[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE CONTINUITY OF CONGRESS: SPECIAL ELECTIONS IN
EXTRAORDINARY CIRCUMSTANCES
=======================================================================
HEARING
before the
COMMITTEE ON HOUSE ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 24, 2003
__________
Printed for the Use of the Committee on House Administration
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COMMITTEE ON HOUSE ADMINISTRATION
BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan JOHN B. LARSON, Connecticut
JOHN L. MICA, Florida Ranking Minority Member
JOHN LINDER, Georgia JUANITA MILLENDER-McDONALD,
JOHN T. DOOLITTLE, California California
THOMAS M. REYNOLDS, New York ROBERT A. BRADY, Pennsylvania
Professional Staff
Paul Vinovich, Staff Director
George Shevlin, Minority Staff Director
CONTINUITY OF CONGRESS: SPECIAL ELECTIONS IN EXTRAORDINARY
CIRCUMSTANCES
----------
WEDNESDAY, SEPTEMBER 24, 2003
House of Representatives,
Committee on House Administration,
Washington, DC.
The committee met, pursuant to call, at 2:05 p.m., in room
1310, Longworth House Office Building, Hon. Robert W. Ney
(chairman of the committee) presiding.
Present: Representatives Ney and Larson.
Staff Present: Matt Peterson, Counsel; Paul Vinovich, Staff
Director; Jeff Janas, Professional Staff Member; Charles
Howell, Minority Chief Counsel; George Shevlin, Minority Staff
Director; Matt Pinkus, Minority Professional Staff Member; and
Catherine Tran, Minority Staff Assistant.
The Chairman. The committee will come to order.
The committee is meeting today to discuss the important and
grave issue of continuing operations of Congress in the event
of a catastrophic attack. This is not a comfortable issue to
confront, of course, as it forces us to contemplate the
possibility of our own demise in a terrorist attack or
catastrophic situation.
However, we have a duty as representatives of the people of
the United States to examine this issue seriously and
thoroughly, to determine how best to ensure that the People's
House continues to function effectively during times of a
national emergency.
Since the terrible and fateful morning of September 11th,
2001, we have become painfully aware of the destructive intent
of our country's terrorist enemies as well as the increasingly
sophisticated and devastating methods by which they carry out
their deadly work.
The possibility that terrorists could detonate a nuclear,
chemical or biological weapon of mass destruction within our
Nation's capital, annihilating major portions of our Federal
Government, potentially killing dozens or hundreds of Members
of Congress, is one that we cannot ignore, though we pray it
never happens.
In the event of such an attack, the presence of a strong
national leadership will be more important than ever before.
The people of this country will be desperately seeking
reassurance that their Government remains intact and capable
while acting vigorously in the Nation's defense.
Following a catastrophic attack, it would be imperative
that a functioning Congress be in place with the ability to
operate with legitimacy as soon as possible. How to ensure the
continuity of the House of Representatives under such
circumstances is a complex and difficult question that defies,
I think, a simply solution.
When drafting the Federal Constitution, our Founding
Fathers designed the House to be the branch of government
closest to the people. They believed the only way this
objective could be accomplished was through frequent elections.
Consequently, the Constitution, Article 1, section 2, clause 4,
provides that vacancies in the House may be filled only through
special elections. As a result, no Member has ever served in
this House who has not been first elected by the people he or
she represents.
Today the committee will be considering H.R. 2844, the
Continuity and Representation Act of 2003. This bill provides
for expedited special elections in the event of a large number
of House vacancies resulting from a catastrophic attack or
other extraordinary circumstance.
The goal of this legislation is to ensure the continuing
operation of the House during the times of national crisiswhile
at the same time protecting the character of the House as an elected
body.
The debate on this subject has essentially divided into two
camps, those who view a quick reconstitution of the House as
the most important consideration, and thus support a
constitutional amendment allowing for the appointment of
temporary replacements to fill vacant House seats; and, number
2, those two believe retaining the House's elected character is
paramount and therefore support expedited special elections.
Without objection, because of time and the votes, I am
going to submit the rest of this for the record.
[The information follows:]
Those who support an amendment argue that because of the
many logistics involved in the conduct of an election, filling
numerous House vacancies by means of special elections would be
too cumbersome and time-consuming a process--one that could
result in Congress ceasing to function at all for a substantial
period of time. Thus, those who take this position believe the
most effective way to address the continuity issue is for the
Constitution to be amended to permit the appointment of
temporary replacements to the fill vacant House seats.
Though this proposal represents an efficient method for
filling House vacancies in emergency situations to ensure the
continuing operations of the House, it also raises the specter
of a House whose membership is dominated by unelected
representatives, thereby altering the history of the House as a
body consisting only of individuals elected by the people.
Resolving the tension between expeditiously filling House
vacancies in the event of a catastrophic terrorist attack and
maintaining the House's historical character is no easy task.
For this reason, the Committee has called this hearing so that
the leading thinkers on the issue of congressional continuity
can shed more light and bring greater understanding on the many
different aspects of this consequential issue.
The Chairman. Mr. Larson.
Mr. Larson. Thank you very much, Mr. Chairman.
Also because of the time constraints, and I recognize that
we are going to vote shortly, let me say that I join with the
chairman in looking forward to this discussion. It has been a
rarity in the United States Congress, for me at least, to have
the kind of in-depth dialogue that I have read about, both in
the newspaper accounts and also from the testimony of the
distinguished panel that we have had before us, and I must say
how impressed I am with that testimony. We don't do enough of
reading about James Madison, and we don't do enough in this
body of listening to what other learned Members of our august
body bring to bear on important issues of this nature.
As the chairman has indicated, clearly this is a matter
that has been graphically brought before us because of the
events of September the 11th. And Members have sought different
solutions. And in the process, I think have engaged the body in
enlightened debate. And our purpose this afternoon is to
continue that enlightened debate.
I might add that Chairman Sensenbrenner and Chairman
Dreier, in reading through their testimony, give salient
examples of why we shouldn't abandon the very elective nature
of our body. And yet equally compelling arguments have been
given by Mr. Frost and Mr. Baird about the urgency to address a
body and to have a body that is capable of responding to a
crisis.
So we find ourselves in this committee today in, I think,
the laudable position of listening to enlightened members of
our own body, and then a panel of experts afterwards who will
debate this issue.
I will submit the rest of my written testimony and at this
time, Mr. Chairman, get the ball moving so that we can hear
from our panel of experts, which is more important.
[The statement of Mr. Larson follows:]
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The Chairman. Thank the gentleman from Connecticut.
If there are no further statements, we will commence with
the testimony of the panel. On the first panel, we have
Chairman Sensenbrenner, Wisconsin, the Chairman of the House
Judiciary Committee, the chief sponsor of H.R. 2844; Chairman
David Dreier, of California, the Chairman of the House Rules
Committee, who is also sponsoring H.R. 2844; Congressman Martin
Frost of Texas, the ranking Democratic member on the House
Rules Committee; Congressman Brian Baird, who has proposed a
constitutional amendment that would permit temporary
appointments if a significant member of Members are unable to
serve during a national emergency; and Congresswoman Candice
Miller, cosponsor of H.R. 2844. And, I would note former
Michigan Secretary of State.
With that, Chairman Sensenbrenner, we will start with you.
STATEMENT OF THE HON. JAMES SENSENBRENNER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WISCONSIN
Mr. Sensenbrenner. Thank you very much, Mr. Chairman. H.R.
2844 is a responsible effort to enact a straightforward and
effective procedure to replace House Members should a
catastrophic attack strike the Congress. This legislation would
provide for the expedited special elections for Members to fill
vacancies in extraordinary circumstances, defined by the bill
as occurring when the Speaker declares that there are more than
100 vacancies.
Within 14 days following such an announcement, the State
political parties may nominate candidates as provided by State
law, to run in the special election to be held within 21 days.
Let me say that I am not set on the 21-day deadline. I
think that that deadline can be extended. But, it should not be
extended unduly, because it is important that people who are
elected to fill vacancies be elected very quickly, so that they
can come to Washington with the mandate from their voters.
I would also state that there is no such thing as a perfect
election. However, I think that an election, imperfect though
it may be, is better than having appointed Members sit in the
House of Representatives; and this entire issue is whether,
should there be catastrophe, replacement Members of the House
of Representatives should be elected by the people or appointed
by some appointing authority. Elected representatives, which
has always been the case, or appointed representatives, which
has never been the case.
In the Federalist Papers, James Madison used the strongest
of terms to state that the House must be composed only of those
elected by the people. And explicitly rejected the proposition
that the appointment of Members authorized by Congressional
legislation is compatible with the American Republic.
Therefore, the very concept offered by opponents of this
legislation, a constitutional amendment that would allow for
the appointment of House Members, was explicitly rejected by
the Founders as antithetical to republican, with a small ``R,''
government.
Congress has the clear constitutional authority to alter
State election laws. The Founders explicitly considered
Congress's power to require expedited special elections the
solution to potential discontinuity of government in emergency
situations.
As Alexander Hamilton wrote in the Federalist Papers, the
Constitution gives Congress, quote, ``a right to interpose''
its special election rules on the state, quote, ``whenever
extraordinary circumstances might render that interposition
necessary to its safety.''
While a catastrophic attack on Washington would no doubt
cause massive disruption here, the situation would be less
severe in localities throughout the country where the special
elections would be held. Several State laws already provide for
very quick special elections in normal circumstances, let alone
emergency circumstances.
For example, Minnesota law provides that a specialelection
be held no more than 33 days after a vacancy. That same State, less
than a year ago, further demonstrated the resiliency of the election
process when the tragic death of Minnesota Senate candidate Paul
Wellstone required the substitution of a new candidate just 10 days
before the election.
Today absentee and overseas ballot requests transmitted by
electronic means would help facilitate expedited Federal
elections. Touch screen voting could reduce the need for poll
workers and even eliminate entirely the need for paper ballots,
and the Pentagon has already developed a system to allow troops
overseas to vote over the Internet in the 2004 elections. With
today's constantly advancing election technology, it will make
it easier in the near future for people to exercise their right
to elected representation in special elections.
