines. done? the latest aircraft and computer tech- Problem: Oversight 11. Encourage pilots to Q: Hinson: To some degree that is a fair nologies. U.S. flight schools, which rely al- report unsafe pilots by requiring airlines and criticism. It results from a propensity of our most completely on tuition, can’t afford unions to establish and monitor reporting people to be extremely cautious and it comes such training. Most student pilots train in systems. Most airlines have union commit- back to the requirement of cost-benefit anal- single-engine planes quite unlike those flown tees for this, but it’s not an FAA require- ysis. We are beginning to see a reduction in by regional and major airlines. Who must ment. Who must act: FAA, airlines. 12. Re- the processing time of regulations. One of act: Congress, FAA. 2. Provide pilot can- quire the FAA to improve the quality of its my charges is to create more sense of ur- didates with more financial assistance, in- own databases, which often are incomplete gency in that arena. cluding guaranteed student loans and schol- and inaccurate. The FAA has more than 25 arships. That would ensure that the industry databases collecting information on such [From USA Today, Sept. 28, 1995] gets the best applicants, not just those who things as failed pilot tests and pilot viola- EXPENSE SOMETIMES STOPS FAA FROM can afford the training. The cost of a com- tions. The databases are supposed to help the ORDERING SAFETY IMPROVEMENTS mercial pilot license and four-year degree is FAA target inspections at high-risk airlines, (By John Ritter and Julie Schmit) about $70,000. Most new pilots find that it but inspectors cannot rely on poor data. Who The FAA rejects dozens of changes it takes five years, or more, to get a job that must act: FAA. deems to costly or burdensome to airlines, pays more than $30,000 a year. Who must act: even if other experts think they’re impor- Congress, FAA. 3. Require airline pilots to [From USA today, Sept. 28, 1995] tant to safe airliner operation. have four-year degrees. Many major airlines HOUSE SEEKS PILOT HEARINGS: AIRLINE Sometimes the FAA repeatedly turns down used to require a four-year degree. Now, RECORD-SHARING ‘‘PART OF SAFETY EQUA- a National Transportation Safety Board rec- most list it as a preferred qualification. The TION’’ ommendation—under industry pressure, crit- military still requires it of pilot applicants. (By Julie Schmit and John Ritter) ics say—only to accept it later after more Requiring bachelor’s degrees would help en- The chairman of the House subcommittee crashes. sure that pilots have the ability to under- December’s American Eagle crash near Ra- stand today’s sophisticated planes. Who on aviation Wednesday called for hearings on leigh, N.C., is an example. Records show the must act: FAA, airlines. 4. Have examiners requiring airlines to share pilot performance pilot had been forced to resign at one airline. chosen at random. Make it impossible for pi- records. Record-sharing would prevent marginal pi- But Eagle hired him unaware of his poor lots and student pilots to choose their own lots from moving from airline to airline record. examiners for licensing and aircraft certifi- Three times since 1988, the NTSB had cation tests. The current system is open to without the new employer learning about urged tougher pilot background checks, in- abuse by examiners who give easy or short past performance. cluding verifying flight, training and dis- tests. The more tests they give, the more Rep. John Duncan, R-Tenn., responding to ciplinary records and FAA violations. But money they make. Who must act: FAA. a USA Today investigative report, said if air- the FAA says enforcing a new regulation Problem: Pilot Hiring 5. Require tougher lines won’t start sharing records voluntarily, would be too costly and leaves such checks background checks of pilot applicants. Air- ‘‘we will go for a legislative solution.’’ up to the airlines. lines are required to verify an applicant’s Sen. John McCain, R-Ariz., Senate avia- There are other examples: pilot license and work history for the pre- tion subcommittee chairman, said airlines The NTSB urged ground-proximity warn- vious five years. They also must check driv- may have to be exempted from civil privacy ing devices on planes in 1986. An FAA rule ing records for alcohol or drug convictions. suits. ‘‘Safety is paramount, and we have to requiring them took effect last year, but The FAA should require airlines to verify ap- take whatever steps are necessary.’’ loopholes will delay full compliance until plicants’ flight experience, check FAA ‘‘Lives will be saved,’’ said Jim Hall, Na- 1996. records for accidents or violations and check tional Transportation Safety Board chair- After a 1993 Express II accident near any criminal records. The National Trans- man. ‘‘The flying public has the right to Hibbing, Minn., the NTSB said the device portation Safety Board has suggested tough- know airlines are doing all they can to en- would have given pilots 33 seconds’ notice er background checks three times since sure safety.’’ they were too close to the ground—plus an 1988—each time after a fatal accident. Who Airlines are reluctant to share records be- urgent ‘‘pull up’’ warning 21 seconds before— must act: Congress, FAA. 6. Require airlines cause they say it opens them to privacy time enough to avoid the crash, which killed to share training records. These may reveal suits. 18. recurring weaknesses on such things as judg- But government reports show that since Fatal runway crashes in Los Angeles, De- ment and decision-making, which wouldn’t 1987, 111 have died in seven crashes blamed troit and Atlanta within a year led the NTSB show up in FAA records. Today, the records on pilots’ performance. in 1991 to urge the FAA to speed up install- aren’t shared because airlines fear invasion- In some cases, those pilots had poor his- ing ground radar. of-privacy lawsuits from former employees. tories at other airlines, information their The FAA moved quickly but delays per- Who must act: Congress, FAA. 7. Set mini- new employer did not have. sisted. In November, a TWA MD–80 took off mum qualifications for new airline pilots. ‘‘We welcome the interest’’ in Congress, from St. Louis while a Cessna was on its run- Currently, each airline sets its own stand- said FAA administrator David Hinson. ‘‘A pi- way. The jet sheared the top off the smaller ards, which go up and down based on the sup- lot’s record . . . is an important part of the plane, killing two pilots. The MD–80 pas- ply of applicants. When supplies are tight, safety equation.’’ sengers escaped. airlines often hire pilots who would not be The Air Line Pilots Association, the USA’s Investigators found that the FAA modi- considered when applicants are plentiful. largest pilot union, wants airlines, the Fed- fications had delayed St. Louis’ radar. The Who must act: FAA. eral Aviation Administration and unions to NTSB then asked for a schedule for remain- Problem: Training 8. Tighten monitoring develop national standards to screen appli- ing airports and held a hearing to pressure of exemptions and waivers to the FAA’s min- cants. the FAA. Even now, ‘‘We don’t expect them imum training standards. Most major air- Many of the several dozen pilots who called to have the system fully installed until lines now exceed the FAA’s minimums be- USA TODAY about this week’s three-part se- 1999,’’ says Barry Sweedler, director of the cause the airlines deem them too low. Even ries said too many marginal pilots continue NTSB’s safety recommendations office. so, the FAA allows some regional airlines to flying. In 1979 the NTSB began urging a new kind shorten training programs if it is convinced of training to make cockpit crews work to- their alternatives won’t compromise safety. [From USA Today, Sept. 27, 1995] gether better. And although the majors and Waivers are given by regional FAA inspec- THE PILOT WHO CRASHED FLIGHT 3379 some regionals now teach Crew Resource tors. There is no national database, which FIRST TIME AS A TEAM, PILOTS MADE MISTAKES Management (CRM), it’s not uniform or re- makes monitoring difficult. Who must act: quired. FAA. 9. Speed up implementation of new (By John Ritter and Julie Schmit) But most crashes involving pilot error can techniques such as the Advanced Qualifica- A stall warning horn blared again. ‘‘Lower be traced to CRM deficiencies—faulty com- tion Program. AQP requires airlines to train the nose, lower the nose, lower the nose,’’ co- munication or poor coordination between pi- pilots as crews—rather than individually— pilot Matthew Sailor told Hillis. By now, the lots. which improves crew coordination, a key fac- plane was rotating left. ‘‘It’s the wrong foot, New FAA rules this fall will require CRM tor in many accidents. AQP also identifies wrong foot, wrong engine,’’ Sailor said. Hil- industrywide for all pilots flying planes with marginal pilots sooner because pilots are lis, one of several pilots with troubling flight 10 or more seats. But it won’t be pass-fail tested more often throughout the training records, tried in the dark cockpit to control training—pilots whose CRM skills are weak process instead of just once at the end. Who the plane. He pressed the wrong rudder won’t necessarily be pulled from the cockpit. must act: FAA, airlines. pedal. The rotation worsened. Six seconds December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18291 later, the plane slammed into trees four pilots. He didn’t move up Eagle’s applicant Took care of it to a point. Unknown to miles from the runway at 200 mph. pool gradually as Sailor, hired three years Comair, in October Hillis had applied for a December 13, 1994, an American Eagle Jet- later, did. job at Nashville Eagle, a regional carrier fly- stream descends in darkness, rain and fog to- And, the preliminary crash report shows, ing under American Eagle’s logo. In an appli- ward Raleigh-Durham Airport. when Hillis failed an FAA check-ride—a key cation letter he said he wanted to return to A light blinks on, warning of possible en- benchmark—Eagle ignored its own rules and Tennessee. gine failure. let the same examiner retest him. On paper, he was a dream candidate: 2,100 Two pilots, flying together for the first In his Eagle file, Hillis had no evaluations flight hours, above the 1,500 Eagle requires. time, scramble to sort out what has gone by senior captains he flew with his first And as a working airline pilot, he had had wrong. Fifty seconds later, the twin-engine year—a tool many airlines, but not Eagle, more training than most. ‘‘We naturally as- turboprop slams into woods west of Raleigh use to identify poor performers. sume they know what they’re doing,’’ says at 200 mph. Both pilots and 13 passengers die. He kept advancing, as he had since his first American’s Baker. American Eagle officials believe the crew solo flight not long after high school in Eagle officials had no idea Hillis was on of Flight 3379 bungled a situation it was 1984—from small single-engine planes to twin thin ice at Comair. They sent Comair a ques- trained to handle. In November, the National engines, to planes that carried a few pas- tionnaire they send all previous employers. Transportation Safety Board is expected to sengers to planes that carried more. Hillis even authorized Comair in writing to report—as it does in 7 out of 10 airplane acci- But once he hit the airlines, troubles furnish information. One of the questions dents—that the pilots made mistakes. Al- cropped up. When he couldn’t cut it in his was, ‘‘To what degree was this person’s job most certainly the NTSB will urge—for the first job, as a first officer at Comair, a Cin- performance satisfactory?’’ fourth time in seven years—tougher back- cinnati-based regional airline, Comair got Comair didn’t send the form back, Eagle ground checks of the nation’s airline pilots. rid of him. That alone would have ended executives say. Rarely will an airline release What is clear from the third fatal crash in many careers, but not this one. information about a pilot. Comair says it a year involving a regional carrier—and the Hillis’ problems started in the first check- provides only dates of employment. Eagle 18th in four years—is that the flight captain, ride. has the same policy. So do many companies Michael Patrick Hillis, was a marginal pilot Hillis joined Comair as a co-pilot trainee outside the aviation industry. They won’t who had managed to slip through the airline in January 1990, after flying four years for a risk invasion of privacy and defamation suits industry’s elaborate safety net. Moreover, small Memphis freight operation. Weeks from ex-employees. the crash puts under fresh scrutiny a dec- after arriving at Comair, he had his first ‘‘Sure, we’ll ask for more,’’ says former ades-old, traditional-bound system of hiring FAA check-ride and bombed. Eagle president Bob Martens, ‘‘but we don’t and training airline pilots. In a check-ride, an examiner tests a pilot’s get it for the same reason we don’t give it The young Eagle captain had no violations skill on takeoffs, approaches and landings. out: We’re subject to lawsuits from individ- on his record. Hillis had never been in an ac- Hillis flunked three of four landings, three of uals.’’ cident. But he had failed tests and shown nine instrument procedures and one of five But privacy lawyers say there’s no liabil- poor judgment at two airlines. He had strug- takeoffs. Worse, he got what pilots liken to ity if the information is true. ‘‘It’s a phobia gled with landings easier than the one that a scarlet letter: ‘‘unsatisfactory’’ on judg- companies have,’’ says Robert Ellis Smith, a confronted him out-side Raleigh. He was not, ment. Providence, R.I., privacy lawyer. ‘‘I call it a his fellow pilots made clear, a man they ‘‘It means the examiner believes the guy conspiracy of silence.’’ wanted to fly with in an emergency. shouldn’t be flying,’’ says Robert Iverson, a But not by all. Some airlines won’t hire Shy, studious and unassuming, a quiet longtime Eastern Airlines pilot and former without information from previous employ- loner who found relationships difficult, Hil- KIWI Airlines top executive. ‘‘It is a subtle ers. They want to know: Would you hire this lis, 29, did not fit the take-charge image of way to pass that along . . . to say, ‘Hey man- person again? ‘‘If we don’t get a response to an airline pilot. An instructor who had him agement, you better wake up.’ ’’ that, we don’t hire,’’ says William Traub, in a small ground-school class weeks before Instead, Hillis got more training and United Airlines vice president. the accident couldn’t remember him. passed his retest two days later. But in his Hiring without knowing how well a pilot And throughout a five-year airline career, early flights, captains flying with him com- performed elsewhere worries safety experts. doubts had persisted about his flying abili- mented that his landings were still weak. Three times since 1988, the NTSB has urged ties. In April 1990, Comair Capt. Mitchell Serber the FAA to require airlines to do detailed ‘‘He was very indecisive and very hesi- rated Hillis in the lowest fifth of pilots on background checks before they hire and to tant,’’ says his pastor, the Rev. Robert D. flight skills, but above average on willing- provide the records of their former pilots Spradley. ‘‘Unless he changed into some- ness to learn. Serber also found him impa- when another airline requests them. The thing other than what we saw when he got in tient, a ‘‘very high-strung person . . . who FAA has said enforcing such regulations the cockpit, those emergency decisions must gets upset with his performance to the point would be too costly. have been very difficult for Mike.’’ it distracts him.’’ But since December’s crash, FAA officials William Gruber, a 20-year pilot at Embry- He had ‘‘functional knowledge of his du- are considering ways to require carriers to Riddle Aeronautical University, concludes ties’’ but not a good understanding of the share information. after reviewing Hillis’ career: ‘‘I can’t say I’d plane. After a month in the cockpit with Hil- American officials, in hindsight, acknowl- allow him to take command of an aircraft.’’ lis, Serber rated ‘‘his overall performance as Hillis survived in a system that should edge the value of sharing previous employ- weak.’’ He certainly wasn’t ready to be a have weeded him out—a system of hiring, ment records. They want the FAA or Con- captain, Serber felt. He should stay a first training and testing pilots that has no fail- gress to mandate it. ‘‘We’re already doing it officer at least a year. safe mechanism to keep track of marginal with drug and alcohol testing,’’ Baker says. On evaluation forms that asked if they performers, no way even to ensure that their ‘‘We’re required by law to pass that informa- would be comfortable flying as a passenger records follow them from one job to the next. tion on.’’ The information goes into an FAS Flight 3379 underscores the randomness of with Hillis, Serber and two other captains database, which airlines can access. air travel: Pilots fly whole careers and never checked ‘‘no.’’ But when Hillis applied, Eagle relied—as it have an engine fail. But by December, one of those captains still does today—on its own screening and It underscores the contracts: The brief ca- found him ‘‘moody and unpredictable’’ and training to spot unworthy pilots. reer of Hillis’ co-pilot, Matthew Sailor, was urged dismissal. Serber, after talks with In that process, senior captains grill appli- an exceptional and full of promise as Hillis’ Comair chief pilot Roger Scott, agreed. He cants on cockpit situations. A security agen- was bumpy and unremarkable. had never recommended firing a pilot. cy investigates gaps in work history. Driving And it underscores the irony: On the eve of Senior pilots warned about Hillis’ flight records are examined. There’s a flight test in the fatal flight, Hillis was ready to quit weaknesses. an aircraft simulator and a medical exam, American Eagle. He had even asked a friend Serber was worried, he told safety inves- which, like those at most airlines, exceeds about working at a Wal-Mart. tigators after the crash, that Hillis would FAA requirements. Most of all, Hillis’ story underscores the get tunnel vision in an emergency. His tim- Hillis went through his screening on Oct. imperfections of the airline pilot system. ing was off: ‘‘Mike was frequently behind the 24, 1990, and passed. But there should have Eagle managers say Hillis was competent airplane.’’ He often lost situational aware- been concern. He lacked two qualifications because he passed every test he had to pass. ness. He would ‘‘make large abrupt correc- Eagle prefers in its pilots: a college degree ‘‘We don’t know any way we could have tions, mostly on instrument approaches.’’ and an airline transport pilot certificate, the caught this guy,’’ says Robert Baker, vice These deficiencies would all come into play highest class of license. president of AMR, parent of American Eagle in the crash. In a Cessna simulator, Hillis flew ade- and American Airlines. But even senior pilots’ warnings weren’t quately, and evaluator Sam White saw ‘‘very But a USA Today investigation reveals a enough to get Hillis fired. He was allowed to good captain potential.’’ But White also no- less reassuring picture of Hillis’ hiring and resign, on Jan. 3, 1991, after less than a year ticed that Hillis leveled off too low after de- advancement. Eagle never learned the real at the airline. Comair won’t discuss details, scending form cruise altitude, and was slow reason he wanted to leave his first airline for but vice president K. Michael Stuart says, to correct the mistake. a lower-paying job at a second one. ‘‘Our system at a very early point deter- When asked if he had ever been fired or Hillis was brought on board quickly by mined that there was a problem and we took asked to resign from a job, Hillis could hon- Eagle, an expanding carrier eagerly hiring care of it.’’ estly answer no. It wasn’t until two months S 18292 CONGRESSIONAL RECORD — SENATE December 8, 1995 later that Comair would force him out. though Eagle’s policy is for another exam- was uncertain about his future. ‘‘I never There’s no record that Eagle asked him dur- iner to retest. Cline passed him the second wanted him to fly,’’ she says. ‘‘I wanted him ing the screening about his work there. time. to get a college degree, and in the end I Jennings Furlough, an Eagle flight stand- Assigned to Raleigh-Durham, Hillis flew think that’s what he wanted, too.’’ ards manager who interviewed Hillis, pro- uneventfully for the next two years. Eagle Spradley, his pastor, thought Hillis battled nounced him a ‘‘very good candidate.’’ On records show he passed eight checks from depression. ‘‘He lacked self-confidence and Jan. 7, 1991, four days after leaving Comair, September 1993 to July 1994. personal strength, not just in his spiritual he began first officer training in a 19-pas- Rumors spread and one pilot balked at fly- life but his social life as well. He didn’t make senger Jetstream turboprop. ing with Hillis: friends easily and while he wanted them des- Co-pilot Sailor came from a different flight If Hillis struggled during those tests, a perately, he didn’t seem to know how to background: record wouldn’t have been kept at Eagle’s manage friendships.’’ As Hillis started a new job, the co-pilot training academy. That is Eagle’s policy, ap- A job at Wal-Mart began to look appealing: who died with him in the crash, Matthew proved by the FAA, so that instructors make On Monday the 12th, Hillis studied for a Sailor, was beginning his final semester in no assumptions about how a pilot will per- final in his economics class. He and Parsons aeronautical studies at the University of form. watched the Monday Night Football game, North Dakota in Grand Forks, one of the top But while Hillis was bearing up in the but Hillis was brooding about his future. He collegiate aviation programs. Eagle training academy’s predictable envi- asked Perry how he like working at Wal- Over the next two years, Sailor, 22, would ronment, pilots he was flying with at Ra- Mart and whether it had good benefits. ‘‘He build a solid resume flying as an instructor leigh-Durham were talking about his indeci- didn’t like the idea of being unemployed,’’ pilot to gain hours. ‘‘He was very proficient, siveness and poor judgment. Perry says. one of the best we’ve had,’’ says Joe Sheble, On Nov. 18, 1994, Sandra O’Steen was sched- The two talked about the Raleigh-Durham owner of Sheble Aviation in Bullhead City, uled to be Hillis’ co-pilot from Raleigh to hub closing, and Hillis said he was thinking Ariz., where Sailor earned advanced pilot Knoxville, Tenn. She’d heard the rumors and of quitting that week. ‘‘We prayed about it, and instructor ratings and spend hundreds of told Raleigh base manager Art Saboski she prayed about what he hoped to do,’’ Persons hours teaching students how to handle en- didn’t want to fly with Hillis—the only time says. gine failure. ‘‘He was probably as com- she’d ever done that. Hillis’ scheduled co-pilot the next day, fortable flying with one engine as two,’’ Saboski confronted O’Steen: Did she want Sailor, spent that night in a hotel near the Sheble says. to be judged on rumor? She said no and airport. Based in Miami, Sailor was assigned Eagle hired Sailor in December 1993, two agreed to fly. During the flight, Hillis asked temporarily to Raleigh-Durham. He had been years after he applied. He had both the col- her about the rumors. Ignore them, O’Steen an Eagle pilot just a year, but told friends he lege degree and top pilot certificate Hillis said. wasn’t worried about being laid off. had lacked. In contrast to Hillis, two cap- Later, she e-mailed Saboski that the flight He and Hillis—who had never met—were tains rated Sailor outstanding his first year, ‘‘went by the book,’’ signing off ‘‘sorry for scheduled for a two-day trip Tuesday and one of the airline’s best first officers. the fuss.’’ She told investigators that Hillis’ Wednesday. They flew the initial 38-minute By the time Sailor was hired, Hillis had flying skills were OK, but he wasn’t decisive. leg to Greensboro on Tuesday afternoon un- been with Eagle almost three years. His first Hillis was so upset about the rumors that eventfully. year was unremarkable. A month into his he called Saboski at home on a Saturday. As they took a break before flying the sec- initial training as a first officer, he passed They met on Monday, and Hillis told his boss ond leg, back to Raleigh, Hillis told airport an FAA check-ride in a Jetstream. his reputation was being smeared. Saboski service rep Sara Brickhouse, ‘‘The company But in January 1992 he faced a crucial deci- asked Hillis twice if he thought he needed doesn’t care about me.’’ He was somber and sion. Eagle’s ‘‘up or out’’ policy meant he more training. ‘‘He pooh-poohed it,’’ Saboski unhappy, she told investigators. had to upgrade to captain when he rose high says. The meeting ended. Less than two hours later, as the Jet- enough on the pilot seniority list or leave Saboski, who was supervising nearly 300 pi- stream descended toward final approach into the company. ‘‘We do not want people to lots, was torn. ‘‘Rumors fly like crazy,’’ he Raleigh, a small amber ignition light, the make careers of being co-pilots,’’ Baker says. says. ‘‘The pilots are a fraternity. But left one, flashed on. Hillis, flying the plane, Most airlines agree. there’s always a question in my mind as to said: ‘‘Why’s that ignition light on? We just This was seven months after Command whether there’s truth in what’s being said.’’ had a flameout (engine failure)?’’ Airlines and Nashville Eagle had merged to Former Eagle president Martens agrees Sailor answered: ‘‘I’m not sure what’s form Flagship, one of the four American Saboski did not have enough information to going on with it.’’ Then Hillis declared: ‘‘We Eagle carriers. the new carrier was expand- act on. had a flameout.’’ ing rapidly. Everyone’s morale was low; layoffs were The timing was bad. The plane, carrying a It needed captains, and many first officers expected: maximum weight load and its engines on were upgrading. It’s not clear how eager Hil- Three weeks later, on Dec. 10, American idle, was quickly slowing down. It was at a lis was, but he had no choice. In 1993, the pol- Eagle announced it was pulling out of Ra- point when Hillis should have been applying icy changed, and Eagle began allowing first leigh-Durham. Low morale plunged lower. power to maintain minimum approach speed. officers to defer upgrades up to a year. Pilots were angry because they’d have to re- Hillis began captain training in a Shorts For 30 seconds, he and Sailor considered locate or be furloughed. They’d been grum- 360, a 36-seat turboprop. Almost imme- what to do as the plane stayed stable on its bling all year about their contract. They felt diately, he had problems. glide slope. They’d already lowered the land- Watching him in a simulator, instructor overworked and underpaid. Hillis shared the ing gear and set the flaps for landing. Hillis Ray Schaub rated him unsatisfactory on two anger, and the announcement, along with decided to continue the approach and asked maneuvers. One was handling an engine fail- the flap over rumors, apparently galvanized Sailor to back him up. Twice the cockpit re- ure. The other was for not executing a go- a decision to quit. He called in sick on the corder caught the sound of propellers out of around of the airport after an engine failed 10th, 11th and 12th. sync. on approach—the very situation he would ‘‘I tried to contact him. I knew something Then Hillis made a fateful decision: He confront before the crash. After 15 sessions was going on,’’ says Jody Quinn, a friend would abandon the approach, fly around the Hillis passed his captain’s check-ride and since Hillis had come to Raleigh two years airport and try another landing. It would began flying out of Raleigh-Durham. before. He was, she says, not a hard person to give them time to work the problem. Sailor Less than four months later, he was back figure out: ‘‘Just a good ol’ down-to-earth said, ‘‘All right.’’ in a Jetstream when the number of Shorts everyday person. But incredibly conscien- The plane by then had slowed dangerously. captains was reduced. Now he had to tious. On top of everything. Very together A stall warning horn blared, and Hillis called recertify in the plane he’d flown before as co- and organized.’’ for maximum power in the good engine to pilot. To Quinn and North Carolina State Univer- gain speed. But he apparently failed to make Records show once more he struggled, sity students Brent Perry and Mike Parsons, two critical adjustments. Powering up the blowing an approach and flunking an FAA who shared a house with him, Hillis was a right engine would cause the plane to rotate check-ride for the second time in his career. dedicated churchgoer, a man who liked na- left. To counter that, he should have raised He got his second unsatisfactory on judg- ture and photography. He studied a lot—es- the left wing and set full right rudder. ment. pecially airplane manuals and economics. A stall warning horn blared again. ‘‘Lower At most airlines, including Eagle, two He’d accumulated 42 hours at Memphis State the nose, lower the nose, lower the nose,’’ failed check-rides and two unsatisfactories University and was now taking courses at Sailor told Hillis, to gain speed and lift. on judgment would get a pilot kicked out. N.C. State. Three seconds later, both stall horns went But Eagle knew nothing of the record at ‘‘He’d bounced around from here to there off. Again, Sailor said, ‘‘Lower the nose.’’ By Comair. to everywhere,’’ Quinn says, ‘‘and he just now, the plane was rotating steeply left. Hillis’ FAA examiner, Kevin Cline, told in- liked North Carolina and decided to Then, ‘‘it’s the wrong foot, wrong foot, vestigators he failed about 1 in 5 pilots, but stay. . . . He wanted to finally finish some- wrong engine,’’ Sailor said. Hillis trying in only 2 percent or 3 percent got an unsatisfac- thing, finish his degree. He wanted some the dark cockpit to counter the rotation and tory in judgment. roots.’’ control the plane, had pressed the wrong rud- Hillis got 1.8 more hours of simulator Hillis’ mother, Theresa Myers of der pedal with his foot. The rotation, or yaw, training. Then Cline retested him, even Wauchula, Fla., says her son loved flying but only worsened. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18293 Six seconds later, at 6:34 p.m. ET, the about Hillis. Otherwise, he might have been half the experience of pilots hired by major plane slammed into trees four miles from the more assertive. airlines. Yet regional pilots can fly 20% more runway at 200 mph. Fifteen of the 20 on board The NTSB likely will criticize Eagle for hours than major airline pilots. died. not giving pilots enough training in cockpit Their planes are less automated, and they From wreckage, investigators determined teamwork. But questions remain: fly at lower altitudes where the weather is that at impact both engines were function- Was the crew—Hillis and Sailor—dysfunc- more severe. And because their flights are ing fully. Experts familiar with the flight tional? Did Hillis, the pilot in command with shorter, regional pilots make more daily data say Hillis misdiagnosed the ignition the questionable record, fail when it takeoffs and landings, which is when most light and overreacted—escalating a minor mattered most? accidents occur. anomaly into a catastrophe. Or were Hillis and Flight 3379’s passengers According to government reports, for the Familiar flaws had shown up again, this the victims of a system that failed? past decade the accident rate for regional time for real: suspect landing skills; the airlines has been significantly higher than tendency to make major, abrupt corrections; [From USA Today, Sept. 26, 1995] the rate for major airlines. Still, accidents poor judgment. Preoccupied by the engine MARGINAL PILOTS PUT PASSENGERS’ LIVES AT are rare. People are nearly three times more problem—the tunnel vision others had wor- RISK likely to die in a car than in a 15- to 19-seat ried about—Hillis ignored the first rule in an (By Julie Schmit and John Ritter) plane, says aviation consultant Morten emergency: keep flying the plane. Marvin Falitz, a pilot at Express II Air- Beyer. He decided unequivocally that he had a lines, failed three flight tests in six years, The Federal Aviation Administration, dead engine but then didn’t conform it by ad- hit a co-pilot and was suspended once for which regulates airlines, asserts regional air- vancing the throttle or checking the rpm sleeping in the cockpit during a flight. lines are safe—and getting safer. Says Trans- gauge. On Dec. 1, 1993, on a short trip from Min- portation Secretary Federico Pena: ‘‘If The left engine could have lost power then neapolis to Hibbing, Minn., Falitz tried a they’re not, we shut them down.’’ regained it. One thing the light is designed risky, steep approach. An analysis of official crash reports, how- to indicate is that an internal system is try- Flight 5719, a Northwest Airlines com- ever, shows that some airlines are not al- ing automatically to reignite the engine. muter, crashed short of the runway. All 18 on ways as safety conscious as they should be— But in training, according to crash inves- board died. Investigators blamed Falitz. or as they say they are. The problems occur tigation records, Eagle pilots were taught an They also blamed the airline for ignoring re- at every stage in a pilot’s career: licensing, ignition light coming on meant only one peated warnings about his performance. hiring, training and testing. thing: flameout. Other airlines have ignored warnings about LICENSING: PILOTS CAN SHOP FOR EASY Eagle instructors followed the operating bad pilots, too, and passengers have died be- EXAMINERS manual of the Jetstream’s manufacturer, cause of them. To get a license to fly passenger planes, British Aerospace. Less than a month after Since November 1987, pilots with docu- most pilots are required by the FAA to have the crash, the company issued a ‘‘Notice to mented histories of bad judgment, reckless at least 191 hours of flying time. Then they Operators’’ that clarified what it means behavior or poor performance have caused must pass FAA tests, usually given by FAA- when the light comes on. And Eagle has six other fatal crashes—all but one on small approved examiners for fees from $100 to $300. since changed its training manual. airlines. Death toll: 111, including crew- Pilots or their instructors can choose the ex- The decision not to land turned out to be members. aminers. Just as lawyers can shop for sympa- fatal. A USA Today investigation—including re- thetic judges, pilots can seek easy testers. In post-crash tests, investigators found views of the government’s own safety re- ‘‘If