First Amendment hypocrites
Only nine senators out of 100 stood up as consistent opponents of cutting back the First Amendment

By Michael Barone

Every so often pollsters have some fun by reading the text of some part of the Bill of Rights and then reporting that most respondents said they would vote against it. The implication is that the vulgar masses, unlike sophisticated insiders, have no understanding or appreciation of our fundamental freedoms. But are sophisticated insiders any better? In recent years, a large majority of the members of the United States Senate have voted to limit one of the most important parts of the Bill of Rights–the First Amendment.

The votes have come on two amendments that would limit the First Amendment's protection of free speech. In December 1995, the Senate voted 63 to 36 to amend the First Amendment to allow Congress to prohibit flag burning, which the Supreme Court had ruled was free expression. Those 63 votes were four votes short of the two thirds required to amend the Constitution. Even so, a solid majority of senators were willing to limit the First Amendment.

Then, in March 1997, the Senate voted to amend the First Amendment to allow Congress and the states to set "reasonable limits" on campaign spending, something the Supreme Court had said the First Amendment prohibited. Only 38 senators voted for this amendment, 61 against it. But the vote was even more alarming. Flag burning, after all, is not very common behavior, and if it is political speech, prohibiting it still leaves almost every form of political speech unrestricted. In contrast, the 1997 amendment threatened the heart of political speech, for in a country of 286 million people it is impossible to get your voice heard without spending money, and limits on campaign spending mean limits on political speech just when voters most need information.

Many opponents of the flag-burning amendment justified their stand by saying that although they hated flag burning, they hated limits on the First Amendment more. They had a good point. Yet a majority of the senators who voted against limiting the First Amendment on flag burning then turned around and voted for limiting the First Amendment on political speech generally.

Most of those who would nibble at the First Amendment to allow flag burning prosecutions were Republicans: Forty-nine Republicans and 14 Democrats so voted. Most of those who would take a big chomp out of the First Amendment to allow limitations on campaign spending were Democrats: 34 Democrats and four Republicans.

Who are these senators who would amend the First Amendment? Let's name names, at least of those who are still in the Senate.

Voting to amend the First Amendment on flag burning but not to amend it for political spending were 25 current senators, all Republicans:

• Richard Shelby (Ala.)
• Ted Stevens (Alaska)
• Frank Murkowski (Alaska)
• John McCain (Ariz.)
• Jon Kyl (Ariz.)
• Ben Nighthorse Campbell (Colo.)
• Richard Lugar (Ind.)
• Charles Grassley (Iowa)
• Trent Lott (Miss.)
• Christopher Bond (Mo.)
• Conrad Burns (Mont.) (he did not vote on the political-spending amendment)
• Bob Smith (N.H.)
• Pete Domenici (N.M.)
• Jesse Helms (N.C.)
• Mike DeWine (Ohio)
• Don Nickles (Okla.)
• James Inhofe (Okla.)
• Rick Santorum (Pa.)
• Fred Thompson (Tenn.)
• Bill Frist (Tenn.)
• Phil Gramm (Texas)
• Kay Bailey Hutchison (Texas)
• Orrin Hatch (Utah)
• John Warner (Va.)
• Craig Thomas (Wyo.).

Voting to amend the First Amendment on political spending but not to amend it for flag burning were 24 current senators, 23 of them Democrats and one, James Jeffords, a Republican at the time of the votes, but now an independent:

• Barbara Boxer (Calif.)
• Christopher Dodd (Conn.)
• Joseph Lieberman (Conn.)
• Joseph Biden (Del.)
• Max Cleland (Ga.) (he did not serve in the Senate in 1995)
• Daniel Inouye (Hawaii)
• Daniel Akaka (Hawaii)
• Richard Durbin (Ill.) (he cast his vote against the flag-burning amendment in the House)
• Tom Harkin (Iowa)
• Mary Landrieu (La.) (she did not serve in the Senate in 1995)
• Paul Sarbanes (Md.)
• Barbara Mikulski (Md.)
• John Kerry (Mass.)
• Carl Levin (Mich.)
• Paul Wellstone (Minn.)
• Jeff Bingaman (N.M.)
• Kent Conrad (N.D.)
• Byron Dorgan (N.D.)
• Ron Wyden (Ore.) (he cast his vote against the flag-burning amendment in the House)
• Jack Reed (R.I.) (he cast his vote against the flag-burning amendment in the House)
• Tom Daschle (S.D.)
• James Jeffords (Vt.)
• Patty Murray (Wash.)
• Jay Rockefeller (W.Va.).

You might want to call all these 52 senators First Amendment hypocrites, or at least partisans. They voted to protect the integrity of the First Amendment when it was in line with their party's philosophy and voted to violate the integrity of the First Amendment when it was in line with their party's philosophy. In my view, a vote for the flag-burning amendment was much less obnoxious than a vote for the political-spending amendment, since the latter touches on the core of First Amendment protections–of political speech generally–and the former touches only a very limited number of cases. Some readers will feel the balance goes the other way. But either way, it's chilling to realize that just about half the current senators–and a solid majority of the senators serving at the time–were willing to cut back First Amendment protections for essentially partisan reasons.

In contrast, 14 senators took consistent positions on amending the First Amendment. This group included 10 current senators: 7 Democrats and 3 Republicans (below the Democrats are on the left).

Dianne Feinstein (Calif.)	Olympia Snowe (Maine)
Bob Graham (Fla.)	Thad Cochran (Miss.)
John Breaux (La.)	Arlen Specter (Pa.)
Max Baucus (Mont.)
Harry Reid (Nev.)
Tim Johnson (S.D.) (who cast his vote for the flag-burning amendment in the House)
Robert Byrd (W.Va.)

And how many senators voted against cutting back the First Amendment on both of these roll calls? Exactly 9. Of these, 7 were Democrats and 2 Republicans; only 6 are current members.

Edward Kennedy (Mass.)	Mitch McConnell (Ky.)
Patrick Leahy (Vt.)	Robert Bennett (Utah)
Herb Kohl (Wis.)
Russ Feingold (Wis.)

For those who are unalloyed fans of the First Amendment, let's add the names of the three former senators–all Democrats–who consistently voted against cutting back the First Amendment.

• Dale Bumpers (Ark.)
• Bob Kerrey (Neb.)
• Daniel Patrick Moynihan (N.Y.)

So only nine senators out of 100 stood up as consistent opponents of cutting back the First Amendment. It's a dismayingly low number. And it's something to remember the next time you hear someone in the political elite decrying the ignorant public's lack of appreciation for the Bill of Rights.