Proposals for a permanent constitutional amendment would,
in certain crucial moments in American history, ban voting
entirely for everyone, everywhere. In other words, a
constitutional amendment would accomplish what no terrorist
can, mainly striking a fatal blow to what has otherwise always
been the ``People's House.''
Remember, Representatives represent people, Senators
represent States. H.R. 2844 is founded on clear existing
constitutional authority, while preserving the vital time
tested value of elected representation that has made this
Nation the most successful experiment in self-governance the
world has ever known. Thank you.
The Chairman. Thank you for your testimony.
[The statement of Mr. Sensenbrenner follows:]
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The Chairman. Chairman Dreier.
STATEMENT OF THE HON. DAVID DREIER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Dreier. Thank you very much, Mr. Chairman, Mr. Larson,
Mr. Linder, Mr. Brady. I want to say at the outset that I
greatly appreciate, as all of my colleagues do, your
willingness to take on this issue; and I appreciate especially
the remarks of Mr. Larson about the desire of many of us to
spend some time focusing on what it is the framers of the
Constitution actually had in mind.
I think that Chairman Sensenbrenner has very ably focused
on two of the authors of the Federalist, James Madison and
Alexander Hamilton, in underscoring the fact that having this,
the first branch of our government, the entity which is
actually mentioned before any other, that being the people's
House, the House of Representatives is mentioned in Article 1
of the Constitution, ahead of the United States Senate, and
that realization, that not only as you said, Mr. Chairman, that
every single Member who served here has only been elected, they
have only served here based on their having been elected.
There is no other Federal office where that exists. We all
know that one can obviously be appointed to a vacancy in the
United States Senate. We know that one, we looked at President
Ford, by virtue of appointment, can become President of the
United States. But, the people's House is the only place where
that exists. And I know that that is something that is sacred.
And to me, I believe that we should be very very careful before
we look at the prospect of amending the U.S. Constitution.
In fact, members of the Commission, and I want to
congratulate them for their work, like our former minority
leader, Bob Michel, said it very clearly when he looked at the
fact that the constitutional amendment should be the very last
resort.
I will tell you, as I approach a quarter of a century of
service here in the House of Representatives, I have got to say
that I voted for constitutional amendments in the past; and,
frankly, I have changed my votes now on constitutional
amendments. I used to vote for the flag-burning amendment.
One of the reasons was that Jerry Solomon threw me up
against the wall and threatened me if I don't vote in favor of
the flag amendment. But, before he passed away, I told him that
I was voting against the flag burning amendment, and I voted
for the constitutional amendment to balance the budget. But,
you know what, if we had a constitutional amendment brought
forward to balance the budget, requiring abalanced budget
again, I would not vote in favor of that constitutional amendment,
because we have proved that we can, in fact, balance the budget without
amending the U.S. Constitution.
Similarly, I think that we need to do everything that we
possibly can to ensure that we maintain the nature that the
Framers had for this institution. And that is why I am
particularly pleased that the lead author of this important
measure, Mr. Sensenbrenner, has said that we can look at moving
beyond the 21 days as prescribed in our legislation. And I
think that we should do that.
I just want to say that this is--what we ponder here is
obviously a horrible thought. As the last person to leave the
U.S. Capitol on September 11th, I was stupid enough to stay
there up until 11 o'clock, upstairs there on the third floor.
And I finally got out. And when you look at the Capitol and
think about what could have happened, and of course what could
have happened to our membership, it is just a terrible,
terrible thought.
So I will tell you that I think that as we look at this
challenge that is ahead of us it is a difficult one, but
please, please, please go very slowly.
Let me just say that as sort of the lone Republican who
represents Hollywood, a number of people have speculated over
exactly, because this is all kind of--this whole prospect of
losing all of these Members of Congress could create a great
science fiction movie.
One proposal that has come forward for me as we look at the
virus of an amendment to the U.S. Constitution and all of the
unintended consequences that that might create, someone
proposed a movie that was actually entitled, The Virus That Ate
the Constitution.
When I looked at the characters in this, because of this
very important piece of legislation, Liam Neeson was to play of
course, the role of Chairman Sensenbrenner. The academics who
are obviously involved in this, I sort of see Woody Allen and
Don Knotts in those roles, Mr. Chairman. And you, Mr. Chairman,
of course I see Robert Redford fulfilling your role. And I
should say that the very modest role that I would play would be
filled by the very humble Arnold Schwarzenegger.
But this is a serious matter for us as we look at this. But
the ramifications could be very, very far reaching, and I wish
you well in your deliberations. I will say that we can move
very, very quickly in passage of this legislation as opposed to
the normal 7 years that it would take, on average for
ratification of an amendment to the U.S. Constitution.
The Chairman. With that we are going to terminate your
time.
[The statement of Mr. Dreier follows:]
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The Chairman. Mr. Frost of Texas.
STATEMENT OF THE HON. MARTIN FROST, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Frost. Mr. Chairman, we have a series of votes. I don't
know if you want me to begin my testimony or if you want to
break at this point.
The Chairman. We have 10 minutes. So I will leave it up to
you.
Mr. Frost. Mr. Chairman, I will briefly summarize my
statement and submit the rest for the record.
The Chairman. Thank you.
Mr. Frost. Because I know that you have other witnesses.
Mr. Chairman, this is a situation like I encountered when I
practiced law in that you draft a will for a client, and the
client won't come in and sign the will, because he is afraid if
he signs it he is going to die the next day.
Well, that is really what we face here. Congress will not
come to grips with this in a meaningful way, because we are
afraid of our own demise. Unfortunately, we have to entertain
that possibility. I hope it never occurs. But, we do have to
entertain the possibility of mass casualties.
Mr. Chairman, I am pleased to appear before you. But let me
say at the outset, I am opposed to this legislation as a sole
solution to the problem. I do not believe that mandating
expedited special elections will work to resolve a problem of
catastrophic proportions.
I am convinced that the only solution is a constitutional
amendment that will provide for the temporary replacement of
deceased or incapacitated Members of the House. These temporary
replacement members would provide Americans with unquestionably
legitimate representation in the House during the immediate
aftermath of a catastrophic attack, until States have time to
hold real special elections that allow voters to make informed
choices about who should represent them for the remainder of
the Congressional term.
My statement spells out concerns that I have about the very
short time for a special election, and the great difficulty in
holding those elections. I would like to add one point, Mr.
Chairman, that we cannot assume that any attack would be
limited solely to Washington, D.C. It is quite possible that
any attack could also take place in the State capitals and in
the major cities of other States simultaneously, thereby
paralyzing the structures, the electoral structures of some of
our states.
So I think it is illusory to assume that you can have
special elections that would be done in a prompt and meaningful
way in a relatively short period of time; and it is absolutely
critical that the next day, or shortly thereafter, when an
attack occurs that there be a functioning Congress.
I would remind the gentleman before, that the--during the
deliberations of the special working committee that Chairman
Cox and I co-chaired during the last Congress, it was brought
out that a quorum of the House of Representatives is a majority
of those sworn and living. And so that if you have five Members
who survived, a quorum would be three; and I would suggest to
you, to this committee and to my colleagues, that the business
of the country being conducted by three Members would not be
something that would be widely respected and something that our
population could have confidence in. So that it is essential
that the House be reconstituted as quickly as possible.
I believe that a constitutional amendment that provides for
a method for appointing successors, whether--there are several
methods that have been proposed, and I will not at this point
take sides as to which one I would prefer. But a method that
provides for prompt appointment would ensure the efficient and
prompt functioning of this government, which is absolutely
critical and which was not a situation contemplated by our
Founders.
Sometimes you have to realize that our Founders, no matter
how great they were, did not and could not have contemplated
things that are occurring in the 21st century. The mass
destruction of the Congress was not something that I believe
they ever contemplated. Had they done so, I believe they would
have provided for a mechanism for replacement in a prompt way.
And I submit the remainder of my statement for the record.
The Chairman. Without objection. I thank the gentleman for
his testimony.
[The statement of Mr. Frost follows:]
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The Chairman. We have two votes. If you would like to
return--if the Members that have testified would like to return
for questions, I will leave it up to them.
[Recess.]
The Chairman. The committee will come to order, and we will
continue with testimony from Congressman Baird of Washington.
STATEMENT OF THE HON. BRIAN BAIRD, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Mr. Baird. Mr. Chairman, I want to thank you for holding
this hearing. My distinguished friend and colleague, the
ranking member, Mr. Larson, and Mr. Linder, thank you.
This is as serious as it gets. I am glad that we are
holding hearings on this.
Two years ago, on the night of September 10th, 3,000 of our
fellow citizens went to bed not knowing that they would be
killed the next day. There is no guarantee that on any given
day when we go to bed or any given night we are not facing the
same fate the next day. What is certain is that if that were to
happen right now this Congress and this country are ill-
prepared to deal constitutionally with the loss of the majority
of the House Members, or even substantial numbers.
It is true, I think, that the Framers could not have
imagined this. It is also true that the Framers placed a high
premium on the principle of direct elections. But that is not
the only thing that they placed a high principle of value on.
There were also fundamental concepts of proportion of
representation by the States in one of the bodies of the
Congress. Checks and balances and separation of powers were
also critically important.
Those who argue that in some way proposals to amend the
Constitution to provide for prompt replacement, followed by
genuine election, is somehow eating the Constitution, would, in
so doing, allow the entire Article 1 provisions, the whole set
of Article 1 provisions to be nonexistent and overridden by an
executive who was not elected, most likely, and who may well
declare martial law.
In our fealty to this principle of direct election, which
we all hold dear and important, we must not allow that to
eliminate all other Article 1 functions during the time of
grave national crisis. Yet that is precisely what we would do.
We need to get past hyperbole. We need to get past false
dichotomies and acknowledge the following principles.
Every Member of this Congress believes that, ideally,
Members of the House of Representatives should be elected. But
this is not about an ideal world. It is true that Madison would
have held fast against anything other than direct elections,
but I reckon he would have held fast against the simultaneous
destruction of every Member of this body. If he were to face
the situation we face today, he would also be asking, I trust,
and I have read extensively about the gentleman and his
position on the Constitution, he would also be asking, who
checks the executive? He would be asking, who has other powers?