you’re a real hard-nosed examiner, you that sometimes, with engines at idle, the ports—has found that despite the nation’s run the risk that (they) aren’t going to call light came on when propeller speed levers elaborate air safety system, marginal pilots you,’’ says John Perdue, an aviation consult- were advanced quickly. Hillis had done that get and keep jobs. This is particularly true ant and a retired Delta pilot. five seconds before he saw the light. at commuter, or regional, airlines, which Some flight schools, concerned about One thing is clear: Most pilots, trained to often run on small budgets and hire the abuse, will let students take tests only from land planes on one engine, would have shut least-experienced pilots. examiners they endorse. ‘‘I want to know down the bad engine and landed—not tried a At regionals, hiring standards vary widely that (students) are tested by someone who’s go-around at 1,800 feet. It was the decision to and are sometimes dangerously low. Train- not giving away that ticket,’’ says Steve circle that led to the sequence of events that ing and testing procedures don’t catch all Van Kirk, 49, at Northwest Airlines pilot and caused the crash. marginal pilots. A system of independent owner of Control Aero Corp. in Frederick, Sailor must have sensed what was happen- contractors who test and license pilots is Md. ing. As an instructor in Arizona, he’d logged ripe for abuse. But not all flight schools are that strict. hundreds of hours teaching people to handle And airlines are sometimes reluctant to And the system is vulnerable to other engine failure in flight. American’s Baker is fire bad pilots. abuses, such as examiners who rush through convinced, reading the voice transcript, that These problems are about to get worse: A tests so they can do more in a day. he ‘‘had a much better sense of what was shortage of well-qualified pilots is expected In 1987, Continental Airlines hired 26-year- going on.’’ through the next 15 years because the mili- old Lee Bruecher as a co-pilot. He was flying Pilots who have read transcripts of the tary, which used to train 90% of U.S. airline a DC–9 when it crashed shortly after takeoff final seconds give this interpretation: pilots, is training fewer and keeping them in Denver. The captain, Bruecher and 26 oth- Sailor’s comments seem intended to keep longer. At the same time, demand for pilots ers were killed. Bruecher had been fired in Hillis on track. ‘‘ ’K, you got it?’’ he asks is exploding, especially at regionals—the 1985 by Able Aviation in Houston because he Hillis seconds after the light came on. fastest-growing segment of U.S. aviation. had a chronic problem of becoming dis- (Translation: Are you going to keep flying ‘‘The surplus of quality pilot applicants is oriented—a fact Continental failed to dis- the plane?) about to end,’’ says Robert Besco, pilot-per- cover. Then, ‘‘We lost an engine?’’ (You want the formance expert and retired American Air- Safety investigator cited Continental for engine-out procedure?) lines pilot. ‘‘It is a big problem. But it is a poor pre-employment screening. Continental Later, ‘‘Watta you want me to do; you tomorrow problem so the government and has since tightened its screening procedures. gonna continue’’ the approach? And Hillis airlines have their heads in the sand.’’ But Bruecher’s career might have been cut says: ‘‘OK, yeah. I’m gonna continue. Just The military has been a dependable sup- short long before he got to Continental. In back me up.’’ plier of pilots since the passenger airline in- 1983, he passed a test that allowed him to fly Fifteen seconds before impact, the plane dustry began growing after World War II. It multi-engine planes. Two months later, his slipping out of control, Sailor says, ‘‘You got trains and tests pilots rigorously to weed out examiner was fired by the FAA for giving it?’’ (You want me to take it?) poor performers. short, easy tests—including one to Bruecher. Finally, six seconds to impact, the re- As the supply of military pilots shrinks, FAA records say the examiner had been corder catches one last word, from Sailor: regional airlines will have to dip deeper into under investigation for nine months. ‘‘Here.’’ (Here, give it to me.) the pool of those trained at civilian flight Poor examiners remain a problem for the But if Sailor thought the captain was in schools. FAA. In May, it revoked or suspended the li- trouble, shouldn’t he have suggested shut- Regionals fly smaller planes between cities censes of 12 designated pilot examiners for ting down the engine? And if he did finally that major airlines don’t serve. Since 1988, giving each other phony certificates, allow- grab the plane from Hillis, why did he wait major airlines have turned over 65% of the ing them to fly numerous types of planes. until it was too late? routes less than 500 miles to commuters, The FAA canceled the certificates. It said ‘‘It’s a very difficult move,’’ Baker says, says airline analyst Sam Buttrick. none of the pilots had used them to fly pas- ‘‘But if I saw the treetops coming up, you’d New regional pilots are paid $13,000 to sengers. It appears the certificates were have to fight me for that airplane.’’ $19,000 a year, one-third of what major air- being collected almost as a game. In the culture of airline cockpits, co-pilots lines pay new pilots. But experience at that assume that seasoned captains know what level can lead to lucrative jobs at the ma- HIRING: FEWER PILOTS, LESS COCKPIT they’re doing. Sailor had been flying as a jors. EXPERIENCE first officer less than a year. On loan from Last year, new pilots hired by regionals After pilots are licensed to fly passengers, Miami, he probably hadn’t heard the rumors that fly turboprops had slightly more than most spend years instructing others or flying S 18294 CONGRESSIONAL RECORD — SENATE December 8, 1995 cargo. Their goal: build flight hours to land ing histories for more than just alcohol or proves each program. The airlines set re- jobs with airlines. Most major airlines re- drug convictions. Two speeding tickets over quirements based on FAA minimums that quire at least 2,500 flight hours; most a year can get an applicant rejected at are so low most major airlines exceed them, regionals, at least 1,500. Most pilots, when Southwest Airlines, for example. sometimes by 50%. hired, exceed the minimums. ‘‘They’re not law-abiding,’’ says Paul ‘‘They are the floor and should be viewed But when faced with a shortage of pilots, Sterbenz, Southwest’s vice president of that way,’’ says William Traub, vice presi- airlines lower their standards. flight operations. dent of flight standards for United Airlines. In 1985, 22% of new regional pilots had But an analysis of government crash re- Regionals are much less likely to exceed fewer than 2,000 hours, says FAPA, an At- ports shows that poor pre-employment the minimums. Some even fall short. Of 16 lanta-based aviation information service. In screening has contributed to passenger larger regionals surveyed at random by USA 1990, when regionals faced tight pilot sup- deaths. TODAY, seven—including four American plies, 44% of new pilots had fewer than 2,000 Consider the Jan. 19, 1988, crash of a Trans- Eagle carriers—said they were allowed to re- flight hours. Colorado plane, a now-defunct Continental duce training below FAA minimums. The Even in years when pilots are plentiful, Express carrier, near Bayfield, Colo. Both pi- airlines say they were able to prove their regionals hire less experienced pilots. lots and seven passengers died. Investigators programs were superior or sufficient, even In 1992, GP-Express hired pilot Vernon faulted the pilots. with fewer training hours. Schuety, 29, who had 850 flight hours, and The captain, Stephen Silver, 36, had used The FAA keeps track of training exemp- pilot James Meadows, 24, who had 1,100 cocaine the night before the flight. His pre- tions, which are granted by Washington after hours. That June, the two flew together for employment record included a non-fatal a formal review. But it doesn’t keep track of the first time. They crashed near Anniston, crash landing on the wrong runway, a sus- waivers, which are granted at the regional Ala., while attempting to land. Three people pended driver’s license and five moving vehi- level. The FAA doesn’t even keep a central died. cle violations in three years. record of how many waivers have been given. Investigators said the pilots lost awareness Co-pilot Ralph Harvey, 42, had been fired The FAA even grants training waivers to of the plane’s position and blamed pilot inex- from another regional airline for poor per- its own inspectors. In 1992, the Department perience, among other things. formance. his pre-employment record also of Transportation inspector general criti- The flight was Capt. Schuety’s first unsu- included two alcohol-related driving convic- cized the FAA for allowing 18% of inspectors pervised flight as an airline pilot. GP-Ex- tions and one non-driving alcohol conviction. to skip ongoing training designed to keep press, a Continental Express carrier, had At the time, the FAA did not require air- them sharp. made him a captain right away, without the lines to check for alcohol- or drug-related The FAA says safety is not compromised. usual co-pilot experience. driving convictions. Trans-Colorado execu- ‘‘The word exemption does not mean we’re GP-Express president George Poullos says tives told investigators they were unaware of giving anybody anything,’’ says FAA Admin- the pilots met all of the FAA’s requirements Harvey’s alcohol history, and Silver’s driv- istrator David Hinson. He says exemptions and that the airline only hires pilots who ing history and previous crash. allow airlines to use new techniques without meet or exceed the FAA’s minimums. In another example, Aloha IslandAir hired waiting for new FAA rules. HIRING: LITTLE BACKGROUND CHECKING IS Bruce Pollard. In 1989, Pollard crashed into a But the agency has rescinded waivers and REQUIRED mountain, killing himself and 19 others. In- exemptions after crashes. For eight years, vestigators cited Pollard’s recklessness and On April 22, 1992, Tomy International the FAA allowed Henson Airlines, now Pied- faulted the airline’s hiring procedures. Flight 22, doing business as air-taxi Scenic mont Airlines, to cut pilot flight training IslandAir didn’t check with Pollard’s pre- Air Tours, hit a mountain on the island of hours by about 40%. That was rescinded in vious employers, the accident investigation Maui, Hawaii. 1985 after 14 people died when a plane crashed The pilot, Brett Jones, 26, and eight pas- showed. near Grottoes, Va. Two previous employers said he was care- sengers died. Investigators said Jones failed Investigators blamed inadequate pilot less and one of them was about to fire him to use navigational aids to stay clear of the training, among other things. Currently, before he resigned to join IslandAir. mountain. He flew into clouds that hid it. Piedmont has no training exemptions and IslandAir learned. After the crash, it added Investigators faulted the air taxi for not exceeds the FAA’s minimum training re- tough screening procedures that weeded out checking Jones’ background properly and quirements. the pilot who later was involved in Tomy faulted the FAA for not requiring sub- The FAA’s willingness to grant waivers or International’s 1992 Maui crash. stantive background checks for all pilots. exemptions spotlights a flaw in its structure, No airline checks what could be the most Jones, investigators’ records show, had been safety experts say. The agency has two mis- important records of all: an applicant’s fired by five employers, including a major sions: to promote aviation and to regulate it. training records at previous airlines. To do airline, for poor performance. He also lied Critics say they are in conflict. so could run afoul of privacy laws, they say, When an inspector decides on a waiver that about his flight experience. and subject the airline that shared them to Tomy International didn’t uncover those might help a carrier financially, is safety suits. facts because it didn’t have a policy of veri- compromised? The FAA says no. Others won- Nonetheless, many airlines refuse to hire a fying an applicant’s background. The FAA der. pilot unless they get a good reference from a ‘‘The FAA is understaffed and politically started requiring a five-year employment previous airline-employer. Threat of lawsuit invaded,’’ says aviation consultant Michael check in 1992. Jones was hired in 1991. or not. The pre-employment check into Jones’ Boyd, president of Aviation Systems Re- But actual training records aren’t shared. aeronautical background consisted of one search Corp. ‘‘The system is corrupt.’’ Those reveal how pilots make decisions, han- phone call to a charter and cargo airline, TESTING: IN PASS/FAIL, NO ONE KNOWS WHO dle stress and work with others—insights where Jones had worked one year. That oper- BARELY PASSED that don’t show up in FAA data and insights ator said Jones departed in good standing. Few professionals undergo as much train- airlines are hesitant to share. Jones also received a recommendation ing and testing as pilots. Each year, most If training records had been shared, 15 peo- from the previous owner of Tomy Inter- captains must have at least two flight tests ple might not have died on Dec. 13, 1994, national, who had once employed him as a called ‘‘check-rides.’’ Co-pilots have one. when an American Eagle plane crashed near van driver. These flights with an examiner test a pilot’s Raleigh-Durham, N.C. A preliminary govern- Tomy International did not return re- skill on such things as takeoffs, approaches ment report points to pilot error. Capt. Mi- peated phone calls. and landings. chael Hillis, 29, was distracted by an engine The FAA requires airlines to do very little ‘‘Check-rides are a series of practiced ma- failure warning light. While figuring out when checking an applicant’s background. neuvers,’’ says Robert Iverson, former East- what to do, he and his co-pilot let the plane They must verify that the applicant has a ern Airlines pilot and former CEO of KIWI lose too much speed. It crashed four miles pilot license; check motor vehicle records for International Airlines. ‘‘Practiced enough, from the runway. alcohol or drug suspensions; and verify the even marginal pilots can pass.’’ Hillis had been forced to resign from his applicant’s employment for the previous five In addition, pilots are graded pass/fail. If first regional, Comair, because his superiors years. they fail, they are pulled from the cockpit to worried about his skills and decision-making The FAA does not require airlines to verify get more training. Within days, they are re- abilities—facts documented in training flight experience, nor to check FAA records tested. If pilots pass check-rides, as more records that Eagle never saw. for accidents, violations, warnings or fines— than 90% do, they keep flying. The American Eagle crash has the FAA re- The pass/fail system does not recognize or if an applicant has a criminal history. ˜ ‘‘They are strongly encouraged to check considering its stance, and Pena says he that some pilots pass with ease while others all those things and we make it easy for would support legislation to mandate shar- struggle. them to do that,’’ says Jeff Thal, FAA ing of information between airlines. A small percentage, 1% to 2%, barely pass, ‘‘We need to have that. I don’t want un- spokesman. flight instructors say. Others put the per- Most important, an airline is not required qualified pilots flying those planes,’’ he says. centage higher. to find out how an applicant performed at TRAINING: FAA DOESN’T KEEP TRACK OF ALL ‘‘Maybe 5% are getting by, but probably any previous airline. THE WAIVERS GIVEN shouldn’t be,’’ says Van Kirk, the Northwest Airlines do give applicants flight and oral Once hired, pilots have to go through their pilot. Even if 1% are just getting by, that tests. And most check FAA records and driv- airline’s training program. The FAA ap- would be more than 500 U.S. airline pilots. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18295 In a 1994 review of major airline accidents, Even the FAA has protected poor pilots. 334, a bill to amend title I of the Omni- the NTSB called check-rides ‘‘subjective’’ On Oct. 26, 1993, three FAA employees died in bus Crime Control and Safe Streets Act and noted differences among airlines in how a crash near Front Royal, Va. Safety offi- of 1968 to encourage States to enact a they graded pass/fail. cials blamed Capt. Donald Robbins, 55. Law Enforcement Officers’ Bill of And most airlines do not keep closer tabs That was no surprise. During his 10-year on pilots who barely pass. career, Robbins flunked three FAA tests. He Rights, to provide standards and pro- United is an exception. If pilots struggle had two drunken-driving convictions. Eight tection for the conduct of internal po- through check-rides but pass, they are re- co-pilots avoided flying with him, and sev- lice investigations, and for other pur- tested within two months instead of the eral complained to supervisors. Nothing was poses. done. In fact, in Robbins’ last evaluation, his usual six or 12 months, Traub says. S. 607 If Express II had a policy of following supervisor gave him a positive review and struggling pilots more closely, pilot Marvin complimented him on his ability to ‘‘get At the request of Mr. WARNER, the Falitz, who crashed near Hibbing, Minn., along well with his fellow workers.’’ name of the Senator from Tennessee might have been weeded out. He failed three The path pilots take to the cockpit: 1. [Mr. FRIST] was added as a cosponsor of check-rides—in 1988, 1992 and 1993. In 1987, he Enter military or civilian flight school. 2. S. 607, a bill to amend the Comprehen- failed an oral exam. Each time, Falitz was Pass test to get private license; can’t work sive Environmental Response, Com- retrained and retested the same day. Not for hire. 3. Pass test to get commercial li- pensation, and Liability Act of 1980 to surprisingly, he passed, and continued flying. cense; can work for hire. 4. Many military pi- lots get jobs at airlines after leaving mili- clarify the liability of certain recy- On two tests, he failed working with other cling transactions, and for other pur- pilots—what investigators faulted him for in tary. Flight school pilots fly cargo or work the crash. as instructors to build experience. 5. Get job poses. Since the crash, Express has intensified as co-pilot at regional airline. 6. Pass air- S. 881 line’s training program. 7. Pass test to fly pilot training. ‘‘Hibbing was an isolated inci- At the request of Mr. GRASSLEY, the certain type of plane. Testing required each dent and an unfortunate incident,’’ says Phil name of the Senator from Utah [Mr. Reed, vice president of marketing. ‘‘We run a time a pilot switches to new type of plane. 8. Spend first year on probation; get reviews; BENNETT] was added as a cosponsor of safe airline.’’ S. 881, a bill to amend the Internal After the crash, Northwest Airlines in- pass first-year test. 9. Pass test to get air sisted that all of its commuter partners, in- transport license; required to become cap- Revenue Code of 1986 to clarify provi- cluding Express, train to the highest FAA tain. 10. As captain, must pass medical and sions relating to church pension bene- standards. two flight tests every year. fit plans, to modify certain provisions Regional airlines scramble for pilots. relating to participants in such plans, FIRING: PILOTS ARE ALLOWED TO QUIT RATHER Growth in commuter or ‘‘regional’’ air trav- THAN BE FIRED el, coupled with a decrease in the number of to reduce the complexity of and to Even when an airline decides a pilot is military-trained pilots, has forced airlines to bring workable consistency to the ap- unfit to fly, the pilot isn’t always fired. hire more pilots trained in civilian flight plicable rules, to promote retirement Comair, a Delta Connection carrier, didn’t schools. savings and benefits, and for other pur- fire Michael Hillis. It let him resign. Hillis Military training fewer pilots 1992 3,742 poses. did and started at American Eagle four days 1996 2,678(1). S. 1136 later. Regional airline business soaring Pas- Many U.S. airlines will let marginal pilots sengers (in millions) 1984 26 1995 60(1). At the request of Mr. HATCH, the resign rather than fire them. The reasons: Ranking salaries Average second-year pay name of the Senator from Wisconsin Airlines fear being sued, and problem pilots for a regional airline co-pilot, compared with [Mr. KOHL] was added as a cosponsor of go away quicker if given an easy way out. the median pay for other jobs: Secretary, S. 1136, a bill to control and prevent ‘‘They’re gone with fewer repercussions,’’ $19,100; Phone operator, $19,100; Data entry commercial counterfeiting, and for says Southwest’s Sterbenz. clerk, $17,150; Co-pilot, $15,600; Receptionist, other purposes. Letting pilots resign often puts them back $15,400; and Bank teller, $14,600. S. 1228 in the cockpit—of another airline. Still, air- Comparing accident rates Accident rates lines defend the practice. ‘‘The airlines are for regional airlines that fly planes with 30 At the request of Mr. D’AMATO, the pretty diligent in looking out for those peo- or fewer seats are higher than rates for name of the Senator from Maine [Mr. ple’’ who have resigned, says Tom Bagley, regionals with bigger planes and major air- COHEN] was added as a cosponsor of S. vice president of flight operations for Scenic lines. Rates per 100,000 flights: 1228, a bill to impose sanctions on for- Airlines. 1984 1994 eign persons exporting petroleum prod- Not always. American Eagle knew Hillis ucts, natural gas, or related technology had resigned from Comair. Hillis told Eagle Small regionals ...... 82 .32 he wanted to live in a different city. But Major airlines, large regionals ...... 23 .24 to Iran. Eagle didn’t know Hillis had been forced to f For this three-day series, USA TODAY re- resign. Comair didn’t provide that informa- ADDITIONAL STATEMENTS tion, Eagle says, and the FAA doesn’t re- porters John Ritter, and Julie Schmit set quire airlines to pass on that information. out to learn how a marginal pilot slipped The reluctance to fire pilots goes beyond through the safety net of a U.S. airline and fear of lawsuits, however. It is tied to the crashed near Raleigh-Durham last Decem- THE COMMERCE, STATE, JUSTICE status and deference that pilots enjoy and to ber. They discovered more than one poor APPROPRIATIONS BILL pilot had kept flying and that, if nothing the high cost of training new pilots. ∑ Mr. ABRAHAM. Mr. President, I re- ‘‘Airlines carry weak pilots for long peri- changes, more are likely to. Ritter and Schmit analyzed accident re- luctantly voted for the conference re- ods,’’ says Diane Damos, a University of ports since 1985 and obtained FAA docu- port for the Commerce, State, Justice Southern California aviation psychologist. ments on current aviation practices through ‘‘It’s just part of the culture.’’ appropriations bill, knowing that it the Freedom of Information Act. Says aviation lawyer Arthur Wolk: ‘‘It’s will be vetoed, because it does contain Other sources included the National Trans- aviation’s good old boy network. Nobody many provisions that will do signifi- portation Safety Board, which investigates wants to trash a pilot.’’ cant good for the country and because accidents, the General Accounting Office, Co-pilot Kathleen Digan, 28, was given the the Federal Aviation Administration, airline much of the funding it provides is very benefit of the doubt and later crashed a executives, union officials, pilots and safety important to our efforts to fight vio- plane, killing herself and 11 others. Digan experts.∑ lent crime. I look forward to working was hired in 1987 by AVAir Inc., doing busi- with the managers of the bill to resolve ness as American Eagle. She was flying a f the problem areas of this bill when it plane that crashed on Feb. 19, 1988, in Ra- ADDITIONAL COSPONSORS leigh-Durham, N.C. comes up for consideration again. During a check-ride her first year, the ex- S. 309 Let me begin by outlining what is aminer said Digan needed more work on At the request of Mr. BUMPERS, the good in this bill. First, the prison liti- landings. Another called her job ‘‘unsatisfac- name of the Senator from Connecticut gation reform title of the bill makes tory’’ and recommended she be fired. A cap- [Mr. DODD] was added as a cosponsor of important and needed changes to the tain who flew with her said she S. 309, a bill to reform the concession Federal laws governing lawsuits ‘‘overcontrolled’’ the plane. policies of the National Park Service, brought against prison administrators But Digan wasn’t let go. AVAir’s director and for other purposes. of operations defended the decision to keep across the country. Right now, in many her, telling investigators: ‘‘She had invested S. 334 jurisdictions, judicial orders entered a lot in our company and our company had At the request of Mr. HELMS, his under Federal law are having an enor- invested a lot in her.’’ name was added as a cosponsor of S. mously destructive effect on public S 18296 CONGRESSIONAL RECORD — SENATE December 8, 1995 safety and the administration of pris- HATCH, the majority leader, and Sen- On the other hand, the conference re- ons. They are also raising the costs of ators HUTCHISON and KYL. They have port fails to take a strong position to- running prisons far beyond what is nec- the strong support of the National As- ward indefensible programs like the essary. And they are undermining the sociation of Attorneys General and the Economic Development Administra- legitimacy and punitive and deterrent National District Attorneys Associa- tion. Whereas the Senate had funded effect of prison sentences. tion. They will make an important this program at only $89 billion, the re- These orders are complemented by a contribution to public safety and the port before us would provide the EDA torrent of prisoner lawsuits. Although orderly running of prisons by the State with over $300 billion for next year. these suits are found nonmeritorious 95 officials charged with running them Given the EDA’s record of waste and percent of the time, they occupy an without unnecessary Federal inter- abuse, I believe this funding is exces- enormous amount of State and local ference. And they will help limit the sive and I look forward to an oppor- time and resources; time and resources waste of taxpayer money now spent de- tunity to debate the merits of the that would be better spent incarcerat- fending frivolous lawsuits and feeding EDA, and other programs like it, when ing more dangerous offenders. prisoners’ sense that as a result of my bill to terminate the Commerce De- In my own State of Michigan, the committing a crime, they have a griev- partment is debated on the Senate Federal courts are now monitoring our ance with the world, rather than the floor. In addition, this report deletes State prisons to determine: other way around. the fund to cover the costs of terminat- I thank the appropriators in both First, how warm the food is. ing the Department and transferring Houses, as well as the efforts of the Second, how bright the lights are. necessary functions to other areas of majority leader and the chairman of Third, whether there are electrical the Government. Various concerns the Judiciary Committee, for seeing to outlets in each cell. have been raised regarding the cost of it that these provisions were included Fourth, whether windows are in- terminating the Department of Com- spected and up to code. in this legislation. The second reason I support this bill merce, and this provision would have Fifth, whether prisoners’ hair is cut helped address those concerns. only by licensed barbers. is that it makes significant improve- ments in the law governing the funding I think some of the money being Sixth, whether air and water tem- spent on these unnecessary programs peratures are comfortable. of prison grants to the States. Al- though styled truth-in-sentencing in the Commerce Department would Meanwhile, in Philadelphia, Amer- have been better spent funding Federal ican citizens are put at risk every day grants, the language in present law is so full of loopholes that it does little to law enforcement at the levels the Sen- by court decrees that curb prison ate proposed in the pre-conference ver- crowding by declaring that we must advance the cause of incarcerating the most violent offenders or assuring that sion of this legislation. free dangerous criminals before they Finally, this conference report ac- have served their time, or not incarcer- they would actually serve the time they were sentenced to serve. The new cepted the House funding level for legal ating other criminals at all. As a re- services for the poor and maintains the sult, thousands of defendants who were version does a much better job of targeting this money in a manner that existing structure for the provision of out on the streets because of these de- these services, the Legal Services Cor- crees have been rearrested for new creates the proper incentives. Now let me outline the areas of this poration, albeit with provisions seek- crimes, including 79 murders, 959 rob- bill with which I have serious reserva- ing to ensure that some of the worst beries, 2,215 drug dealing charges, 701 tions. First, I believe the bill goes too misallocations of funds that the Cor- burglaries, 2,748 thefts, 90 rapes, and far in diffusing money that the version poration has permitted do not recur. 1,113 assaults in just 1 year. Obviously, of this legislation that passed the Sen- As I explained when the issue came be- these judicial decrees pose an enor- ate had dedicated to the hiring of po- fore the Senate originally in connec- mous threat to public safety. lice officers in the COPS Program. I tion with this bill, I believe the ap- Finally, in addition to massive judi- sympathize with the desire of my col- proach the Senate subcommittee took cial interventions in State prison sys- leagues in the House to give the States to this issue originally, which would tems, we also have frivolous inmate more flexibility in spending this have eliminated the Federal Corpora- litigation brought under Federal law. money, but this could mean that our tion and block-granted to the States Thirty three States have estimated goal to put more police on the street Federal funds for the provision of legal that this litigation cost them at least may not be achieved. I would much services to the poor, was far superior. $54.5 million annually. The National prefer to see a system where the States The Corporation itself provides no Association of Attorneys General have do have additional flexibility, but are legal services to the poor, but rather concluded that this means that nation- given some real incentives to spend the grants Federal money to local organi- wide the costs are at least $81.3 mil- money hiring additional law enforce- zations that give legal assistance to lion. Since, according to their informa- ment officers. the poor. This is a function the States tion, more than 95 percent of these Second, Mr. President, I believe the can perform at least as effectively as suits are dismissed without the inmate provisions related to the Commerce the Corporation has. receiving anything, the vast majority Department fall short of what we While I voted for this conference re- of this money is being entirely wasted. should be doing—namely eliminating port, I will reserve judgment on the Title VIII of this conference report the Commerce Department altogether. next Commerce, State, Justice appro- contains important measures that will I am the lead Senate sponsor of legisla- priations bill. help stop the destructive effect on pub- tion to abolish the Department of Com- lic safety, the unnecessary merce, S. 929. I think the record is f micromanagement, and the waste of re- clear—the Department of Commerce is sources that this litigation is causing. THE COMMERCE, STATE, JUSTICE the least essential of all 14 Cabinet- APPROPRIATIONS CONFERENCE It limits intervention into the affairs level agencies. Any effort to reorganize REPORT of State prisons by any court, State or and reform Government should begin Federal, undertaken under Federal law, there. ∑ Mr. BINGAMAN. Mr. President, I rise to narrowly tailored orders necessary Although this bill does not eliminate in strong opposition to the Commerce- to protect the inmates’ constitutional the umbrella organization of the Com- Justice-State appropriations con- rights. It also makes it very difficult merce Department, it does reduce and ference report. for any court to enter an order direct- eliminate some of the Department’s When this bill was adopted by the ing the release of prisoners. Finally, it more indefensible programs and agen- Senate on September 29, it maintained contains a number of very important cies. It terminates corporate welfare the Community Oriented Policing limitations on prisoner lawsuits. programs like the Advanced Tech- Services Program [COPS] by eliminat- These provisions are based on legisla- nology Program and the U.S. Travel ing the State and Local Law Enforce- tion that I have worked on assiduously and Tourism Administration, and it es- ment Assistance Block Grant Program, along with the distinguished chairman tablishes procedures by which the Ad- reinstated the Legal Services Corpora- of the Judiciary Committee, Senator ministration can act. tion, and fully funded the Violence December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18297 Against Women Act. Now this appro- In summary, our communities will marketplace, and help to generate priations bill returns to the Senate re- suffer the direct affects of these mis- high-quality, high-wage jobs that our flecting the wishes of the House at the aligned priorities. workers need. Many say that the rea- expense of the Senate. The COPS Pro- Mr. President, I would like to take a son that the Advanced Technology Pro- gram has been eliminated by the re- few additional minutes to discuss some gram is being eliminated is that the instatement of the State and Local other areas of the conference report projects did not earn any political own- Law Enforcement Assistance Block that have led me to oppose the bill. ership. This is a sad commentary on Grant Program, the Legal Services I want to preface my comments with our judgment of what is important and Corporation will receive approximately a reminder to those who are earnestly not important as we make decisions in $60 million less than the Senate had committed to the future economic our budget-cutting efforts. As Leslie agreed upon, and the Violence Against well-being of our Nation and our citi- Helm of the Los Angeles Times wrote Women Act will also receive approxi- zens. Balancing the budget is certainly on