Unfortunately, Hillary's position was much more subtle than I or Hillary's critics knew, and I unknowingly fell into trap in which I misrepresented Hillary's position to Hillary's detriment, in a way that increased opposition to her at DailyKos.  According to Vote-Smart.Org, Hillary did not support the Amendment to ban flag burning, but on two occasions I erroneously said in DK diaries that she did. http://www.dailykos.com/story/2006/4/24/ 91131/7415  http://votesmart.org/voting_category.php ?can_id=WNY99268

For that I apologize to Hillary Clinton and to anyone who may have been misled.  Later, I learned the truth.  The Flag Burning Amendment failed in the US Senate by one vote: Hillary's vote. -http://www.nydailynews.com/news/wn_repor t/story/426380p-359710c.html

Clinton nixes flag amendment

BY MICHAEL McAULIFF
DAILY NEWS WASHINGTON BUREAU

WASHINGTON - Today may be Flag Day, but don't count on Sen. Hillary Clinton backing a constitutional amendment to ban burning Old Glory.

Clinton (D-N.Y.) has co-sponsored a bill (not an amendment)to ban flag-burning. But she said yesterday she opposes enshrining that in the Constitution - although her vote could turn the tide for a proposed amendment coming up in the Senate later this month.

"I'm voting against the amendment," she said. "I've always been against the amendment."

The flag fight is one of the three items Senate Majority Leader Bill Frist (R-Tenn.) put on the agenda this month that plays well with Republican voters.

Efforts to repeal estate taxes and ban gay marriage failed, but he has a chance with the flag amendment, which has 66 supporters - just one shy of the 67 needed to advance it.

That could shine the light on Clinton, who is in the difficult position of favoring a law but opposing a constitutional change.

"She can explain it legalistically, but that's not going to work, not for a presidential candidate," said University of Virginia political scientist Larry Sabato. "This will just give additional fodder to her critics, on the left and right."

Originally published on June 14, 2006
http://www.nydailynews.com/news/wn_repor t/story/426380p-359710c.html

Here's what I think happened in the US Congress:  The Republicans were looking for a wedge issue to use against Democrats in the 2006 Congressional elections and they settled on the issue of Flag burning as one of those wedge issues.  They believed that if they could get Democratic representatives on record "supporting" flag burning, then they could win seats.  They wanted to paint Democrats with an "anti-American", "unpatriotic"  narrative  that could be used in many ways simultaneously, for example, to blunt Democratic efforts to end the war in Iraq.  So, the Republicans were "on a mission" to highlight their opposition to flag burning while forcing the Democrats to appear to support it.

This is what the Republicans alwaysdo, and all too often they are successful.

Having no issues of substance to run on this fall, with a cupboard bereft of success here at home or overseas, House and Senate GOP leaders are left to scheduling votes that they hope will damage Democrats on guns, gays, abortion, and the flag. According to tomorrow's Post, the GOP leadership plans to schedule votes on values issues in the coming weeks to cause problems for both Kerry and Edwards on things such as ending the assault weapons ban, a constitutional amendment to ban gay marriage, abortion, consider new tax cuts, and the ever-meaningless constitutional amendment to ban flag-burning. http://www.theleftcoaster.com/archives/0 01240.php   http://www.washingtonpost.com/wp-dyn/art icles/A20867-2004Mar1.html  http://www.freedomforum.org/templates/do cument.asp?documentID=12850

Republicans don't even care if their wedge issue legislation passes, as long as it helps them to put Democrats in a bad light so that they can prevail in elections.  But, unwilling to let the Republicans succeed this time, Hillary Clinton developed a two-prong strategy:  (1) she opposed the Republican proposed Flag Amendment and (2) proposed a Democratic alternative that would be a statute only,  as a way of  successfully foiling efforts toward an Amendment to the Constitution.  http://www.nydailynews.com/news/wn_repor t/story/426380p-359710c.html  

It looked like a potentially risky gambit, since the bill might conceivably have passed.  The Constitutional Amendment only failed by one vote.

But, even if such a statute passed it would likely have been struck down as unconstitutional under the US Supreme Court's established free-speech precedents.  In Texas v. Johnson, the US Supreme Court found that:

Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 402-420.

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 402-406.

http://caselaw.lp.findlaw.com/scripts/ge tcase.pl?court=US&vol=491&invol= 397

Nonetheless, the Republicans perpetually propose to ban flag burning simply for the purpose of driving flag-loving American away from the Democratic Party.