And he would be gravely concerned about vesting all of the
powers of this country in a single nonelected person whom most
Americans don't know. So let's not make a false dichotomy that
we don't care about special elections.
In the initial proposal I offered 2 years ago, we proposed
a special election. But the bill before us today I believe is
unrealistic and has several problems.
First of all, to mandate, in my original proposal we put
forward a 90-day period, but you are assuming there that ideal
conditions will prevail. What happens if you mandate a 3-week
period or a 90-day period and circumstances, related perhaps to
the disaster itself, prevent you from doing that? It is better
to provide for prompt replacement of wise and reasoned people
and then have genuine elections so that the American people can
truly deliberate.
It is not simply getting to cast a vote that matters, itis
getting to cast an informed vote in a judicious manner that matters,
and we must provide for that. We must not allow the proposal before us
and we are discussing today in this committee to lead the American
people or the Members of this Congress to pat ourselves on the back and
think that problems have been solved.
At a bare minimum, even under the most ideal conditions,
and I think conditions that are not realistic, we would still
be without a Congress for at least 3 weeks, probably 5, and I
think more likely, judging from the State executives I have
spoken with and election executives, closer to a couple of
months.
Now I want to thank the committee. I want to thank the
working group, the Commission on Continuity chaired by Norm
Ornstein and Tom Mann, and also my good friend, Jim Langevin,
who is a former Secretary of State himself.
They assure us that maybe you can hold elections, but would
they be genuine? That is questionable. And, more importantly,
what happens to the Congress during that time period?
Do not sacrifice Article 1 of the entire Constitution. Do
not sacrifice checks and balances. Do not sacrifice separation
of powers. And do not sacrifice proportion of representation in
the name of specious and hasty elections. That is my
fundamental message.
Let me just close with this. It is somewhat symptomatic,
perhaps--and I enjoyed the humor of our chairman of the Rules
Committee about who would play whom in a movie about this
catastrophe. We all want to fantasize that we will be the
survivors. We all want to fantasize that we will be played by
the heroic lead male or lead female.
But the reality in this case is we are going to be played
by pieces of charcoal, and we have got to accept that, and we
have to deal with that. Somebody has to come in and pick up
those pieces, and our job is to create a playing field in which
they can do that, to write the script that allows wise and
decent people to fill the roles. We don't know who they are,
necessarily, but we must not have those roles played by nobody,
and we must not leave an unelected person running this entire
country under martial law.
The Chairman. Thank the gentleman for his testimony.
[The statement of Mr. Baird follows:]
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The Chairman. The gentlelady from Michigan.
STATEMENT OF THE HON. CANDICE MILLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mrs. Miller. Thank you, Mr. Chairman, certainly Ranking
Member Larson, members of the committee as well. It is
certainly a great opportunity for me to be able to address this
issue today.
I am here to speak in favor of H.R. 2844, the Continuity of
Representation Act of 2003. I think the need for this
legislation is so very, very critically important in the wake
of the absolutely horrific attacks against our Nation on 9/11.
Of course, as we all know, on that fateful day the enemies
of freedom clearly targeted the pillars of our Nation. The
terrorists attacked the World Trade Center, which represented
our economic freedom. They attacked the Pentagon, which
represents our military strength. By all accounts, Flight 93
was targeted either at the White House or the Capitol Building,
both symbols of our democratic form of government and our
freedom. In fact, I think it was only due to the heroic actions
of those passengers on that particular plane that stopped it
from reaching its intended target.
The Congress must ensure that our government remains strong
and stable in the event of a catastrophic attack, and so we
begin to think about what to do in regards to the United States
House of Representatives if the unthinkable were to happen.
Of course, the President would be replaced quickly by the
existing line of succession. The courts would be replaced
quickly by a Presidential appointment. The Senate would be
reconstituted quickly through a gubernatorial appointment as
the 17th amendment outlines. It is only the House of
Representatives that would not be able to function quickly
during a time of national emergency because of the
constitutional provision which requires direct election of the
people.
Let me quote Article 1, Section 2, which does state: When
vacancies happen in the representation on any State, the
executive authority thereof shall issue writs of election to
fill such vacancies. I think that is the operative phrase here:
writs of election.
I am proud to be an original cosponsor of H.R. 2844 because
this bill does provide an effective mechanism for the
reconstitution of the House of Representatives in the event of
a tragedy, and it does so by ensuring that we continue to elect
Members of the House, who are in fact the only Federal elected
officials who for the entirety of our national existence have
been directly elected by the people.
There have been a number of suggested alternatives to the
proposals that we made in this legislation. Some have called
for temporary appointment of Members of Congress in such an
emergency, either through gubernatorial appointment, like that
in the Senate, or even by a sitting Member naming a successor
to take the seat in the event of a Member's death.
Either of these ideas would require a constitutional
amendment, which would be a change from both tradition and
constitutional mandate, which expressly calls for the direct
election of Members of the House.
Many people have also argued about the difficulty of the
process of holding so many elections, special elections in such
a short period of time. This is an area where I do have some
experience, and I have to agree that it would be difficult. But
it has also always been my observation that election officials
will always rise to the occasion to complete the required work,
especially in time of a national emergency.
Before coming to Congress I was honored to serve as
Michigan's Secretary of State for 8 years, and one of my
principal responsibilities in that role was serving as the
Chief Elections Officer of my State. I do understand that the
time frame that we have called for is greatly compressed; and I
think this is a starting point for our debate, as bothChairman
Sensenbrenner and Dreier pointed out. But let me point out several
areas where the process would need to be modified I think to
accommodate this very short time frame.
First of all, you would be eliminating a primary by having
the political parties, who are recognized under their
respective State laws, of course, nominate their candidates.
This would also negate the requirement for petitions to be
gathered by the candidates as well as the verification process
that most States do require, either by their secretary of State
or their boards of canvassers.
In regards to election administration functions such as
ballot printing, programming, testing, hiring workers and
preparing polling places, most polling places are relatively
stable, in fact, so much so that they are printed on voter
identification cards for the most part. A congressional ballot
would only contain a single office, which would dramatically
increase--or, ease printing, programming and testing.
It should also be noted that since Congress has passed the
HAVA Act, the Help America Vote Act, most States are embracing
election reforms such as following a model that was begun in
Michigan of a State-wide computerized voter registration file
which is constantly updated by local election clerks and motor
vehicle departments, thereby allowing an up-to-date, clean file
to be printed at any time and provided to the polling sites.
Also, States are now rapidly moving towards a uniform
system of voting machines. In Michigan, for instance, we will
soon have all 5,300 of our precincts using optical scan voting
equipment. So that would allow for a vendor to always have a
camera-ready ballot, and all you would have to do is plug in
the name of the candidates and to go to print.
In regards to overseas military voting, the Department of
Defense has already piloted a program which allows our troops
to vote by the Internet, so that the men and women protecting
our Nation would not be disenfranchised.
I recognize that this is not a perfect situation, but I
also believe that reconstituting the House of Representatives
quickly in time of a national emergency is of critical
importance, and I do believe that we should limit our debate to
the amount of time necessary to hold orderly elections where
the integrity of the process is upheld. Under no circumstances
do I believe that we should deviate from the direct election of
Members of the people's House.
Thank you, Mr. Chairman.
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The Chairman. Well, I thank the panel for their very
interesting testimony.
I had a question for Chairman Sensenbrenner.
There has been a couple of criticisms that have been out
there that, one, the candidates would not be selected by the
voters through a primary process; rather, would be selected by
political parties. The second, the accelerated time schedule
would not allow for people to become familiar with the
candidates' stances.
I am not worried about that second one. I am not sure in 2
years people can figure out a candidate's stance. But I am
wondering about the first criticism, about the primary process.
Any thoughts on that?
Mr. Sensenbrenner. Well, primary elections have been
something that started out in the early part of the 20th
century. We are the only democracy that has political parties
nominate its candidates through a primary election process. It
seems to me that in times of a severe national emergency which
would wipe out approximately a quarter or more of the Members
of the House of Representatives the quickest way to get an
election organized would be for the parties to nominate
replacement candidates.
I would point out that there are some States in their
special election laws that do not allow for primaries but just
put everybody's name on the ballot. I think that having the
recognized political parties do it would be a way, as
Representative Miller has said, of shortening the process,
preventing having a separate campaign for a primary, as well as
not having time for the circulation of petitions and the
verification of those petitions.
The Chairman. Thank you.
The question I had of either Congressman Frost or Baird,
the language of the proposed constitutional amendment does not
limit appointments of House Members only to instances where a
large number of Members are killed or incapacitated as a result
of a catastrophic attack. So, you know, is it your view that
routine vacancies would be filled by appointments?
Mr. Frost. I would be glad to start.
Obviously, any wording of any constitutional amendment
would have to be developed by the Judiciary Committee, by Mr.
Sensenbrenner's committee; and certainly there is no one
formula, there is no one constitutional amendment that everyone
has agreed upon in advance, as I understand.
So my guess is--it is just a guess, Mr. Chairman--that if
an amendment were to be brought forward, that it would--there
would be a threshold number prior to the amendment taking
effect. I don't know what that threshold number would be, but
it would have to be a substantial number.
Mr. Baird. Mr. Chairman, if I can address that, if I might.
I have given a great deal of thought to this, as you know,
began the night of September 11th, and participated in the
working group and the commission.
We have run into a fundamental challenge, actually several.
When you try to set a threshold for at what point do we
institute special measures, be it special expedited elections
or appointments, and there--let me give you a couple of the
problems that arise.
First of all, let's suppose you say, I think it is very
questionable whether or not it is truly constitutionally
legitimate, in spite of what the House rules say, to have a
quorum be chosen, sworn and living. Because if it is three
people, it certainly does a grave injustice to what the Framers
wanted. So then somewhere above that.
Well, let's suppose you set it at a hundred. If a hundred
members of the Republican Conference or the Democratic Caucus
are suddenly eliminated, which is quite easy to imagine if we
are at a retreat somewhere, do we still have the same
representative body that we had before?
If 200? We are still not to a majority threshold. If we
lose the entire delegation of the State of California, does
California, the seventh largest economy in the world, not have
representation in the U.S. Congress?