November 26, 1995: mately $40 million less than what the a goal I support; this cause does make The Advanced Technology Program . . . Senate agreed upon. sense, but that goal alone is not works because projects are proposed by in- As we all know, the COPS Program enough to secure a robust and healthy dustry and companies are required to match has proven to be successful. In one economic future for our country. How government money on their own. year, since the program’s inception, we cut, what we cut matters a great This is an example of how we should New Mexico has received over 180 offi- deal. As many of you know, I have be leveraging the taxpayer’s dollar, cers from the COPS Program. All parts watched rather incredulously as aid to getting more from government invest- of New Mexico have been awarded offi- dependent children, student loans, ments than we otherwise would cer positions. From the Aztec Police Medicare and Medicaid, the earned in- achieve. The ATP was created during Department in the north and Sunland come tax credit have been slashed and the Bush administration and had Park in the South, to Quay County in attacked in this Chamber as we pro- strong bipartisan support, support that the east and Laguna Pueblo in the ceed, without missing a beat, to pro- such a promising, successful program west, all have felt the impact of this vide nearly $800 million on 129 military should have today. program. construction projects above the Penta- I also cannot support this bill be- The COPS Program is different from gon’s request, above what the Presi- cause of the sharp reduction for the the block grant contained in the con- dent of the United States proposed was National Information Infrastructure ference report because it emphasizes necessary to maintain the national se- Grants Program. The NII Program as- the concept of community policing. It curity interests of the country. We are sists hospitals, schools, libraries, and gets officers out into the community making tough decisions that affect local governments in procuring ad- preventing crimes rather than reacting people’s lives and impact the ability of vanced communications equipment to to crimes once they have been commit- so many who are hard-working, low in- provide better health care, education, ted. come Americans to keep their families and local government services. The Mr. President, I understand that the together, keep food on the table, and conference report eliminates funding language in this appropriations bill have a chance at getting their children for the GLOBE Program, which pro- would allow a community to use the into colleges. motes knowledge of science and the en- block grant money to hire secretaries, What we cut matters, and I am op- vironment in our schools. And al- buy a radar gun or buy a floodlight for posed to the decimation of our Nation’s though it remains anemically funded, I a local jail. The law enforcement com- technology programs. Our firms are at think that the reductions in this bill munity is against this broad approach. a distinct disadvantage to firms in Ger- for the Manufacturing Extension Pro- The sentiment is best summed up by many, France, Israel, Japan, South gram are wrong-headed and continue Donald L. Cahill, the chairman of the Korea, and in nearly all industrialized the trend of undermining our Nation’s national legislative committee for the nations when it comes to making the best efforts in decades at partnering Fraternal Order of Police, who testified investments required to match what with industry to maintain our national before the Senate Judiciary Committee foreign government-industry partner- technological competitiveness both in in February on the block grant type ships provide for pre-competitive tech- the commercial and national defense proposal. He stated: nology support. We have achieved laud- sectors. We need to bias our spending toward This broader category opens the door to able and significant results from the those projects that produce real growth using these funds for numerous purposes Technology Reinvestment Program, other than hiring police officers—such as in our economy. Growth generates the Advanced Technology Program, hiring prosecutors or judges, buying equip- jobs, better incomes, and a higher and the Manufacturing Extension Pro- ment, lighting streets, or whatever. These standard of living for our citizens. are all worthwhile—but they won’t arrest a gram. While we cut programs, even For these reasons, Mr. President, I single criminal. eliminate some—the Office of Tech- must strongly oppose this bill and urge The bottom line is to place more offi- nology Assessment, for example, no the President to veto it.∑ cers on the street and the COPS pro- longer exists—the Japanese Govern- f gram has proven to be successful. That ment despite its budget and economic is why the Fraternal Order of Police, problems is going to double its re- SPEEDY SENATE RATIFICATION the National Sheriffs’ Association, and search and development expenditures OF START II IS NECESSARY the National Troopers’ Coalition sup- by the year 2000. Our technology pro- ∑ Mr. HARKIN. Mr. President, Wednes- port the COPS Program. grams are not corporate welfare; these day Senator BINGAMAN gave an impor- To quote Mr. Cahill again, ‘‘Police have been programs that have helped tant statement about the necessity to are the answer for today and preven- trigger the competitive rebound of our ratify START II quickly, and I would tion is the answer for tomorrow.’’ Nation’s firms and that have helped like to add my voice in support of his If the Senate agrees to fund the Vio- small and medium-sized firms benefit position. lence Against Women Act at the figure from national technology programs START II will cut the number of the contained in the conference report, the and projects, that would have other- world’s nuclear weapons in half, get- Senate is stating that this program is wise been the exclusive privilege of ting rid of nearly 4,000 deployed H- not as strong a priority as it was on larger firms with the contacts, re- bombs in Russia and about the same September 29. sources, and infrastructure to cooper- number here. An overwhelming number If given the resources, this act has ate with national laboratories. of our citizens favor implementing this the potential to demonstrate that the This Commerce-Justice-State appro- treaty, and a large number of elected Federal Government can make a real priations bill is a disturbing ideologi- officials on both sides of the aisle have difference when dealing with violence cal exercise that threatens the health expressed their support for it. Names against women. Through prosecution, of our future economy. The technology and statements of support by Repub- outreach, and education, the Federal programs of the Department of Com- lican leaders were read by my friend Government has assumed the respon- merce help to expand our economy, from New Mexico, and I will not take sibility of a full partner in this cause. help Americans compete in the global time to add to this list now. S 18298 CONGRESSIONAL RECORD — SENATE December 8, 1995 Apparently START II is being held destroyed. This new openness will cies Committee, and the Governor’s In- hostage in a dispute over the consolida- make START II even more verifiable terim Committee on Environmental tion of our foreign affairs agencies. I then START I. With Russian elections Education. And he served as vice chair- hope this is not the case. this month and our own presidential man of the Governor’s Michigan Land Even worse, some groups are now election season just starting, we must Inventory Committee. calling to add certain conditions for act now to keep the this olive branch He was a recipient of the American ratifying START II. These conditions from withering. Motors Conservation Award, Safari have all been discussed in bills that In conclusion, Mr. President, we need Club International’s Chairman’s have now passed the Senate, and to ratify START II quickly. It is not in Award, and the Miles D. Pirnie Award should not be attached to the ratifica- the national interest to play politics for his leadership in preserving wet- tion of a treaty. The Senate can not over the ratification of any treaty. lands and wetlands wildlife. change START II, either we ratify it or Russian President Yeltsin is ill and Part of the reason for Tom’s care for not. Attaching political conditions on needs quick American ratification of the environment no doubt stemmed a treaty is a dangerous practice and START II to help get the Russian Par- from the fact that he was a family should be avoided on procedural consid- liament to ratify it. We need the secu- man. He cared about his wife and chil- erations. rity of fewer Russian warheads now. dren and wanted to pass on to them the Mr. President, START II should be We need to stop spending so much same rights and the same opportunities ratified for many reasons. First, money making our nuclear weapons that he enjoyed. START II destroys weapons. This re- now. We can use the warheads we have A hunter concerned to protect all our duces the risk of an accidental launch. now to defend America. We need to rat- rights, he also fought for the second Second, every Russian weapon de- ify START II now.∑ amendment. stroyed is a weapon we don’t need to f Tom was elected president of NRA’s defend against. The following table board of directors in 1994 and reelected THE PASSING OF THOMAS L. shows the numbers and kinds of ICBMs in 1995. First elected to the board of di- WASHINGTON that can be eliminated under START rectors in 1985, Tom served as second II. ∑ Mr. ABRAHAM. Mr. President, it is and then first vice president prior to I ask that it be printed in the with great, personal sadness that I being elected president. RECORD. note the passing this Tuesday, Decem- Tom worked for responsible use of The table follows: ber 5 of Thomas L. Washington. Tom our rights, working with training and was a personal friend, a valued sup- INTERNATIONAL BALLISTIC MISSILES—ELIMINATED UNDER informational programs along with porter, a concerned husband and fa- START II second amendment defense. ther, and a dedicated leader in his com- He was a fine man, whom I person- Delivery system Launchers Warheads munity. ally shall miss. I extend my condo- Tom was an avid and renowned SS–18 ...... 188 1,880 lences to the Washington family.∑ SS–19 ...... 1 170 1,020 sportsman. He exemplified all that is SS–24 ...... 46 460 good about the sportsman: he was f SLBM’s ...... 2 600 hardy and self-reliant; he also was fru- RATIFY THE CHEMICAL WEAPONS Totals ...... 304 3,960 gal with and respectful of our great CONVENTION 1 Some SS–19’s may be converted to carry only a single warhead in order outdoors. Tom loved Michigan’s wet- to offset the cost of developing a new launcher. lands and forests. He spent time in ∑ Mr. HARKIN. Mr. President, the 2 Based on limit of 1,750 submarine launched ballistic missiles. The cur- rent Russian arsenal of SLBM’s is estimated at 2,350. them, enjoying them and working to Chemical Weapons Convention [CWC] Source: ‘‘Bulletin of Atomic Scientists,’’ Nuclear Notebook, September/Oc- preserve them. is a watershed agreement that will tober 1995. Because he loved the outdoors, Tom eliminate an entire class of weapons of Mr. HARKIN. Additionally, destroy- founded and led the Michigan United mass destruction. Upon ratification, ing weapons saves taxpayers’ money. Conservation Clubs. Indeed, he built the CWC calls for the complete elimi- Just look at the current Senate De- that organization into the largest sin- nation of all chemical weapons within fense authorization bill. As my friend gle State conservancy in the Nation. 10 years. from New Mexico pointed out in the re- Tom was a strong, committed advo- This landmark treaty is perhaps the port to the Defense Authorization Act, cate for preserving Michigan’s out- most comprehensive arms control the act ‘‘proposes a nuclear weapons doors, and also the great outdoors of agreement ever signed. To begin with, manufacturing complex sized to meet a America and beyond, for all to enjoy. the Chemical Weapons Convention re- need of a hedge stockpile far above the He served on the board of directors of quires all signatories to begin destruc- active START II stockpile of 3500 weap- Safari Club International and the Na- tion of their chemical weapons stock- ons.’’ The total cost of producing our tional Wildlife Federation. True sports- piles within 1 year of ratification, and nuclear weapons to date is about $4 man that he was, he was as concerned to complete this destruction within 10 trillion. Compare that with our $5 tril- to preserve the environment for future years. In addition, the CWC prohibits lion national debt. In 1995 alone, $12.4 generations as to enjoy it for himself. the production, use and distribution of billion was spent to build, operate and Thus he helped draft legislation cre- this class of weapons, and provides an maintain strategic nuclear weapons. If ating the Michigan Natural Resources intrusive international monitoring or- we ratify START II we can give tax- Trust Fund. This fund purchases prime ganization in order to prevent the de- payers the double peace dividend of recreational lands for public use with velopment of these weapons. higher security at lower cost. royalties from oil, gas, and mineral This verification allows not only for Even if START II were fully imple- production on State lands. In 1976 Tom the inspection of ‘‘declared’’ sites, but mented, we would have more than 3,000 was appointed a charter member of the also permits international inspectors deployed strategic missiles—500 war- board that administers the fund. He access to any suspected undeclared fa- heads on missiles in silos, 1,680 war- served on the board until his death, in- cilities. Signatories do not have the heads on submarine-launched missiles, cluding several terms as chairman. right of refusal to deter inspection. and 1,320 on airplanes. Furthermore, an He served on a number of Michigan Should a member nation request a additional 4,000 nuclear weapons would State committees, including the com- ‘‘challenge inspection’’ of a suspected remain in our stockpile. Surely, this mittee that wrote administrative rules chemical facility, the nation called will be more than enough atomic fire for the Michigan Farmland and Open into question must permit the inspec- power to counter any conceivable Space Preservation Act, which is tors to enter the country within 12 threat to the United States. central to the State’s land-use pro- hours. Within another 12 hours, the in- Mr. President, Russia and other gram. spectors must have been allowed entry former Soviet Republics are more open Tom also served on the Governor’s into the suspected warehouse. It is than ever before. We have all seen the Interim Committee on Environmental very unlikely that every trace of the unprecedented pictures on television of Education, the Michigan Department banned chemicals could be eliminated Russian missiles and airplanes being of Natural Resources Endangered Spe- within 24 hours. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18299 In addition to providing broader pow- tion involving three administrations. The secure with the treaty than without it, and ers to an international inspection re- CWC has both kinds of teeth that the NPT promising the more ambivalent ones God- gime, the CWC includes strong punish- lacks: A tough inspection regime and real knows-what in exchange for their support. ment to those nations who choose to punishment for violation. The treaty now seems assured of extension before the New York conference adjourns. violate this agreement. The violating I ask that the text of the article be Extension is certainly better than non-ex- printed in the RECORD. nation, as well as nonmember nations, tension. Still, since its inception back in the could no longer purchase an entire There being no objection, the article 1960s, the treaty’s structural weakness has group of chemicals from member na- was ordered to be printed in the gotten sufficiently glaring that one wishes tions. The chemicals which would be RECORD, as follows: those weren’t the only two options. banned are necessary for factories to [From the New Republic, May 1, 1995] The idea behind the treaty was that the produce products such as pesticides, NUKES, NERVE GAS AND ANTHRAX SPORES—BE nuclear haves—Britain, China, France, Rus- plastics, and pharmaceuticals. So this VERY AFRAID sia, the United States—would buy off the have-nots. The have-nots would pledge not to measure is not only a ‘‘carrot’’ to in- (By Robert Wright) duce nations to join, but a ‘‘stick’’ to acquire nuclear weapons, and the haves Once you’ve assimilated the idea that an would help them get and maintain nuclear ensure their compliance. apocalyptic new-age cult with offices on energy for peaceful use. That was the carrot. Obviously, Mr. President, no treaty three continents had stockpiled tons of Once the have-nots had signed on, they is 100 percent watertight, but the nerve-gas ingredients and was trying to cul- would be subjected (along with the rest of us) strength of the international monitor- tivate the bacterial toxin that causes botu- to the stick: international inspection of nu- ing regime, the Organization for the lism, the rest of the story is pretty good clear reactors, with the understanding that Prohibition of Chemical Weapons, news. The cult, Aum Supreme Truth, em- misuse of the technology would lead to its ployed its nerve gas on only one of the con- cutoff. Administering both carrot and stick makes the manufacture of chemical tinents, rather than aim for synchronized weapons difficult to conceal, and the is the International Atomic Energy Agency, gassings of the Tokyo, New York and Mos- or IAEA. punishment provides a strong deterrent cow subways. Only a small fraction of its One oddity of this arrangement is that the to developing this class of weapons. chemical stock was used, and that was pre- IAEA’s job is to relentlessly complicate its Among all weapons of mass destruc- pared shoddily; the gas seems to have been a own life. As it helps spread ‘‘peaceful’’ nu- tion—biological, chemical, and nu- degraded version of sarin, and the ‘‘delivery clear materials around the globe, opportuni- clear—chemical weapons are the most systems’’ the emitted it were barely worthy ties for illicit use multiply, and so does the plausible and potent threat available of that name. Rather than thousands dead on need for stringent policing. Thus, the world to terrorists. These chemical weapons three continents we got eleven dead on one. must get better and better at two things: de- A happy ending. are relatively easy to make, and a dos- tecting cheaters, and punishing them with On the other hand, a worldwide display of sufficient force to deter others. Recent age that can kill thousands is very well-run chemical and biological terrorism easy to conceal. Recent events in events show the world to have failed in both would have had its virtues. From mid-April regards. Tokyo and Oklahoma City have pro- through mid-May, on the eve of the Nuclear At the outset of the Persian Gulf war, Iraq vided the wake-up call to the inter- Non-proliferation Treaty’s expiration at age was an NPT member in technically good national community, showing that the 25, representatives of more than 170 nations standing. After the war, the world discovered world can no longer slumber in a blan- are meeting in New York to vote on renew- what a meaningless fact that can be. Indeed, ket of false security. ing the treaty. Conceivably, this gala event as if to drive home the IAEA’s impotence, a From a historical perspective, agree- could inspire a broader and much-needed dia- separate agency, under United Nations aus- logue on the state of the world’s efforts to ments to curtail chemical weapons use pices, went into Iraq, documented the nu- control weapons of mass destruction, includ- clear weapons program and dismantled it. have been largely successful. The best ing chemical and biological arms. Then example is the 1925 Geneva Protocol. It’s true that the existence of this program again, conceivably it couldn’t. So far at- didn’t come as a bolt from the blue. There Even during World War II, the vast ma- tempts to take a truly fresh look at this had long been grave suspicions, but Presi- jority of nations observed the Geneva issue have tended to encounter a certain dull dent Bush’s aversion to regional Iranian he- Protocol, which banned the first-use of inertia within policy-making circles. This is gemony had given him a certain tolerance chemical weapons in war. However, the the sort of condition for which 10,000 globally for Iraqi excesses. Still, few suspected the use of chemical weapons by Saddam televised deaths on three continents might scope of Saddam Hussein’s nuclear program, have been just the cure. Hussein against Iran and the Iraqi or the subtlety of its concealment. Hussein One salient feature of the world’s approach proved that the IAEA’s inspection regime— Kurdish population forced the world to weapons of mass destruction is perverse- community to realize the danger of confined to declared nuclear sites—is inad- ness. The Nuclear Non-proliferation Treaty— equate. the NPT—is a much weaker document than these weapons. The production of The first application of this lesson was in the recently negotiated Chemical Weapons chemical weapons by nations facili- North Korea. After inspection of a declared convention, which now awaits American tates the proliferation of these weap- site revealed nuclear materials to be miss- ratification; yet nuclear weapons are much ons to state sponsored terrorist groups. ing, the IAEA, for the first time ever, asked more devastating than chemical ones. Mean- The United States must place a high to look at an undeclared site. The North Ko- while, biological weapons are essentially de- rean refusal confirmed everyone’s worst sus- priority on the elimination of this void of international control, yet they’re the picions, and thus revealed a second NPT defi- deadly class of weapons. If the United scariest of the three. They may not be the ciency: once the world knows something States wishes to retain its position as most potent—not for now, at least—but they fishy is going on, there are no provisions for a world leader, the Senate must pro- have the greatest combination of potency assured and effective punishment. In theory and plausibility. If someone asks you to vide its advice and consent to the rati- the IAEA could appeal to the U.N. Security guess which technology will be the first to fication of the Chemical Weapons Con- Council for economic sanctions—or, indeed, kill 100,000 Americans in a terrorist incident, vention with urgency, and persuade for the authorization of air strikes against you shouldn’t hesitate; bet on biotechnology. other nations to follow our lead. the suspect facility. But often this channel And not futuristic, genetically engineered, Mr. President, to call attention to will be blocked by a Big Five veto—possibly genocidal viruses, though these may be along China’s in the case of North Korea, perhaps the proliferation of weapons of mass eventually. Plain old first-generation bio- Russia’s in some future case involving Iran. destruction, I would recommend a logical weapons—the same vintage as the Of course, the IAEA can stop all further highly informative article by Robert ones Aum Supreme Truth was trying to shipment of nuclear materials to outlaw na- Wright entitled ‘‘Be Very Afraid’’, make—are the great unheralded threat to tions. But it may be too late for that tack to national security in the late 1990s. which appeared in the May 1, 1995 edi- keep the bomb out of their hands, and any All told, the planet’s current policy on tion of The New Republic. To Quote adverse effect on their energy supply weapons of mass destruction can be summa- Mr. Wright: wouldn’t be felt for a while. rized as follows: the more terrible and All told, the world’s current policy on Notwithstanding these flaws, the NPT has threatening the weapon, the less we do about weapons of mass destruction can be summa- been pretty effective. Nobody called John it. There has never been a more opportune rized as follows: The more terrible and Kennedy an hysteric when in 1963 he pre- time to rethink these priorities. threatening the weapon, the less we do about dicted that within a dozen years fifteen to it. There has never been a more opportune I twenty nations would have the bomb. Yet time to rethink these priorities. * * * A good To its credit, the Clinton administration now, thirty-two years later, the best guess is model for reform exists in the Chemical has lately worked doggedly on behalf of NPT that eight nations have a functioning Weapons Convention, which now awaits rati- renewal. Officials have traveled the globe, bomb—the Big Five within the NPT and, fication after more than a decade of negotia- reminding world leaders that they’re more outside of it, Israel, Pakistan and India. (In S 18300 CONGRESSIONAL RECORD — SENATE December 8, 1995 addition, Ukraine, Belarus and Kazakhstan search warrant at the national level is re- into 500,000 deaths isn’t even remotely pos- were born with the bomb, and say they’ll quired. Indeed, it might even be telling the sible. A thousand deaths is more like it. give it up.) A primary reason for this glacial truth (though for chemical factories, already Racking up large numbers means mounting a pace is that the NPT eased fears, in large subject to government regulation, this ex- well-orchestrated campaign. chunks of the world, about the imminent cuse wouldn’t wash). And, what’s more, such This doesn’t mean chemical weapons don’t nuclearization of neighbors. a warrant might wind up being truly warrant the tight treatment they get in the Still, the Middle East and south Asia have unobtainable—if, for example, the requested CWC. For one thing, some of them, such as gotten arms-race fever since 1963, and North search were of your indoor tennis court and skin-melting and often nonlethal mustard Korea may yet start a race in the Pacific. So the OPCW could provide no evidence of ille- gas, have uniquely horrifying effects. Sec- it would be nice to make the NPT more se- gal activity there. Still, if such appeals to ond, although a single chemical weapons pos- ductive and effective: to raise both the bene- national sovereignty had an overpoweringly sesses a tiny fraction of a nuclear bomb’s fits of signing and the costs of reneging. And, phone air, the country could be deemed in lethality, chemical weapons are much easier though no one is talking about using the noncompliance with the treaty by a vote of to get. The recipe for making them is public, present conference to amend the NPT (this OPCW member-states. a first-rate chemistry major can follow it (if would supposedly open up various cans of Nations so deemed would truly be put in at some health risk), and the ingredients worms) there is talk of reaching that goal in the dog-house. There is a whole slew of sub- grow more widely available each decade. other ways. For example, the IAEA can in- stances relevant to chemical warfare that Besides, chemical weapons, though the terpret its sometimes-ambiguous mandate treaty violators could no longer buy from least massively destructive weapon of mass broadly—as it did in claiming the right to in- OPCW members, a group that would include destruction, are much more potent than con- spect undeclared sites in North Korea—and roughly the whole industrialized world. And ventional explosives. A conventional war- hope everyone goes along, thus setting a the cutoff of these substances could harm head might kill ten people in a suburban precedent. Or the agency can approach mem- factories that make things ranging from pes- neighborhood where a chemical warhead ber nations collectively about a generic re- ticides to plastics to ceramics to pharma- could kill 100. The Iraqi chemical arsenal write of their individual ‘‘safeguard agree- ceuticals. discovered after the Persian Gulf war— ments,’’ the documents, technically separate Here the CWC breaks momentously new 100,000 artillery shells, warheads and from the NPT, which grant the IAEA’s power ground, though less by design than by tech- bombs—was theoretically enough to wipe out to inspect. In any event, if NPT extension nological happenstance. Because of the flexi- the entire Israeli population many, many happens early enough in New York, there bility of chemical technology, the treaty’s times over. It is with good reason that chem- will be time for the conference at least to punishment by denial of ‘‘military’’ chemi- ical weapons are put in a special class of open a dialogue about the grave flaws of the cals amounts to broad and immediately pain- global abhorrence and regulation, along with current regime. ful sanctions against the civilian economy. nuclear and biological weapons. And these sanctions are a good reason not II Still, chemical weapons aren’t nearly as just to stay in compliance, but to sign the pernicious as nuclear weapons. And what A good rough model for reform exists in treaty in the first place. If you don’t join the most people still don’t understand is that in the Chemical Weapons Convention, which OPCW, its members—just about everybody— important respects nuclear weapons aren’t now awaits Senate ratification after more won’t sell you these chemicals in the first as pernicious as biological weapons. than a decade of negotiation involving three place. That’s a carrot; and that’s a stick. administrations. The CWC has both kinds of Obviously, no weapons control regime can III teeth that the NPT lacks: a tough inspection be foolproof. (That’s why, notwithstanding In one sense, biological weapons are com- regime and real punishment for violation. In the NPT’s high-minded call for the eventual monly overestimated. People tend to assume the arms-control field, says Berry Kellman, a elimination of all the Earth’s nuclear weap- they work by starting epidemics, when in law professor at DePaul University, it is a ons, this won’t happen anytime soon. A few fact most biological weapons kill by direct ‘‘wholly unprecedented document of inter- powerful but reasonably responsible nations exposure, just like chemical weapons. To be national law.’’ Were it already in effect, Aum must preserve a nuclear arsenal, lest the sure, contagious weapons exist. American Supreme Truth’s attempt to make chemical next, slightly wilier version of Saddam Hus- settlers purposefully gave Native Americans weapons would have been a lot harder. sein be empowered to hold the world hostage blankets infested with smallpox; more re- Under the chemical convention, the Orga- with half a dozen warheads, or other weapons cently, both American and Soviet military nization for the Prohibition of Chemical of mass destruction.) Still, the CWC, given researchers have experimented with some Weapons (or OPCW, the CWC’s version of the the complexity it confronts, would have a readily transmittable viruses. Still, in gen- IAEA), would be routinely informed about good chance of success. It would make the eral, contagious weapons have a way of com- the commercial transfer of substances used manufacture of chemical weapons an endeav- ing back to haunt the aggressor. So biologi- to make chemical weapons—and substances or with a significant risk of unmasking, and cal weaponry this century has involved used to make substances that are in turn unmasking would bring painful penalties— mainly things like anthrax spores, which used to make chemical weapons. That covers penalties that no Security Council member enter your lungs and hatch bacteria that dozens and dozens of substances. It also cov- would have the chance to veto. If the NPT multiply within your body and finally kill ers a lot of sellers and buyers, because those had the CWC’s built-in vigilance, Hussein you, but don’t infest anyone else in the substances tend to have legitimate uses as would have found it much harder to reach meanwhile. well. Thiodiglycol is used to make both mus- the point he reached and still retain NPT Genetic engineering may eventually make tard gas and ballpointpen ink. Dimethyl- membership. And if the NPT had the CWC’s contagious weapons more likely. In prin- amine makes for good nerve gas and deter- membership benefits, it would be much hard- ciple, for example, one could design a virus gent. In an impressive balancing act, CWC er for any nation—Iraq, Israel, India, Paki- that would disproportionately afflict mem- negotiators managed to craft a system that stan—to bear the prospect of bers of a particular ethnic group, thus giving (a) monitors the sale and transport of these nonmembership. some measure of safety to attackers of other chemicals and entails periodic inspections; The irony in this disparity between the ethnic persuasions. And—more realistically and (b) has the unambiguous support of the NPT and the CWC is that nuclear weapons in the near term—genetic engineering makes Chemical Manufacturers Association. are much more devastating than chemical it easier to match a killer virus with an ef- Unlike the NPT, the CWC goes well beyond weapons. Japanese newspapers estimated fective vaccine, so that the aggressor could this inspection of ‘‘declared’’ sites—factories that Aum Supreme Truth’s many tons of be immunized. Still, the main effect of mod- that avowedly employ the suspect chemi- chemicals could theoretically cause 4 million ern biotechnology to date—and it has been cals—and provides explicitly for the inspec- deaths, but the key word here is ‘‘theoreti- dramatic—is to make traditional weapons, tion of undeclared sites. And here things can cally.’’ This calculation assumes that the such as anthrax, much cheaper and easier to happen pretty fast. If the United States re- poison gas is spread with perfect efficiency, produce. A basement-sized facility, filled quest a ‘‘challenge inspection’’ of, say, a sus- so that every bit gets breathed by someone with the sort of equipment found at garden- picious-looking warehouse in Iran (a signa- and no one breathes more than his or her variety medical labs and biotechnology com- tory), Iran must let inspectors into its coun- share (a lot to ask of a dying subway rider). panies, will do the job; the recipes are avail- try within twelve hours of being notified. More reasonable figures would be in the hun- able at college libraries; and the ingredi- After another twelve hours, it must have es- dreds of thousands. ents—small cultures of pathogens that can corted the inspectors to the perimeter of the And even those numbers are inflated. If be rapidly multiplied in fermenting tanks— warehouse. (eliminating every trace of chem- you discovered a cache of 800,000 bullets, you are routinely bought from commercial ven- ical weapons manufacture within twenty- might say this was enough to kill 500,000 peo- dors or passed from professor to graduate four hours is considered quite unlikely.) At ple, even allowing for inefficient application. students. this point there can be up to ninety-six hours But inefficiency is only half the problem; The weapons that can result are phenome- of negotiations about which parts of the fairly early in the application process you’d nally destructive. An (excellent) Office of warehouse are subject to inspection. But any attract official resistance. So, too, with Technology Assessment (OTA) report on vehicles leaving the area in the meanwhile chemical weapons. Whereas converting a sin- weapons of mass destruction estimates that can be searched. gle nuclear bomb into 500,000 deaths is a sim- a single warhead of anthrax spores landing in A country could conceivably keep this ple matter of parking a van and setting a Washington, D.C., on a day of moderate wind standoff going longer by arguing that a timer, converting a single chemical weapon could kill 30,000 to 100,000 people—a bit more December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18301 damage than a Hiroshima-sized atomic bomb mits the United States, Russia and other sig- trast, has yet to amend the official U.S. ver- would do, though nothing like the devasta- natories to forgo any biological weapons pro- dict to the contrary, which it inherited from tion from a modern nuclear warhead. (And a gram, is so toothless as to make the NPT the Reagan-Bush era of cold-war-think, with day of fever, coughing, vomiting and internal seem like a steel trap. (When in 1979 the So- its inordinate fear of intrusive inspections bleeding is an appreciably less desirable way viet Union suffered a mysterious outbreak of by communist masterminds. (The Reagan ad- to die than incineration.) In addition, an- anthrax in the vicinity of a military re- ministration more or less stumbled into a thrax spores buried in the soil, beyond the search facility, Pentagon officials weren’t highly intrusive CWC; Assistant Secretary of reach of sunlight, live on. Gruinard Island, stunned; but the United States was powerless Defense Richard Perle raised the issue of where Britain detonated an experimental an- to pursue its suspicions.) And no remedial ‘‘challenge inspections,’’ confident that the thrax bomb during World War II, is still un- proposal from the Clinton administration is Soviets would say no, as a means of embar- inhabitable. imminent. Meanwhile, the most visible re- rassment. Then Mikhail Gorbachev assumed But a warhead is not the most likely form sult of a series of meetings among BWC sig- power and called his bluff. The rest is his- in which biological weapons will first reach natories about revising the BWC is a series tory.) an American city. A ballistic missile, after of agreements to keep meeting. There is very One idea that has surfaced at the BWC’s all, has a return address: so long as the Unit- little talk anywhere about giving the Bio- periodic meetings on self-improvement is to ed States has a nuclear deterrent, Americans logical Weapons Convention a rigor reminis- piggyback a new, tougher BWC onto the can feel pretty secure against missile at- cent of the chemical convention. CWC. The CWC’s governing body at the tacks in general. And there’s another prob- When you ask people to explain this anom- Hague could expand to encompass both lem with missile-delivered biological weap- aly, they cite the practical problems that chemical and biological weapons, metamor- ons. The technological challenge of making make detecting biological weapons harder phosing from OPCW to OPCBW. Assuming an explosive device yield a widespread mist than detecting chemical weapons. There are that a new biological convention emulated is considerable. Iraq, we’ve learned since the so many small, theoretically suspect rooms, the chemical convention in providing pen- war, has done research on anthrax and at so many medical and biotech facilities. alties for noncompliance, the two sets of botulin weapons, but not with evident suc- And upon inspection it’s so hard to say for penalties could be fused. If a country not cess. Still, if you’re not attacking from a dis- sure whether anything illicit is going on. complying with either treaty were cut off tance and can deliver the spores in person, The perfectly legitimate endeavor of making from some trade in both chemicals and bio- the obstacles to biological attack diminish. anthrax vaccine, for example, is an excuse technology equipment, noncompliance would ‘‘Figuring out how to do it in a terrorist for having anthrax around—one of several be extremely unattractive. kind of way is trivial,’’ says one analyst in potential ‘‘masks’’ for weapons production. For that matter, in theory—and in the the defense establishment. Thus the fact What’s more, a small, inconspicuous supply long run—the NPT could be thrown in with that no nation has used biological weapons to pathogens can, via fermentation, be this mix, so that the illegal development of since World War II is no reflection of the turned into a weapon-scale supply a mere any weapon of mass destruction complicated likelihood of their future use. Only recently two weeks after a satisfied international in- one’s access to state-of-the-art chemical, bi- has the technology become so widely avail- spector cheerfully waves goodbye. ological and nuclear technology. This would able that a well-organized terrorist group It’s true that these things dramatically give the NPT much of the force it now lacks, can harness it. complicate enforcement of the treaty. It’s and would create a world in which the re- Of all the things that might attract terror- also true that they dramatically underscore sponsible use of technology is a prerequisite ists to biological warfare—the relative the need for enforcement. Knowing that in for untrammeled access to it. Needles to say, cheapness, the inconspicuous production— thousands and thousands of buildings on this anyone who suggested such a thing in Wash- perhaps the most important is the anonym- planet some graduate student or midlevel ington policy-making circles would be ex- ity. A small, private airplane with 220 manager could be breeding enough anthrax pelled on grounds of hopeless romanticism. pounds of anthrax spores could fly over spores to decimate the city where I live— Washington on a north-south route, engage well, somehow I don’t find that conducive to IV in no notably odd behavior and—by OTA a laissez-faire attitude. Using the plausibil- There are political reasons why biological reckoning—trail an invisible mist that would ity of biological warfare as reason not to re- weapons have been given little of the atten- kill a million people on a day with moderate duce that plausibility is a bit too rich in tion they deserve. For one thing, ratification wind. A plane spewing ten times that much irony. of the Chemical Weapons Convention is seen sarin would kill only around 600 people—or, A few wild-eyed radicals have gone so far as a prerequisite for a new biological weap- on a windier day, 6,000. More to the point: as to suggest new approaches to the problem. ons initiative. The CWC took more than a the sarin attack, with its immediate effects, One idea is to ‘‘internationalize’’ the produc- decade of arduous negotiating. If it flops, no would have authorities hunting for a culprit tion of vaccines; or, at least, to compress one is going to volunteer to lead the world before the plane landed. Anthrax, in con- each country’s vaccine production into fewer on another visionary arms-control campaign. trast, takes days to kick in; the pilot could facilities, for easier (and assiduous) inter- Unfortunately, the CWC has been languish- be vacationing in the Caribbean before any- national monitoring. That would strip all ing in the Senate for nine months. It has the one noticed that something was amiss. other facilities of one of the masks for weap- nominal support of some important people, Or consider this charming scenario, cour- ons production—so that, say, anthrax spores such as President Clinton and Senator Rich- tesy of Kyle Olson of the Chemical and Bio- found during a challenge inspection would be ard Lugar of the Foreign Relations Commit- logical Arms Control Institute. Get a New hard to explain away. tee. (Fortunately, Committee Chairman York taxicab, put a tank of anthrax in the This reform, of course, assumes that there Jesse Helms—who at last check was getting trunk and, by slightly adapting commer- is such a thing as a challenge inspection for India mixed up with Pakistan—is said to cially available equipment, arrange for it to biological weapons, which there isn’t. Adding have ceded control of the CWC issue to release an imperceptible stream of aerosol. such inspections to the BWC is about the Lugar.) But neither Clinton, Lugar nor any- (You would be wise to build a special filter most ambitious idea now floating around in one else of stature has chosen to adopt the for the air entering the cab, though getting the Clinton administration (and it’s not CWC as his mission in life. Eleven deaths on an anthrax vaccination might be enough pro- floating at the highest levels). The idea hear a Japanese subway didn’t push the issue tection.) Then drive around Manhattan for a wouldn’t be to make the BWC as comprehen- across the cause-du-jour threshold. day or two. You’ll kill tens of thousands, sive as the CWC. The degree of routinized in- Just as progress on chemical arms would maybe hundreds of thousands, of people. spections envisioned in the CWC is probably pave the way for progress on biological arms, And, again, nobody will know. With nerve impractical for biological weapons, given the extension of the NPT by an overwhelming gas, in contrast, the long line of gagging, sheer number of places that would be can- majority is considered a prerequisite for dis- writhing people leading to your taxicab didates for inspection. Rather, a revised BWC cussing major reforms in the NPT verifica- would arouse the suspicion of local authori- might simply have signatories provide data tion regime. Indeed, NPT extension would ties—even if your gas mask had somehow es- about all such sites and be subjected to an provide a quite bright spotlight in which caped their attention. occasional challenge inspection—at these President Clinton could inaugurate this very Note that these scenarios make biological sites, or at undeclared sites. This would discussion—or for the matter a broader dis- weapons potentially genocidal even in an make the production of biological weapons cussion on weapons of mass destruction. This ethnically heterogeneous city. A taxi-cab an endeavor of at least incrementally in- spotlight would also provide a domestic po- can be driven all over Harlem, block by creased risk. And with weapons of mass de- litical opportunity for a president often dis- block—or, instead, through Chinatown or struction, every increment counts. missed as insufficiently presidential. through the Upper East Side. Terrorists, who To that end, various other measures—for Of course, this is boilerplate thinkpiece- have been known to harbor ethnic prejudice, ‘‘transparency,’’ international intelligence ending advice for presidents: give a speech; needn’t wait for an ethnically biased de- pooling and so on—are also bandied about. have a vision. It’s easy to say if you don’t signer virus. The collective result of such measures is have to spell out your fuzzy idealism in de- Though biological weapons are the most called a ‘‘web of deterrence’’ by Graham tail, much less reconcile it with gritty re- horrifying terrorist tool today, they are also Pearson of Britain’s Ministry of Defense. ality. But Brad Roberts of the Center for the furthest from being on the radar screen Pearson reflects the view of the British gov- Strategic and International Studies—not ex- of any politician who matters. The Biologi- ernment that the BWC is in principle ‘‘verifi- actly a hotbed of woolly-minded one- cal Weapons Convention of 1975, which com- able.’’ The Clinton administration, in con- worldism—laid out a pretty concrete version S 18302 CONGRESSIONAL RECORD — SENATE December 8, 1995 of a lofty Clintonesque vision in a recent flag desecration. However, no votes mately resulted in the decision by the issue of The Washington Quarterly. Roberts will occur and all votes ordered with IRA to announce a unilateral cease-fire extensively invoked internationalist acro- respect to amendments and the final in the fall of 1994. nyms—not just CWC, BWC and NPT, but vote will occur at 2:17 p.m. on Tuesday, GATT and NAFTA. Making some nonobvious For more than 15 months, the peoples connections between trade regimes and non- December 12, 1995. of Northern Ireland and Ireland, as well Also, Senators should be aware that proliferation regimes, he argued that both as people in Great Britain, have en- it will be the majority leader’s inten- must be carefully crafted to attract and en- joyed the first period of unprecedented mesh a ‘‘new tier’’ of states recently en- tion, following the flag amendment dowed by technological evolution with the vote, to begin the debate on Bosnia, peace in more than a generation. capacity to manufacture potent weapons. hopefully, under a time agreement. Still, the issues which are at the root With all these acronyms now in a critical f cause of that violence remain to be ad- phase in one sense or another, 1995 could ORDER FOR ADJOURNMENT dressed and resolved, Mr. President. ‘‘prove a genuine turning point’’; ‘‘basic Our former colleague, Senator George international institutions will end the year Mr. HATCH. Mr. President, if there is Mitchell of Maine, has been asked by either much strengthened or much weak- no further business to come before the the Governments of Great Britain and ened’’—and if the latter, the prospects for a Senate, I now ask unanimous consent stable post-cold-war world will sharply di- Ireland and the political parties in minish. that the Senate stand in adjournment under the previous order, following the Northern Ireland to chair a commis- If President Clinton ever did decide to sion, an international commission, to exert leadership on the issue of weapons of remarks of Senators DORGAN and DODD. mass destruction, there is little chance that The PRESIDING OFFICER. Without try and see if the issue of decommis- posterity would deem him alarmist. Not only objection, it is so ordered. sioning of arms and related matters are the threats he’d be addressing growing; Mr. HATCH. I yield the floor. can be resolved as we proceed on a twin their growth has deep and enduring roots: in- Mr. DODD. I suggest the absence of a track, of commencing all-party talks creasing ingenuity in the manufacture of de- quorum. by the end of February. It is through structive force; increasing access, via infor- The PRESIDING OFFICER. The these twin tracks that the people of mation technology, to the data required for clerk will call the roll. this manufacture; wider availability, in an Northern Ireland can live in permanent ever-more industrialized world, of the req- The legislative clerk proceeded to peace, free from violence and discrimi- uisite materials; and the increasing ease of call the roll. nation. Mr. DODD. Mr. President, I ask unan- their shipment. The underlying force is truly The remarkable change in the North inexorable; the accumulation of scientific imous consent that the order for the knowledge and its application, via tech- quorum call be rescinded. is very apparent to all who go there. nology, to human affairs. The PRESIDING OFFICER. Without President Clinton’s efforts have made Every once in a while the inevitable re- objection, it is so ordered. that possible. I would say to my col- sults of these trends become apparent—in f leagues that there is a deep apprecia- the discovery that Iraq had an extensive nu- TRIP TO IRELAND tion on the island of Ireland for that ef- clear bomb project and enough chemical fort. There was a risk involved in it. As weapons to murder a small nation; in the Mr. DODD. Mr. President, a week or fact that the World Trade Center bombers my colleague, the Presiding Officer, so ago, I had the distinct pleasure of will recall or remember, that the Presi- succeeded in a mission that, given slightly traveling with our colleague from the more deft personnel and better financing, dent received a lot of advice and coun- could well have involved biological weapons State of Florida, CONNIE MACK, along sel about the wisdom of extending that with a bipartisan delegation of 16 Mem- rather than explosives; in the news that a first visa to Mr. Adams, given the his- bers of the House of Representatives, nutty Japanese cult with an international tory of Sinn Fein and the IRA. Some presence was busily amassing a chemical and to Northern Ireland and the Republic biological arsenal. So far none of these ob- of Ireland on the occasion of President questioned whether or not there was a ject lessons has been driven home at the cost Clinton’s visit there. It was a historic sincere commitment to seek a peaceful of tens of thousands, or hundreds of thou- visit, the first time that a sitting resolution of this conflict. Even after sands, of lives. But as time goes by, the cost American President visited Northern the IRA announced its cease-fire last of lessons will assuredly rise.