In the context of a strong Republican movement (with some Democratic support) to advocate a Constitutional Amendment to ban burning of the Flag, Hillary had proposed a flag burning law that would not be enshrined in the US Constition.  Like many Congressional Democrats, Hillary was up for re-election and she needed to defeat the flag proposals in a way that would not hurt her re-election campaign  The purpose of Hillary's statutory proposal was to defeat the proposed Constitutional Amendment, but in a way that would not hurt Democrats' chances of winning control of the US Congress.  

Hillary's gambit worked perfectly in the end:  By proposing a seemingly similar bill to compete with the proposed Consitutional amendment, those who supported a ban on flag burning became divided between supporting a Constitutional ban and supporting a statutory ban that would not amend the Consitution.  With anti-flag-burning forces divided between these two proposals, neither of them could muster the votes that were needed to move them forward and so the law stayed as it had been before the debate began, which is what the Democratic left wanted.

But the purists in the Democratic Left didn't like the way in which Clinton defeated the Flag Burning Amendment, and Arriana Huffington's criticism is an example:

TUESDAY'S SENATE debate on flag desecration was emblematic of Hillary Rodham Clinton's ongoing attempt to rebrand herself as a red-state-friendly Dem by supporting a bill that would have criminalized flag descrcration, while still holding on to her liberal bonafides by voting against the Constitutional amendment banning that desecration. It was eating your patriotism cake and having it too. http://www.latimes.com/news/opinion/comm entary/la-oe-huffington29jun29,0,1354816 .story?coll=la-news-comment-opinions

Actually, that's  exactly what Clinton did.  She successfully expressed support for the US flag while also defeating a Constitutional amendment to ban burning that flag.  Then, she got re-elected in New York by 27 percentage points.  http://www.dailykos.com/story/2006/11/8/ 103716/511 Was she wrong?  

The left was angry because they wanted Hillary to vote against the Amendment and suffer politically for it.  They were infuriated when Hillary found a way to defeat the Amendment while strengthening her position with moderate voters.  Because the Left doesn't trust politicians who are strong with moderate voters, the voters whom Democrats most need if we are to retake the Presidency as Bill Clinton did for the Democrats in 1992, re-elected in 1996..  http://www.latimes.com/news/opinion/comm entary/la-oe-huffington29jun29,0,1354816 .story?coll=la-news-comment-opinions

The Senate rejected by a single vote yesterday an effort to amend the Constitution to allow Congress to ban desecration of the American flag, after a two-day debate freighted with political calculations and sharp disputes over the limits of free speech.

The 66 to 34 vote fell just short of the two-thirds majority required to approve a constitutional amendment and submit it to the states for ratification. It marked the latest setback for congressional attempts to supersede Supreme Court decisions in 1989 and 1990. Justices narrowly ruled that burning and other desecrations of the flag are protected as free speech under the First Amendment.

As expected, three Republicans -- Robert F. Bennett (Utah), Lincoln D. Chafee (R.I.) and Mitch McConnell (Ky.) -- voted against the amendment. Fourteen Democrats voted for it. The House approved the measure 286 to 130 last year.
http://www.washingtonpost.com/wp-dyn/con tent/article/2006/06/27/AR2006062701056. html (Emphasis added.)

The vote in the US Senate was so close that if Hillary Clinton had supported the Flag Amendment it would have passed. Hillary proposed a  an unsuccessful statutory bill to ban flag burning but she refused to support an amendment to the Constitution and even while 14 Democratic senators supported the amendment.  As a result, the Amendment failed by just one vote - Hillary's vote.

Meanwhile, because Democrats were able to express firm support for a statute against a flag burning, they could not be pained as anti-patriotic even though they had voted against amending the Constitution.  This deprived Republicans of a desperately needed wedge issue going into the 2006 Congressional elections.

In the heat of battle, it was easy to be misinformed, misunderstand and misinterpret what Hillary Clinton was doing.  I did.  But, in retrospect, she opposed the Flag Amendment in a way that prevented flag burning from becoming an issue in the November elections.  And gave cover to her fellow Democrats.  If she had voted with Republicans, their Flag Burning Amendment would have passed, but instead she voted with the Democrats and so the Amendment failed.

Of course, DailyKos participants were pre-disposed to believe the worst about Hillary Clinton.  As is so often the case, they were not interested in facts, subtlety or strategy, but only in tarring Hillary Clinton with the broadest brush possible, as their angry and factually incorrect comments to my first diary at DK attest. http://www.dailykos.com/story/2006/4/22/ 94948/8215  And so they, too, participated in misinforming the reading public about the positions of a leading Democratic candidate for the Presidency.  Ultimately, on flag burning, we were all wrong about Hillary Clinton.