I understand that the amendment that I have proposed as an
alternative would substantially change the scenario,albeit it
would still provide for special elections to be held promptly following
the placement. But my premise in suggesting that we would nominate our
own replacements is this.
Our citizens have elected us to make decisions about
whether we take this country into war and send our sons and
daughters into combat. They have elected us and empowered us to
tax them or give their taxes back to them, et cetera, et
cetera. As the representative of that district, we know the
district or should know it rather well. We are likely to choose
members of our own party, thereby obviating inserting party
language which has never existed in the Constitution. And I
think it is more parsimonious and elegant.
It is a change. I recognize that. But it is a change that,
in the realities of the time, I think it protects us well from
a more disastrous scenario.
Finally let me say, if we are to return, and I think wisely
so, to the counsel of Madison and Jefferson and Franklin, et
al., I wonder what they would say about adhering to the
principal of special election but inserting party politics into
that. Because my recollection is that they had some real
concerns about parties, and allowing the parties to choose the
candidates for the people might in itself vary substantially
from the intent of the Framers, thereby raising questions about
the legislation before us today.
The Chairman. Do you have any thoughts on what the
threshold should be? Loss of 50 Members? 100?
Mr. Frost. Well, I don't have a magic number, Mr. Chairman.
But I think that is something that would be subject to
deliberation by the Judiciary Committee with the advice of
people in our leadership on both sides, as well as advice of
scholars who have studied the subject.
The Chairman. Mr. Larson.
Mr. Larson. Thank you, Mr. Chairman.
My question first would be directed to Chairman
Sensenbrenner or Representative Miller, if they choose to
respond. But how was the number of 100 established? When you
went through this process, why did you choose a hundred?
Mr. Sensenbrenner. It was entirely an arbitrary number, as
any number from 1 to 435 would be. One hundred is approximately
a quarter of the House of Representatives; and I think that Mr.
Dreier and I and the people that we talked to felt that that
was sufficient trigger to invoke that part of Article 1,
Section 2, Clause 4, relative to extraordinary circumstances.
Mr. Larson. You and Mr. Dreier both eloquently talk about
the sacred relationship between--in the people's House being
elected by the people. But a scenario under which the whole
House might be wiped out or a scenario, as Mr. Frost and Mr.
Baird have pointed out, in which a quorum is a limited number
of people, how do you answer their concerns about the first
amendment in general, and the concerns that they have raised
with regard to the first amendment?
Mr. Sensenbrenner. Well, the Constitution, as we all know,
has an elaborate system of checks and balances to prevent any
one individual or any one institution from becoming too
powerful in this country. That was a reaction against the
parliamentary supremacy that existed many years ago and to this
day in the United Kingdom.
My answer to the question is simple; and that is that, even
if the House were reduced to five Members out of 435, the
checks and balances and the existing law and existing
constitutional provisions would allow the President and the
Senate to be able to run the country until the House was
reconstituted.
The problem that I have in terms of the appointment
amendment--and the amendment, you know, will result in the
appointment of House Members--is that we hear complaints that
an appointed President and an appointed Senate is putting too
much faith in appointed officials who stepped in as a result of
an emergency.
What their amendment will do is have an appointed House as
well. So the entire government would end up being appointed, at
lease temporarily, whereas the legislation that Mr. Dreier and
Ms. Miller and I have envisioned would be tohave elected
Members serve in at least the House of Representatives as quickly as
possible.
The other point that I would like to raise is that the
United Kingdom was under attack by the Nazis during the Second
World War, and the blitz in London lasted for several months.
The House of Commons in the UK is the people's House, just like
the House of Representatives is in the United States, and no
one who has ever served in the House of Commons has been there
other than by direct election of the people.
Now with the bombs raining on London, including a direct
hit in the Commons chamber, fortunately not when the House was
sitting, there was never any move in the United Kingdom to fill
vacancies in the House of Commons by means other than a special
election.
And there that country was under attack. The capital city
and the building that the parliament meets in was actually
being attacked, and they didn't talk about having appointed
representatives in the House of Commons. They said they would
have special elections, and that is what they did.
Mr. Larson. Given your experience----
Mr. Frost. I would only respond to my friend, Mr.
Sensenbrenner, that that was prior to Hiroshima and Nagasaki.
Mr. Larson. Point well made.
Ms. Miller, given your experience as Secretary of State, is
the 21-day proposal--and I note that Mr. Sensenbrenner also
noted in his testimony that he was willing to look at expanding
that time frame. What is a realistic time frame to constitute
an election that doesn't, as was pointed out by Mr. Frost and
Mr. Baird, jeopardize the validity of that vote or the
constitutionality of new Members?
Mrs. Miller. Well, I have a little trouble with the 21 days
myself, having run elections. So I was pleased to hear that we
have a little flexibility on that.
I do think, though, for instance, if you think about a
State like Minnesota--I think you are going to be hearing from
the Secretary in Minnesota in the next panel--I believe that
special elections in Minnesota are now run in 33 days or
something. So you wouldn't want to have a situation where you
are mandating States to go further than what they currently can
to run a special election. I think you have to take a look at
all of that.
But when we think about the possibility of not having a
functioning House for some period of time and what it means, if
you think about 33 days or 35 days or what have you, I mean, we
just had an August recess where we were gone for 5 weeks here
in the House. I think most people would think in the case of a
catastrophic attack the most important thing would be to have
the ability to commit the troops. Well, with the War Powers
Act, of course the President already has that authority.
Mr. Larson. One of the most memorable events of September
the 11th was the fact that the Congress, both the House and
Senate, were able to convene that evening. The point that Mr.
Frost and Mr. Baird continue to make is the immediacy of the
crisis. I can't tell you how many number of people have said to
me that the most reassuring thing of that day was to see those
Members standing together.
Fortunately, as has been pointed out by everyone, we were
spared because of the bravery of people. It seems that at the
heart of this argument is the need to immediately address a
crisis, as in contrast to making sure that we retain the purity
and sanity of the people's House being elected directly by
people.
Is there any compromise--and certainly the Chairman of the
Judiciary Committee is an artful master in this area. Is there
any compromise between these positions, Mr. Sensenbrenner?
Mr. Sensenbrenner. I can't really see there being a
compromise. Because when this debate started out there were two
proposals that were on the table. One was to allow the
gubernatorial appointment of representatives and the other was
to allow Members to designate temporary successors.
Now, of the five representatives that you have on your
panel here, Mr. Dreier is absent, four of the five of us
aremembers of the opposite political party than our governors. And
having the gubernatorial appointment in every case except Mr. Baird's
would undoubtedly result in a member of the opposite party, the party
that lost the election in the district, ending up being the temporary
representative. That is not democracy.
The other proposal would be to allow Members to appoint
temporary representatives, and it would be kind of a Member
designating his temporary successor.
When I first started out in the political business as a
staffer in the Wisconsin legislature during my college years,
that was when there was a great fear of a massive Soviet atomic
attack, and there was a blue ribbon commission that made that
suggestion as an amendment to the Wisconsin Constitution. That
proposal, because of public opposition to members designating
their own successor in the event of an attack, ended up sinking
quicker than the Titanic did, never to come back.
I think that if you are looking for legitimacy in a
reconstituted House of Representatives following a disaster,
having a House of Representatives be hand-picked successors of
a deceased or incapacitated incumbent Congressman would end up
being much more illegitimate than running through an election
process.
Now, no election is perfect. We all know that. But it seems
to me that an imperfect election is better than either of these
methods of appointment.
Mr. Frost. If I can respond to two points that were made by
different members of the panel.
First, as to the length of time for a special election--and
I know that the laws differ from State to State. The law of my
State requires a runoff in a special election if no one
receives at least 50.1 percent, more than 50 percent of the
vote, which could take--extend the period of time for filling
the seat.
Prior to 1957, Texas did not require runoffs in special
elections, and Ralph Yarbrough was elected to the United States
Senate. A liberal Democrat was elected to the United States
Senate with a plurality of the vote. So the Texas legislature
changed the law to make sure that that could never happen again
in a special election.
So we now require runoffs; and runoffs are of varying
periods of time, 2 weeks up to a month, depending upon the
State law. I don't know whether all States require runoffs in
specials, but my state does.
Secondly, as to the point by Mr. Sensenbrenner, even though
the Founding Fathers did not incorporate political parties, the
document, into the Constitution, there is nothing that would
prohibit us from specifying in a constitutional amendment, if
we delegated to the Governor the right to appoint, that the
Governor be required to appoint a replacement from the same
political party as the deceased Member.
Mr. Larson. Mr. Baird.
Mr. Baird. Let me address two points, if I may.
First of all, I think if you were to ask the voters--and
ultimately this would have to go to the voters if we were to
pass it through this body. You have a choice in a time of
national crisis. You can either have no one from your district
at all representing you in the Congress and give those
authorities completely over to a member of the Cabinet who you
don't know at all and who was never elected, or you can vest
the person who you did vote for, who was duly elected, with the
authority of nominating someone to represent your district as
Article 1 provides for and as the great compromise provided for
during a time of grave national crisis.
Your choice is nobody at all, checking someone who you
never elected, or someone who is at least connected to you by
virtue of having been nominated by the person you did elect for
a temporary period; and, following that, you will have the
opportunity to vote. We are all in agreement that expedited
special elections make sense.
But let me underscore the merits of an appointment process.
One of the challenges you face is trying to set thethreshold,
which we alluded to already. The other challenge is, what is the time
frame? The time frame becomes albeit important because you want it to
be prompt, but it is less essential once you fill the seats, if you can
fill the seats with wise and decent people, and if we aren't qualified
to pick wise and decent people to fill our seats then we shouldn't be
here.
But if you fill the seats, then you can take the time for a
truly deliberative election. Then if special circumstances--
anthrax in the mail, a direct secondary hit on a State
capital--if those occur, then you have still got your Congress
functioning. And if it occurs that one State cannot complete
its election as promptly as the other State for whatever
reason, they still have representation in the body. You don't
have some kind of strange misproportionate representation in
the body because one State can't function as quickly as
another. Once you do the appointments, you are in better shape.