∑ year some continued to question f Ireland. Allow me to say, first of all, that re- whether it would hold. I know the ORDERS FOR MONDAY, DECEMBER gardless of one’s party, ideology or po- President heard a lot of advice, the 11, 1995 litical persuasion, I think every Amer- bulk of it, in fact, recommended Mr. HATCH. Mr. President, I ask ican, those who were there, those who against extending that visa. unanimous consent that when the Sen- witnessed on CNN the President’s his- Our colleagues, Senator MOYNIHAN of ate completes its business today, it toric visit to Ireland, were moved by New York, Senator KENNEDY, and oth- stand in adjournment until the hour of the reception that our President re- ers, urged the President to take the 12 noon on Monday, December 11; that ceived. chance, to extend that visa and to test following the prayer, the Journal of On three different occasions, at whether there was a true commitment proceedings be deemed approved to speeches in Derry, in Belfast, and in to adopting the political track to re- date, no resolutions come over under Dublin, the estimates of the crowds solve differences and whether a cease- greeting the President were approxi- the rule, the call of the calendar be dis- fire might work. As a result of that, we mately 250,000 people. That does not in- pensed with, the morning hour be have seen, as I described briefly, the deemed to have expired, the time for clude the thousands of people who lined the various roadways to welcome the events that unfolded over the past year the two leaders be reserved for their or so. use later in the day and there then be President to the North of Ireland and a period for the transaction of morning to the Republic. Again, Mr. President, Ambassador business until 1 p.m., with Senators His reception was directly related to Jean Kennedy Smith and her staff, the permitted to speak for up to 10 minutes his efforts over the past 23 months to Government of Prime Minister Bruton, each, and that at 1 p.m., the Senate re- try and bring an end to the Deputy Prime Minister Dick Spring, sume consideration of Senate Joint generational conflict in Northern Ire- and other Irish officials, did a remark- Resolution 31. land. The last 15 of those months have able job, along with Sir Patrick The PRESIDING OFFICER (Mr. been the first time in more than 25 Mayhew and the people of Northern COATS). Without objection, it is so or- years that there has been the absence Ireland. of violence and the threat of violence dered. I mentioned earlier Gerry Adams. that has stemmed from what the peo- f This is a man who has played a very ple in Ireland refer to as the Troubles. PROGRAM The President deserves enormous courageous part in the quest for peace Mr. HATCH. Mr. President, for the credit for setting the stage for that for his country men and women. information of all Senators, by a pre- cessation of hostilities. His decision to There was a tremendous effort over vious consent agreement, at 1 p.m., extend a visa to Gerry Adams, the many months that went into making amendments will be in order to the president of the Sinn Fein Party, early this trip the tremendous success that constitutional amendment regarding in 1994 was the bold move that ulti- it turned out to be. December 8, 1995 CONGRESSIONAL RECORD — SENATE S 18303 John Hume, of Derry, whom all of us a visit by someone whose family, on good part of his education here, I know have met at one time or another in the both sides, has come from Ireland, firsthand that he has a deep apprecia- past 20 years, is the individual who going back well into the early part of tion for our Nation, a great love for really initiated the peace effort in the last century. I was deeply proud America and for Americans. Northern Ireland and in Derry. What a that an American President had taken The breadth of Mr. Solana’s govern- remarkable job he and others have the actions he has over the last couple ment experience is also broad and var- done in Derry to bring the two tradi- of years and that this has made a dif- ied. He has served in one capacity or tions together, the nationalist and ference in people’s lives. another in every Spanish Government unionist traditions, to try and achieve We have seen this administration since 1982, in addition to maintaining a economic opportunity for people. John take steps in Haiti, now in Bosnia, strong involvement in his chosen pro- Hume and others have worked tire- there in Ireland, and in other places— fession of physics. We are talking lessly to attract business and promote steps that are certainly full of risks, about someone of deep, long experi- job growth in that community. It was but nonetheless I think risks worth ence. He first served as the Culture truly a heartwarming sight to see the taking, in the sense that we have been Minister and simultaneously held the American President received by John able to make a difference in people’s portfolio of Government spokesman in Hume in the square of Derry, while lives. the early 1980s. In 1988, he became the more than 50,000 people looked on. So it was a deeply moving time for Government’s Minister of Education Some of these people had lined the those of us who were part of this trip to and served in that capacity until he street since 9 a.m. in the morning, and have been present at a historic visit by was named Foreign Minister in 1992. the President arrived late in the after- an American President to a foreign Mr. President, I am deeply disturbed noon. land. For all who witnessed the recep- that some of Mr. Solana’s critics go In the Guild Hall the President got a tion he received, I think it makes ev- back 15 or more years to talk about the tremendous reception; when the eryone—regardless of party, ideology, Mr. Solana’s initial opposition to song ‘‘The Town I Love So Well’’ was or political persuasion—very proud to NATO, without bothering to discuss sung, the audience was literally moved be an American. the historical context of Spain’s par- to tears. That song describes the trou- f ticipation in NATO. bles in Derry over the past two and one JAVIER SOLANA—THE NEXT At that time, Spain was emerging half decades. SECRETARY GENERAL OF NATO from a military dictatorship that they In Belfast, at the Christmas tree had been under for many years. Mr. Mr. DODD. Mr. President, I had the lighting ceremony, 100,000 people gath- Solana felt participation in NATO at privilege several days ago of meeting ered in the great square in Belfast— that particular moment was probably with the Foreign Minister of Spain, Protestants and Catholics alike—wel- not the wisest course to follow. What is Javier Solana, who has recently been coming our President to their city. important is what happens after that. appointed the new Secretary General of This is the same city, where a few The critics fail to disclose—as appro- NATO. months ago, you would not have I happen to believe, Mr. President, priate as it is to point out Mr. Solana’s thought of sending an American Presi- that this is a very fine choice, a superb initial opposition—that it was also dent because of the violence there, and choice, one that I think should through his efforts several years there- where people were fearful of that when strengthen NATO and the political after, that a convincing case was pre- they walked into a department store or leadership of NATO in the months to sented to the Spanish people, on the pub that place would be the subject of come, particularly at a critical time wisdom of Spain’s participating in attack and violence. when the issue of Bosnia and NATO’s NATO. What was particularly historic was role there is going to be so very, very If Mr. Solana is going to be criticized to see this crowd—again, presenting important. for his opposition to Spain joining the great traditions of Northern Ire- I know that most Americans are NATO in the first instance, I think it is land—come together to express their probably not familiar with Mr. Solana also appropriate that his involvement appreciation to an American President, as a foreign minister of Spain. There in convincing the Spanish people about the American people, and to the United has been some criticism raised about the wisdom of NATO membership be States Congress; it certainly was one of this choice over Mr. Solana’s opposi- mentioned as well. Certainly, he played the great sights I have witnessed in my tion some 15 years ago to Spain’s par- a pivotal role in that. tenure here in the United States Sen- ticipation in NATO. As a result of his He has been described by his col- ate. statements then, there have been those leagues in the foreign affairs field as an And then, Mr. President, the Presi- who have criticized his choice to head ‘‘expert’’ and a ‘‘pragmatic nego- dent was warmly received by the Par- that organization. tiator,’’ who has always adopted a very liament in the Republic of Ireland. The I thought it might be worthwhile to commonsense approach to diplomacy. people of Dublin also came out en share something of Mr. Solana’s back- Dr. Solana has remained untouched by masse to express their appreciation. ground and involvement when Spain recent allegations that have been With over 100,000 people there as wit- was making the decision about NATO lodged against certain Government of- nesses, President Clinton was awarded membership. I also think it would be ficials, both with respect to corruption the ‘‘Freedom of the City’’ credentials informative for people to know about and to the so-called dirty war, alleged that have only been awarded to a hand- the critical role he has played in the to have been conducted against the ful of people in Dublin. This was truly Spanish Government over many years. Basque rebels. a high honor to receive. The President Finally, I believe my colleagues will I believe, Mr. President, we should be made very compelling remarks during be surprised to know of the deep sense extending our appreciation for Dr. his stay in Dublin. of affection that Mr. Solana holds for Solana’s willingness to accept the chal- Certainly, the sight of those children our country, knowing it as well as he lenge of assuming the position of the that the President constantly referred does. I say that because Mr. Solana is Secretary General of NATO at this to when he talked about the opportuni- a physicist, by academic training. He, very critical juncture in that organiza- ties and the hopes for peace in North- of course, received his undergraduate tion’s history. I, for one, think he is ern Ireland—particularly the two chil- degree from the University of Madrid, the right man for the job. I applaud dren at the Mackie Metal Plant in Bel- and his Ph.D. from the University of NATO members for the decision to ap- fast—who joined hands, one Catholic, Virginia, while a Fulbright scholar. He point him. one Protestant—representing by the taught physics at the University of Mr. President, at this point, I ask clasping of hands their hopes for com- Chicago in this country before begin- unanimous consent that a statement ing together and resolving differences ning any kind of a political career. He given by Secretary of State Warren so people can live in peace on the is- has published more than 30 books on Christopher in support of Dr. Solana’s land of Ireland. the subject of physics. appointment and a brief biography be As a person of Irish descent, for me it Having spent such a great deal of printed in the RECORD at the conclu- was more than just a foreign visit, but time in our country and receiving a sion of my remarks. S 18304 CONGRESSIONAL RECORD — SENATE December 8, 1995 The PRESIDING OFFICER. Without Prime Minister Gonzalez have made the Mr. DODD. Mr. President, I suggest objection, it is so ordered. (See exhibit strengthening of our transatlantic relation- the absence of a quorum. 1.) ship a priority of Spain’s EU Presidency. The PRESIDING OFFICER. The Mr. DODD. Mr. President, I am con- Their efforts were instrumental in laying the foundation for greater cooperation between clerk will call the roll. fident that Dr. Solana is going to make the United States and the European Union The legislative clerk proceeded to a very fine Secretary General of NATO, that we hope to build upon at the upcoming call the roll. at a time when we ought to be reaching U.S.-EU Summit in Madrid. Mr. DODD. Mr. President, I ask unan- out to new members, as Spain has been Minister Solana has also worked to bring imous consent that the order for the a relatively new member of NATO. Spain into the community of European na- quorum call be rescinded. I think this is a wise move, particu- tions. It is fitting that he will complete his The PRESIDING OFFICER. Without term as Spanish Foreign Minister as Presi- larly with someone who has enjoyed dent of both the European Union and the objection, it is so ordered. broad-based support, and is a great Western European Union—two institutions f friend of the United States, a person which continue a process of European inte- who knows our country very well. gration dating to the Marshall Plan. ORDER FOR RECORD TO REMAIN I had the privilege of being with him Minister Solana has strong ties to the OPEN UNTIL 3:15 in Spain a week ago, and I had a United States. He was a Fulbright scholar chance to speak with him at some from 1966 to 1968 at the University of Vir- Mr. DODD. Mr. President, I ask unan- ginia, where he earned his Ph.D. in physics. imous consent that the CONGRESSIONAL length. This is an individual, I think, He returned to this country later as an in- RECORD remain open until 3:15 p.m. most of our colleagues when they have structor in physics at the University of Chi- an opportunity to meet him, will be cago. He has kept up close ties to this coun- today. deeply impressed and pleased with this try, personal and official, through the inter- The PRESIDING OFFICER. Without choice. vening years. objection, it is so ordered. I have known Minister Solana personally So, Mr. President, I commend the f NATO members for choosing him at for many years and have worked closely with him on a broad range of issues. I have great this critical hour, and I commend Sec- confidence in his leadership and his vision, ADJOURNMENT UNTIL MONDAY, retary Christopher for his statement, which will serve the Alliance well in coming DECEMBER 11, 1995 along with President Clinton’s state- years. I congratulate Minister Solana on his ment in support of his nomination. appointment, and I look forward to working Mr. DODD. Mr. President, I ask unan- imous consent that the Senate stand in EXHIBIT 1 with him as we fulfill NATO’s task of guard- ing peace and stability throughout Europe. adjournment under the previous order. STATEMENT BY SECRETARY OF STATE WARREN There being no objection, the Senate, CHRISTOPHER ON THE SELECTION OF JAVIER JAVIER SOLANA MADARIAGA at 2:40 p.m., adjourned until Monday, SOLANA AS NATO SECRETARY GENERAL Minister of Education and Science (since December 11, 1995, at 12 noon. I am very pleased that the North Atlantic July 1988). Council has unanimously selected Javier A US-trained physicist, Javier Solana has f Solana of Spain as the next Secretary Gen- been a member of the executive committee eral of NATO. of the Spanish Socialist Workers Party NOMINATIONS Minister Solana has demonstrated time (PSOE) since 1976 and a Madrid deputy in the and again his commitment to strengthening Cortes (parliament) since 1977. Before assum- Executive nominations received by NATO as the core institution of our trans- ing his current post, he served concurrently the Senate December 8, 1995: atlantic alliance. Spain’s membership in as Minister of Culture and as Government THE JUDICIARY NATO is due in no small part to his efforts— Spokesman. C. LYNWOOD SMITH, OF ALABAMA, TO BE UNITED efforts that were not at all popular at the Solana was born on 14 July 1943. He joined STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT time. I feel confident that he has the the youth organization of the PSOE in the OF ALABAMA, VICE E.B. HALTOM, JR., RETIRED. strength vision and leadership to guide mid-1960s. During his student years he was f NATO during this crucial period as we seek detained several times by the police and to bring peace to Bosnia and to pursue a fined for unauthorized political activity. WITHDRAWAL measured path on NATO enlargement. After receiving a degree in physics from the Under Minister Solana’s leadership, Spain University of Madrid, Solana attended the Executive message transmitted by has played a key role in securing the peace University of Virginia studied and taught in the President to the Senate on Decem- in Bosnia. Through the darkest days of that Chicago, Illinois, and in La Jolla, California. ber 8, 1995, withdrawing from further tragedy, Spanish soldiers served in the UN In the early 1970s he became a professor at Senate consideration the following force with distinction. Spanish airmen flew the University of Madrid. nomination: with our pilots. Now Minister Solana will Solana speaks excellent English. His wife, CORPORATION FOR NATIONAL AND COMMUNITY lead the effort to help bring peace to that the former Concha Gime´nez Diaz-Oyuelos, SERVICE troubled region. directs public relations for a state-owned de- More broadly, Minister Solana has been a partment store. The couple has two children. C. RICHARD ALLEN, OF MARYLAND, TO BE A MANAGING DIRECTOR OF THE CORPORATION FOR NATIONAL AND leader in promoting deeper ties between Eu- Solana’s brother, Luis heads the Spanish na- COMMUNITY SERVICE (NEW POSITION), WHICH WAS SENT rope and the United States. Indeed, he and tional television network. TO THE SENATE ON JUNE 6, 1995.