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Senate battle set after flag-burning ban passes House

WASHINGTON -- A constitutional amendment to outlaw flag burning cleared the House yesterday but faced an uphill battle in the Senate. An informal survey by the Associated Press suggested that the measure lacks enough Senate votes to pass.

The 286-to-130 outcome was never in doubt in the House, which had passed the measure or one like it five times in recent years. The amendment's supporters expressed optimism that a Republican gain of four seats in last November's election could produce the two-thirds approval needed in the Senate as well, after four failed attempts since 1989.

But an AP survey yesterday found 35 senators on record as opposing the amendment -- one more than the number needed to defeat it, barring a change in position.

Late yesterday, Senator Hillary Rodham Clinton, Democrat of New York, said she would vote against the measure. ''I don't believe a constitutional amendment is the answer," Clinton said in a statement.

Senator Ken Salazar, Democrat of Colorado, remained undecided, a spokesman said.

The House debate fell along familiar lines over whether the amendment strengthened the Constitution or ran afoul of it. Striking down a raft of laws, the Supreme Court ruled in 1989 that burning the flag was protected by the constitutional right to free speech.

Supporters said there was more public support than ever because of emotions following the 2001 terrorist attacks in New York and Washington. They said detractors are out of touch with public sentiment.

''Ask the men and women who stood on top of the [World] Trade Center," said Representative Randy ''Duke" Cunningham, Republican of California. ''Ask them and they will tell you: Pass this amendment."

Critics accused the amendment's supporters of exploiting the attacks to trample the right to free speech.

''If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents," said Representative Jerrold Nadler, a New York Democrat whose district includes the site of the former World Trade Center.

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