Let me finally suggest this. I don't know as well as the
States these gentlemen come from, but I know well the bench
that we have to draw from in Washington State. We have former
U.S. Senator Slade Gordon. We have Representative Al Swift. We
have Sid Morrison. We have Dave Evans. We have existing
governors. We have leaders in both parties who are
distinguished statesmen.
I think it would be profoundly beneficial to the American
people, if days, not months or not many weeks after a crisis,
those people convened, and they could say, those people will do
what is right for this country in this time of crisis and not
just bank it all on the other body or on some Cabinet members
who happened to get lucky or nobody who happened to get lucky
and some general who takes charge.
Mrs. Miller. If I could make one quick comment in regards
to Mr. Larson asking if it would be possible to have a
compromise. I think you asked that in your remembrance of 9/11
and all--the two Houses being on the steps of the Capitol.
We all have personal stories about 9/11. I remember very
vividly that morning we were actually conducting an election in
Detroit. They were having their city elections.
And I happened to be out at a precinct and watched the
first plane go into the first tower and you were trying to get
your mind around what you were seeing there, and went to the
next precinct and saw the second plane come in. And of course I
called our mayor in Detroit. We were wondering what was going
on. They were closing the bridge to Canada. New York had
canceled their elections for very obvious reasons, and we
wondered for a moment whether or not we ought to cancel ours as
well. But we thought about that for about a second-and-a-half
because we very quickly recognized that continuing with our
democratic process is really what sets us apart from the rest
of the world and our Constitution does as well.
That is why I believe that whatever we agree to here needs
to be within the confines of our Founding Fathers and our
constitutional mandates and not amending the Constitution or
the terrorists will be winning in a small way.
Mr. Larson. Kudos to you, by the way, and I was unaware of
that and I am glad to learn that here this afternoon.
The Chairman. On a note, you know that day, 9/11, it was
truly a citizens Congress because everybody was on the street
corners in small groups of three, four, or five, depending
onwhich street you were on, and there was a huge sense of frustration,
as you know, wondering where to go to and how do you reconstitute and
everybody was alive. These are discussions that have merit obviously
because if people had been killed that day in the Congress we would
have had even more of an idea of how do you reconstitute the Congress,
but everybody had that huge frustration of not being able to have a
Congress at that point in time.
Mr. Ehlers.
Mr. Ehlers. I have no questions.
Mr. Baird. May I underscore one point of what you just
said? On September 11, after the first plane hit the first
tower, there were people in the second tower who were told
wait, stay put and they did, and then the second plane came and
killed them. It has been 2 years since that day and this body
has not substantively acted. If it happens tomorrow that we are
hit hard, we have left this country in a terrible mess. We have
got to do something substantive so that if it happens something
is out there for the legislatures to act on, and we have failed
thus far in that duty.
So I really want to underscore my gratitude for you taking
the leadership on this, because once it happens that lots of us
are killed, the very body that is supposed to solve these
problems has itself been decapitated, and that is not a
situation we want to leave this country in.
Mr. Linder. Brian, in your proposal for having a Member
assign the position to another living political figure, do you
anticipate a time frame before they will have a special
election?
Mr. Baird. Very legitimate question. My hope would be, Mr.
Linder, that that would be expedited, that you would have a
prompt election after that, and I would provide that upon
appointment that person shall serve until such time as a
special election can be held. So I think you would want to have
a special election to replace that person.
Mr. Sensenbrenner. If I may answer that the Commission on
Continuity of Government recommended that the appointed
replacement Members be able to run in a future special election
to be held 120 days after a vacancy. That would mean that the
appointed Member in many States would end up serving longer
than a special election under existing law could be held. In
Minnesota, for example, it is 33 days between the time a
vacancy takes place and the time a special election is held.
And what the Commission recommends is that for almost 3 months
after a Minnesota election can be held under existing State law
an appointed Member would be allowed to sit. I don't think that
is right.
Mr. Frost. And I would ask all of you to think back not
just to what happened on the day of September 11, but what
happened in the week following September 11. We passed
significant pieces of legislation during the next 7 days
dealing with a variety of subjects. And I think that is
extremely important that there be a functioning Congress that
can address the concerns of the public so the public will have
confidence in the continuation of our government. And it wasn't
just standing on the steps of the Capitol that was important,
it was the fact that we came together on a bipartisan basis in
the days immediately following September 11 and started
addressing the problems that were the aftermath of that attack.
And that is really why I got involved in this entire issue, and
I do want to commend Mr. Baird for taking the lead, for being
the first Member of Congress to speak out on this subject and
attempt to deal with this.
We have an obligation to make sure that the House of
Representatives can continue to function, and you can't just
say, well, the Senate and the President can take care of that.
We can't pass appropriations bills with only one House. Nothing
that we do on a day-by-day basis can be done by only one House
in the government, even assuming the Senate was reconstituted
immediately by gubernatorial appointment.
So I underscore the immediacy of this, the significance of
this, and urge all parties concerned to try and figure out a
real solution. Thank you.
The Chairman. Chairman Sensenbrenner, I want to ask youa
question. How do you deal with incapacitation?
Mr. Sensenbrenner. We leave it up to the States to define
incapacitation. So the legislation is silent. Many Members can
sign durable powers of attorney pursuant to state law should
they undergo surgery or lapse into a coma after the surgery.
The durable power of attorney will allow the person to appoint
an attorney, in fact to resign for the Member of the House of
Representatives, and this happened in my State back in the
60's, when a State Senator ended up being incapacitated and the
State law was changed to allow that.
The Chairman. Anybody have any thoughts how you deal with
incapacitation?
Mr. Frost. It is an enormous problem because as some of us
remember when Gladys Noon Spellman suffered a stroke she was
incapacitated for some period of time, and in fact the House
had to ultimately declare her seat vacant, and we had a special
election when our colleague Steny Hoyer was elected. But it
took an action of the House at that point because apparently
there was nothing in place in Maryland law or even in any other
provision of Federal law that permitted the incapacity to be
determined other than by a vote of the House. It is a
significant problem that needs to be addressed. I don't have an
immediate answer for it.
Mr. Baird. The proposed amendment I have offered would
empower the House to provide procedures by which incapacity
would be determined. Another issue I have addressed in that
proposed amendment is that if a person were to regain capacity
they could resume their post if they regain their capacity
prior to the special election being held, which I think is
reasonable. If you are trying to get the House back up quickly
and someone is severely incapacitated for a brief period of
time, a burn unit, et cetera, when they are able to return to
the House, if a special election wasn't held they could come
back, and I think that is desirable. I certainly would approve
of it.
The Chairman. One last question I have. This naming of the
successor in your proposal, is that mandated to be secret or
can the Member tell?
Mr. Baird. It is a great question. My own belief is the
proposal is moot on that. My own belief is it is desirable that
it be secret both for security reasons, for political reasons.
You don't want people currying favor. First of all, you don't
want to say, if you will sign up on my ticket as my successor
if I die, I don't think you want to do that. By nominating a
list of several people, you reduce the possibility of gaming
it. You provide for a security element, and I think you would
want initially, frankly, to establish a very rigorous tradition
that this is kept strictly confidential.
The Chairman. Then it is made public?
Mr. Baird. It would be made public at such time--what I
would propose is we nominate successors and the governors
choose from that list. So presumably you obviate party
manipulation because we are probably going to pick people from
our own party. My original proposal to the Governors, which I
think the chairman is right to criticize that proposal, it was
made in the few weeks following the attack and we didn't know
frankly where Pakistan was going to come out on that side of
the equation. They had nuclear weapons. What I thought we
needed to do is get something out there so if we were hit hard
there would be some recourse. On reflection, I think the
Governors already have the chance to appoint Senators. Better
to let us nominate our successors temporarily and follow that
by special election.
The Chairman. You get a bunch of constant press questions
of who is in that envelope every year.
Mr. Baird. There are powerful traditions in our country and
I think you could certainly say for security reasons--we don't
divulge, for example, the budget of the intelligence
appropriations bill. There are a lot of things we can do with
tradition and I think we would respect that.
Mr. Sensenbrenner. May I make one further point, and that
is the opponents of the bill that Mr. Dreier and Mrs. Miller
and I have introduced seem to think that when a disaster
happens we can wave a magic wand and all of a suddenthere will
be new Members of the House appear. All of us who were here on 9/11
will recall that the airspace was closed down. It was impossible to get
out of town or get into town during the 4 or 5 days after 9/11. Many of
the Members actually had to resort to driving rather than flying. I
guess about the limit of where somebody can get to Washington quickly
by road if public transportation and the airways are closed down and
the highways are still opened up is about where I live in the Midwest,
which is 15 hours away. And if we had to reconstitute a House with
appointees during this period of time, I don't think anybody from the
West would be able to get here.
Mr. Baird. This is a rather specious argument, to be
perfectly frank. You are not going to get here. This place will
be gone. This inability to comprehend the power of a nuclear
weapon is problematic for us here. An analogy is to London and
the Blitz. The sixth sense that we are going to come back to
this very building and meet are really not adequate to the
threat we face. The simple fact is if you identify the people
you also want--but you don't have to do this constitutionally.
Frankly, constitutionally there are issues about whether or not
you can convene in another place without permission of the
other body. We need to address that. We have to have people to
go there and where they go is of somewhat less importance.
The Chairman. That issue ties a little bit into Congressman
Langevin's issue which we approved out of this committee last
session, to explore that. There was a study, about half a
million dollars, to explore voting by electronic means,
assuming that for example the terrorists bomb 10 cities, which
is projected they possibly could have if they had their way.
You had mass confusion and, you know, traffic wouldn't move and
you couldn't take an airplane or train and the building is
wiped out, how do you vote, if you need to vote if you are in
Europe, because all the talk was just about if something
happened while we were here. We might be spread out over the
world or the country during a recess and that has nothing to do
with this bill. But it has to do with the subject of being able
to vote.
Mr. Ehlers.
Mr. Ehlers. Thank you, Mr. Chairman. I just wanted to try
to clarify something. Mr. Sensenbrenner, you talked about and I
guess the Commission referred to a case where more than 100
Members have been killed or incapacitated. That obviously is a
serious problem but it is not crucial to the future of the
Nation. They could be replaced in due course with special
elections under current law. Did you consider other gradations?
You mentioned you picked 100 as somewhat arbitrary between 1
and 435. What Mr. Baird seems to be talking about is the case
where the entire campus is gone, most of the Members have been
killed and so forth, which is quite a different situation than
losing 100 or 150 Members. Were there any gradations considered
in the possibilities?
Mr. Sensenbrenner. Well, the answer is that we have to pick
a number between 1 and 435. With approximately a quarter or
more Members of the House of Representatives gone, we figured
that that would be a sufficient urgency to have the expedited
special election process that is contained in this bill. But
again the bottom line is that I think you get more legitimacy
in having the House of Representatives constituted by election
even though it is a wartime election at a time of devastation
than it is to have an appointed President and appointed Senate
and appointed House of Representatives. You know, believe me,
the American people proved on 9/11 that they will come
together, that if there was an even greater catastrophe they
will come together even quicker to work to make sure that self-
government, which has been the hallmark of this country since
the American Revolution, will be preserved.
Mr. Ehlers. All right. I appreciate that. It seems to me
that there is a major distinction here between 100 or if, for
example, we were in the process of voting in the House and a
nuclear weapon would hit we would lose on average about 425 to
430 members and in fact the entire House is totally
disseminated at that point, and I can understand the
argumentfor rapid action if that happens. I don't think there is any
problem with either the expedited special election or perhaps even
normal special elections in the case where it is 100 or 150. But I
understand you did not consider the total catastrophe case.
Mr. Sensenbrenner. I believe the 100 number includes the
total catastrophe case.
Mr. Ehlers. You would not make any differentiation then?
Mr. Sensenbrenner. No. The thing, Mr. Ehlers, that I think
is important, is that if a significant number of Members of the
House are killed then it is important to fill those seats by
election as quickly as possible.
Mr. Ehlers. I am not even sure we need the expedited
elections until you get a sizable number, but thank you very
much for clarifying that. I appreciate that.
The Chairman. Mr. Larson.
Mr. Larson. Thank you. I just have one follow-up question.
And clearly since I have been a Member of the United States
Congress, there have been at least a couple of occasions where
more than 100 people haven't been present when we voted. I want
to get back to this issue of time and the crisis around time.
And the reason I asked before about compromise is that when you
sit and listen to the two proponents, both proponents of the
bill who seek the sacred nature between the people and their
elected officials in making sure that Congress hangs on to that
cherished manner in which we select people, and then to the
opponents who are concerned overall about protecting the
cherished nature of the republic by making sure that it is
constituted immediately in order to carry out these functions,
the reason I asked if there is a compromise is because it seems
to me--let us say, for example, if a constitutional amendment
were proposed and adopted it would take 2 years for that to
take effect, I believe, or approximately. By the same token,
there is valid and legitimate concern that an election process,
however expedited, may not be, as Mr. Sensenbrenner has pointed
out, the most perfect instrument as well. In many respects,
don't you need both? And inasmuch as the proponents of a
constitutional amendment still adhere to elections where people
would be--the Congress would be reconstituted but provide the
time for it to take place in an orderly fashion. And yet
arguably, given the state of affairs we are operating in today,
that a calamity could strike any time and a constitutional
amendment would not have been ratified by the number of States.
So my question still is, is there a compromise or,
minimally, we are on the House Administration Committee because
of our cognizance over elections, would the Judiciary Committee
entertain discussions of this issue of a constitutional
amendment?
Mr. Sensenbrenner. Mr. Larson, the Judiciary Subcommittee
on the Constitution has already had a hearing on the issue of a
constitutional amendment. You know, whether or not there can be
a compromise, this is going to be very difficult to compromise
on because you are either for an elected House and maintaining
the House of Representatives as the Peoples' House or you want
to have appointed successors. And once you get to the issue of
appointed successors, then you start arguing over how the
successors would be appointed. And the Continuity in Government
Commission, you know, basically drafted their amendment in such
a broad manner that this will end up being a question of debate
in the Congress. And I would guess it would be a rather intense
debate between whether there should be a gubernatorial
appointment or whether there should be a deceased or
incapacitated Member designation.
I can say that from my own experience in Wisconsin 40 years
ago, that the whole business of Members designating their
temporary successors in that case in the Wisconsin legislature
unleashed a firestorm of public opposition, and as a result the
matter was quickly dropped and never has returned. And with
gubernatorial appointments, at least the four of us who are
here that represent States where the Governor is of an
opposition party, I don't want my Democratic Governor
appointing a Democrat as a successor. I am sure Mr.Frost
doesn't want his Republican Governor appointing a Republican as a
successor. And in those States where Senate appointments were
restricted to the same party, I remember when Senator Neuberger of
Oregon, a Democrat, died in the 60's, Republican Governor Mark Hatfield
appointed a Democrat in his upper 80's as the interim successor because
he was required to appoint a Democrat, and having a man that was
arguably in his dotage being one of the two United States Senators
certainly did not serve the best interest of that State.
Mr. Larson. Mr. Baird.
Mr. Baird. You raised a very good question about the issue
of how long it would take for this to take effect. My
understanding and part of why I emphasize again how important
it is that we act as a body, once an amendment were to pass the
House and Senate, it is then available to be ratified by the
States. And while traditionally it has taken a long time to
actually get amendments fully approved, I think in this
circumstance you could fairly rapidly convene the legislatures.
First of all, I think it is in the States' best interest to
have a mechanism by which they have representation in the House
of Representatives, so they have a self-incentive to do that if
it is a sound proposal. If we were to pass the resolution, it
is then available for ratification. And if we were to be wiped
out next week, all the States could convene their legislatures
and ratify and we could get a three-quarters ratification
promptly and it could become law and you could conceivably
within a week have nominees, assuming we were bright enough to
create a list.
Mr. Larson. Conceivably if Mr. Sensenbrenner's bill was in
effect and concurrent with an ongoing constitutional amendment,
though, wouldn't it be more plausible that immediately his bill
would take effect while the constitutional amendment was
therefore being ratified? Isn't his bill in some respects a
fail-safe while you are waiting to have the States go through
their proper ratification process just like we would want the
appropriate time for an election to take place?
Mr. Baird. Let me reiterate, neither myself, Mr. Frost, the
Continuity Commission has opposed the notion of having
elections. We are in favor of that. We want them, however, to
be genuine elections. And for the reason I articulated earlier
in terms of where the threshold is, what happens if intervening
variables extend your time period? The best bet is to do
something promptly. I see it the reverse. We already have
mechanisms to elect people in special elections. What we do not
have today is a mechanism to replace people in the time of
catastrophic losses of Members. The more urgent matter is to
put that mechanism before the body and give the American people
an opportunity.
Mr. Larson. I agree with you, Mr. Baird. But my point is
this, and while that process is evolving as it has been--the
scenario has been laid out before us, in the event something
has happened, isn't it wise to have Mr. Sensenbrenner's
proposal, an expedited process addressing the number of
concerns that you have, given that the more immediate effect
needs to be addressed as well, but that may take time for us to
get to----
Mr. Baird. Providing we don't pat ourselves on the back and
say we have solved the problem. Providing we don't send a
message to the American people, stay in that second tower,
everything is under control.
Mr. Larson. I am saying concurrently.
Mr. Frost. And let me if I could, I would like to address
one issue raised by Mr. Sensenbrenner. If we did not provide
that the Governor has to appoint a Member of the same party as
the person who was killed and we might for various reasons not
so provide, I would rather my district be represented by a
Republican than to go without representation for 2 or 3 months
in a time of crisis.
Mr. Larson. I found Mr. Sensenbrenner's point engaging, as
well as has been all the conversation, and I mean that
sincerely. I think this is a real legitimate problem that
Congress has got to sink its teeth into. But I could envision
as well where all three aspects took place. I wouldlean towards
the legislative body. After all, we were a Continental Congress first
appointed by our legislative bodies to assemble and then appointed by
legislative bodies to form the Constitutional Convention. But there is
a question that has to be raised and Mr. Frost raised earlier about a
simultaneous hit on legislatures or the inability for the legislature
to convene or different Houses that are unable to be constituted or
come to grips. Say it happened to be in, we will say, Texas or
California, but then if there was a specific time limit or trigger
mechanism where the Governor would then come into play or providing for
opportunities for that appointment during that process, you would have
gone through a thoughtful process where you are considering all of
these basic alternatives and not ruling out one or the other, but
adhering to a process that in fact we adhered to at the very start of
the formation of this Nation.
The Chairman. Another question on incapacitation, just to
clarify, Chairman Sensenbrenner or anybody else who would like
to comment, but in your bill does the State declare
incapacitation? Is that what you said, the State declares
incapacitation.
Mr. Sensenbrenner. Mr. Chairman, my bill is silent on the
question of incapacitation and State law is the governing law
on incapacitation. And most States have amended their law to
allow anybody to sign a durable power of attorney. A Member of
Congress signing such a durable power of attorney would appoint
the attorney; in fact, make decisions which would include a
potential resignation.
The Chairman. A State would declare incapacitation. Who
vacates the seat though? The State doesn't vacate the seat.
Congress would have to vacate.
Mr. Sensenbrenner. With a durable power of attorney, in
fact, that was appointed by the Member, the State would have
the power to resign the Member's seat and, you know, that would
act as a vacancy.
The Chairman. It would have a bit of a strange twist in the
sense that the House vacates House seats now.
Mr. Sensenbrenner. In the Gladys Noon Spellman case, she
had a stroke 2 days before the election and fell into a coma
and was reelected. She was never sworn in at the beginning of
that Congress, and the House passed a resolution declaring the
seat vacant I believe 45 days after she failed to appear to
take the oath of office. And that resolution was placed before
the House after extensive consultations with both
Representative Spellman's family as well as her physician.
The Chairman. And your bill, doesn't the Speaker also
announce vacant seats?
Mr. Sensenbrenner. The Speaker can announce a vacancy based
upon incapacitation to count toward the 100.
The Chairman. Thank you.
Mr. Larson. What happens if the Speaker has been struck?
Mr. Sensenbrenner. If the Speaker has been struck, the
committee that Mr. Frost and Mr. Dreier and Mr. Cox worked on
amended the House rules. And House Rule I(8)(b)(3) says in the
case of vacancy in the Office of Speaker, the next Member on
the list that has been provided by the Speaker shall act as
Speaker pro tempore until the election of a Speaker or a
Speaker pro tempore. Pending such election, the Member acting
as Speaker pro tempore may exercise such authority of the
Office of Speaker as may be necessary and appropriate to that
end, and that would include making the determination that 100
seats would be vacant.
Mr. Larson. That is very logical and I applaud them. Does
that take into consideration a quorum that would be assembled?
Mr. Sensenbrenner. The quorum has already been defined as a
majority of the Members duly sworn, seated and living.
Mr. Frost. That is the clear precedent and that is the
dilemma that we face, because under the clear precedent a
quorum could be a very, very small number. And my concern, as I
have expressed earlier as well as others, would be the
confidence or lack of confidence that the public would have in
a House being convened with a very small number of people.
The Chairman. Any further questions? I surely want tothank
the panel for your time.
Mr. Larson. Excellent.
The Chairman. Worthwhile and fascinating panel. Thank you,
and we will move on to the second panel. I want to thank the
panel and thank you for your patience. I want to introduce the
panel. Joining us is the Honorable Mary Kiffmeyer, the
Secretary of State from Minnesota and the current President of
National Association of Secretaries of State. We surely do
appreciate your work, Secretaries of State Association, for the
great work on the Help America Vote Act, by the way, as we have
talked about it with the Congresswoman from Michigan and also
following that I want to thank Doug Lewis, the Executive
Director of Election Center, a national nonprofit organization
serving elections of voter registration, also helped work on
Help America Vote Act. We got Donald Wolfensberger, the
Director of the Congress Project at the Woodrow Wilson
International Center for Scholars, and he is no stranger to the
U.S. House. And also Mr. Thomas Mann, the W. Averell Harriman
Chair and Senior Fellow in Governance Studies at the Brookings
Institution and a senior counselor for the Continuity of
Government Commission. And Dr. Norman Ornstein, Resident
Scholar at the American Enterprise Institute and also senior
counselor for the Continuity of Government Commission.
Congressman Dreier wanted me to ask the last two of you
which one wanted to be played by Woody Allen and which one by
Don Knotts.
We appreciate your time being here on an important subject,
and we will begin with testimony from the Honorable Secretary
of State Mary Kiffmeyer.
STATEMENTS OF THE HON. MARY KIFFMEYER, THE SECRETARY OF STATE
FOR MINNESOTA; DOUG LEWIS, EXECUTIVE DIRECTOR, ELECTION CENTER;
DONALD WOLFENSBERGER, DIRECTOR, CONGRESS PROJECT, WOODROW
WILSON INTERNATIONAL CENTER FOR SCHOLARS; THOMAS MANN, W.
AVERELL HARRIMAN CHAIR AND SENIOR FELLOW IN GOVERNANCE STUDIES,
BROOKINGS INSTITUTION; AND NORMAN ORNSTEIN, RESIDENT SCHOLAR,
AMERICAN ENTERPRISE INSTITUTE
STATEMENT OF THE HON. MARY KIFFMEYER
Ms. Kiffmeyer. Thank you very much, Mr. Chairman, Mr.
Larson, and members of the committee. Thank you for allowing me
the opportunity to provide insight for this hearing about how
Congress would fill vacancies in the House of Representatives
if a national disaster were to take place.
On the morning of Friday, October 25, 2002, the State of
Minnesota and the Nation lost U.S. Senator Paul Wellstone to a
plane crash. The State was in mourning but quickly had to look
forward to the future of the Senate seat, the State and the
country. Election Day was less than 2 weeks away. The day of
Senator Wellstone's death was full of anxiety for Minnesotans,
questions abounded. Would the election proceed, would there be
a replacement for Senator Wellstone on theballot? Would
absentee voters who already cast their ballots be able to change their
votes? National media descended on Minnesota seemingly to wait for our
election system to fail. It did not.
Minnesota Attorney General Mike Hatch and I worked through
the night and weekend to implement rarely used election
provisions and to inform voters. In those 10 days preceding
Election Day a replacement Democratic candidate was found, a
supplemental ballot was produced specifically for the U.S.
Senate race, replacement absentee ballots were made available
and voters were informed of the special accommodations to
expect at the polling places. The important thing was that we
had provisions to deal with this situation.
On Election Day, balloting went off as usual. Because our
modern ballot scanning equipment could not be reprogrammed in
time to process the supplemental U.S. Senate ballot, we relied
on the old-fashioned but nevertheless functional method of
counting ballots by hand. The delay in the election results
caused by this was just a few hours. I think Minnesotans agreed
that the speed in counting was not an issue; accuracy was. One
national news show had called to reserve some time in my
schedule to interview me at my office the day after the
election, but only if there were problems. I was there but they
didn't need to show up.
One of Senator Wellstone's political supporters wrote
afterwards that our efforts ensured the people a just outcome.
There is no such thing as a perfect election, even in the
best of circumstances. Certainly in 2002 we faced extraordinary
challenges in Minnesota. We were concerned about voters
understanding the process and we were concerned about absentee
voters who had a very short time to receive and submit their
ballots. Still, I think the election was conducted with the
highest degree of professionalism possible under the less than
perfect circumstances. The thousands of election judges across
our State made it possible.
The four pillars of voter rights, accuracy, access, privacy
and integrity, need to be strong and in balance in order for
the election system to be as good as it can be. These pillars
can be maintained even in a short time frame and I think we
showed that in Minnesota in 2002.
In the end, Minnesota had the highest voter turnout in the
Nation in 2002 and the highest in our own State in a
nonpresidential year since 1954. Most importantly, we elected a
new U.S. Senator and a representative of the people was in
place to tend to our State's business in Washington.
Based on last year's experience, I am confident that in
Minnesota we could conduct expedited special elections within
the proposed 21-day period in the direct aftermath of a
catastrophic terrorist attack on Congress. Minnesota's current
special election procedure is very close to this proposed
timetable, calling for a special election to take place within
28 days after the Governor orders it, and the order must come
within 5 days after the vacancy occurs. Moreover, the proposed
21-day period is significantly longer than the period in which
we conducted the 2002 U.S. Senate election in Minnesota.
To be sure, though, our experience in Minnesota does not
exactly mirror the situation that would be created by a
national disaster such as you are seeking to address here. We
knew that an election was approaching, for example, so that
poll workers had been enlisted to work on the date when the
expedited U.S. Senate election was to take place. Voters
already were expecting to go to the polls and were preparing to
vote. The political parties already had their ``get out the
vote'' operations in place and were engaged in the usual late
campaign strategies.
Nevertheless, from our experience in Minnesota, I would
suggest there are four basic practical issues to consider if
you hold an election in a short time frame: Having laws in
place to deal with these issues, informing the public,
informing election officials, and informing candidates and
political parties. We were thankful in Minnesota we had laws to
deal with the situation we faced last fall. Our lawsclearly
delineated what was to take place so that stakeholders could have
confidence in all communications that flowed from the law and our
implementation of it.
From the perspective of Minnesota's 2002 U.S. Senate
election, we learned that it was most important to communicate
to the public the aspects of the election that would not
change. It also was important to assure voters that the
election process would be orderly, methodical, and that the
outcome would be fair and accurate. Election information was
most pressing for people who had to vote by absentee ballot. A
short election time frame is not user friendly for absentee
voters, and Minnesota's law made it even less so.
We learned that with adequate information and ongoing
communications provided to local election officials we could
count on polling place staff to step up their efforts in a time
of need. I am confident that our local election officials would
overcome the challenge of any national crisis.
I would suggest that any specifications you make regarding
an abbreviated election time frame should be communicated
clearly to the political parties. In Minnesota, the Democratic
Party's process for finding a replacement candidate on short
notice was found to be rather inadequate for allowing as full a
campaign as might have been desired by the voters. Whatever the
machinations the parties might use, a primary or other process,
to name candidates in an expedited election process, they
should be made fully aware of their responsibility to make
their party provisions compatible with the provisions you set
forth here.
I would suggest that the Federal continuity law should be
similar to Minnesota's law specifying who decides when the
process begins, who initiates the process and when the 21-day
timetable begins. I would also suggest that you address the
absentee voter issue, providing guidance ahead of time so that
whatever you decide everyone involved would know what to expect
and know that they must operate within the parameters you set
forth.
Again I want to underscore that election officials,
political parties and stakeholders would benefit greatly from a
process clearly delineated in the law and voters could be sure
that their rights are meticulously upheld should it be
necessary to implement it.
Elections are the cornerstone of our republic, and I
believe that Americans' right to vote for their representation
is of the utmost importance. Especially in a time of crisis,
Americans should know that they can turn to the fundamental
rights guaranteed in the U.S. Constitution for strength,
justice and continuity.
Thank you again for this opportunity to address you today.
I commend you for having the foresight to deal with this issue.
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[GRAPHIC] [TIFF OMITTED] T0083A.056
The Chairman. Thank you for your testimony.
Dr. Ornstein.
STATEMENT OF NORMAN ORNSTEIN
Mr. Ornstein. Thank you very much, Mr. Chairman, and thanks
to you and this committee for grappling with this issue earlier
than almost anybody else, as you did with your early hearing on
the questions of an E Congress and also relating to some of
these other issues. In the first 2 years just about after
September 11, we had, really, your hearing and one in the
Judiciary Committee where it was made clear early on that that
was it, there was going to be one hearing and then they would
close the door on consideration of any of these other issues.
Two years later this is one glaring area that we have not
adequately addressed. This committee has done its part, and I
am glad that you are doing more.
I would like to emphasize just a few things in my time and
some of them related to the testimony that you had on the first
panel and your questions as well, Mr. Chairman.
The first and most significant point is this: As Mr.
Sensenbrenner himself stated flatly, his legislation does
nothing to deal with the problem of incapacitation. He would
rely on State laws involving making seats vacant.
Let me turn to a real life scenario here. You will recall,
no doubt extremely well, when the House with many Members in a
near panic got out of Washington when there was a fear that the
anthrax attack that had hit the other side of the Capitol might
be moving over here. What we know in this post-9/11 world is
that the danger of widespread incapacitation may be greater
than the danger of widespread death, although they are both
there. But we are talking about incapacitation in this case
that might involve large numbers of Members in burn units for 2
months, 3 months, 4 months, 6 months or, in the case of an
anthrax attack, sarin gas attack or maybe a quarantine because
of smallpox, Members being out of pocket for weeks or months at
a time. Are we going to say to those people who are victims of
a terrorist attack, you lose your seats, you can't come back,
somebody else has been elected in your stead? That is not an
adequate answer. And the glaring problem of this bill beyond
the specifics of the mechanics that I will get to and my
colleagues will get to in a minute is that this does nothing to
address what might be the largest problem.
We can argue about what is under the Constitution a quorum
of the Congress. I and many of my colleagues are skeptical of
the notion given the plain language of the Constitution that a
quorum is half the Members, that the parliamentary
interpretation that it is half of those who are sworn and
living is adequate or not. But if you have more than half the
Members in intensive care units for a couple of months, you
can't have a quorum even under that interpretation. So that
must be dealt with, I believe. And the only way to deal with it
is through a process of interim emergency appointments.
One other point, Mr. Sensenbrenner said that the Continuity
of Government Commission had said that elections should be held
in 120 days and, in effect, that if you had appointments and
had elections before that time, the people who were elected
wouldn't get to serve until that point. That is a misreading of
the Commission report. The Commission believed and we believe
that a 21-day period, even a 2-month period, and this was true
of the working group as well, as they look at this in detail,
one-size-fits-all for the States is simply not practical. Not
all States are like Minnesota. I applaud Secretary of State
Kiffmeyer for what she did in Minnesota. Of course it is not as
difficult if you have an election already scheduled 10 days or
3 weeks afterwards.
And we now have, by the way, a living example. We don't
have to look any further than California to see what happens
when you have an election that isn't called at a regularly
scheduled time 2 months after candidates have been certified
for the ballot with a long and laborious process of more than a
month before that time, and you can't find an election official
in California who won't tell you that they face a catastrophe
on their hands. It is not enough time. Thereare ballot
companies, and we only have a small number in the country to print
limited ballot stock, have been working night and day just to get the
ballots available. We have seen what happened with challenges in the
courts. We should expedite elections, but our provisions in the
Continuity of Government Commission would have appointments exist only
until under expedited special elections somebody is elected to fill the
post. And our provisions for incapacitation would leave it to the
individual Member who is incapacitated to return the instant that that
individual was ready to return. So the appointments could not be made
in a capricious or political fashion and people couldn't be shut out of
their own offices.
There are ways for us to deal with both of these issues.
These are not mutually exclusive proposals. What Mr. Larson
suggested is absolutely true. We should be able to compromise
on these. We can set a threshold for emergency interim
appointments at a very high level. And frankly I want to set it
at a high level. Appointments to the House should not be
routine things. And as Mr. Ehlers suggested, this is something
that should occur only under the most devastating of
circumstances. Under these conditions we should move to
expedite elections as much as we possibly can. But it is
utterly unrealistic to imagine that more States would be like
Minnesota or that we should mandate for every State same day
voter registration as Minnesota has, something that you
grappled with when you considered voter or election reform or
other provisions for all the other States, that under these
conditions of emergency which might very well hit the States
that any of these things could take place.
Moreover, to suggest that the Speaker will make this
determination when we may not have a Speaker--and I believe, by
the way, that Mr. Sensenbrenner has misread the House rule
which says that a Speaker pro tempore shall exist for the
purposes of electing a new Speaker and be given the powers for
that purpose alone. That is the plain language of the rule.
This is not a Speaker pro tempore who is in a line of
succession appointed who then has the full powers of the
Speaker to act in this fashion.
There are gaps in this legislation that are glaring and
those that you need to address. Please move forward with
expedited elections. Do it in a reasonable time frame. But if
it precludes doing anything about incapacitation or having no
House for months at a time, then we are failing in our
responsibilities to the American people.
Thank you.
[The statement of Mr. Ornstein follows:]
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The Chairman. Thank you for your testimony.
Mr. Lewis.
STATEMENT OF DOUG LEWIS
Mr. Lewis. Congressman Ney, I think let me first start off
by saying, one of the things that we learned as you and I and
the others worked on election reform when we were doing this
was that too often our testimonies, our feelings, our wants and
desires in terms of election reform were all trapped by our own
experiences. We tended to think very narrowly as to what
happens in our State or in our locale and then say that that
can translate somehow nationally. One of the things that I have
learned very carefully in this job is that one size doesn't fit
all most of the time. And when we work with these issues, the
things that we are going to look at and talk about on your
behalf and with others is the question can we do it in a very
short time span, and the answer is yes. I mean, let us face it,
humans are going to respond to a crisis. The question you have
to go beyond is should you do it in a very short time span? You
know, that is the real response here. And somewhere in here,
you have got to figure out and I have no ax to grind on any of
this, you pick whatever you want.
What you asked me here to tell you about was whether or not
we can do it safely and securely under what we know to be
American democracy, and the answer is probably not. If you are
going to look at the tradition of the House not wanting to
obviate its own tradition that someone always has to be elected
here, then you also have to look at the tradition of American
elections and what American elections are about. Well, the
genius of American democracy is that we have full faith in the
process. And if we destroy the key elements of the House, do
you then have full faith in the election that results from it?
And that is where you have to come back to and what you look
at.
Our process is complex. It takes time. It is complicated.
It sometimes is very inefficient, but it works and it works
because people fundamentally believe in the way we do things.
And so hopefully any conclusions that you come to, any answers
that you come up with really look at maintaining the public's
ability to have faith in the process.
In other words, do we suspend democratic processes in order
to promote a great democracy? That seems to be an irony that is
almost inconceivable to handle and to work with. We know we
learned some lessons of 9/11 because New York had an election
scheduled that day. New York had to stop their election. And in
order to restart the election at a later time, they first had
to know what resources are available to us. What things work?
There are some answers that were given here even today in the
testimony that make presumptions that may not be true. None of
us probably thought much about the power grid going down until
it went down. If it goes down nationwide, how do we have
electronic voting? How do we do that? How do we vote by the
Internet or any other means in order to make this work?
So there are things here that we have got to look at in
terms of not making assumptions that we are going to have
conditions the way we have always had them. We have to look at
how do we do the process.
Additionally, Congress has to look at not just what it
changes in its own laws, it must say clearly that it is going
to rewrite the laws of States in terms of special elections to
replace these folks because you are going to have to set out
very clear determinations on State rules about registration
that all now are obviated by the Federal need. So you have to
spell that out so judges will interpret it the same way you
intended so we end up with elections that we are able to
conduct. Certainly most of the Nation's elections
administrators when it comes to--push comes to shove is a 45-
day minimum. Whether or not certain--Secretary Kiffmeyer, she
can do it in 33, I think Kentucky told us 35, but everybody
else wants more time than that. Can we compresssome of that
time? Maybe.
The question again gets back into what are you defining as
an election? You have to define that before you define the rest
of these procedures. Once you know that, it seems to us that
every day you can give us beyond 45 helps us have a more valid
election that the public will buy into, live with, understand
and have some appreciation for.
Certainly in the written testimony, which I am not going to
go through all the written testimony, there has to be some
process for candidate qualification. However that is
determined, there has to be a process there that the voters
will believe in and live with. There needs to be some new
considerations for voter registration. Do we do same day
registration or cut off registration? How are we going to do
that? Why are we going to do that? And if you set it for this
principle for doing special elections, understand that if you
all say that can be done for emergency wartime powers, there is
going to be a whole lot of folks saying why don't we do that
nationally in all of our States and national election
processes. Certainly you have to have time for absentee ballots
or just decide we are not going to do absentee ballots. You
have to have time to get those ballots out and time to get the
ballots back and time to count those ballots, and the question
is do we have that?
Certainly Congress needs to think about if it is going to
do all this in a way that we can commandeer within the States
other employees so we are not necessarily having to rely on
volunteers to come to us to be poll workers; so we can
commandeer State, city and county employees to assist us in the
election process and overwrite all the labor laws that prevent
us from doing that. And that is another consideration.
We thought about could we do elections through the U.S.
Postal Service. That presumes A, there is a Postal Service to
work with. And we asked the States of Washington and Oregon to
tell us could they do an election in 21 days by mail so that
the entire Nation may be able to do it by mail. They said no.
In fact, they told us that they would need more time than we
would in terms of in person elections, that they need roughly
54 days in order to make this go in terms of ordering the
ballot paper and setting up the postal operations to make this
work.
Finally, I think one of the things we need to do is to look
also at what you are going to do with judges. You are going to
have to have a setup so that every lawyer who decides to sue
because his or her candidate didn't get their way in this
particular instance--and folks, we all think that is not going
to happen but how many predicted that there were going to be
150 candidates in California for Governor? You are going to
have people who want to be candidates and want to adjudicate
whether or not they are legally entitled to be that candidate.
And so you need to think that through.
I think one final note of caution is if we are looking at a
national disaster, let us not create a second disaster by
forcing an election that cannot happen within the time frame.
Thank you.
[The statement of Mr. Lewis follows:]
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The Chairman. Thank you very much. Next we will hear from
Thomas Mann.
STATEMENT OF THOMAS MANN
Mr. Mann. Thank you very much, Mr. Chairman and Ranking
Member Larson. As someone who has worked with the Commission on
the Continuity of Government over the last year, I recognize
fully the complexity of the problem but also the seriousness of
it, and I have to tell you I have just been very disappointed
that 2 years have passed without a substantial response of what
is a glaring hole in our Constitution. I interpreted from the
first panel that expedited hearings before the House Judiciary
Committee are not very likely.
Mr. Chairman, I ask that my prepared statement as well as
the report of the Commission on the Continuity of Government be
made a part of the record of this hearing.
Mr. Chairman. Without objection.
[The information follows:]
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Mr. Mann. I have made four brief points. Let me say that I,
not surprisingly, associate myself with the comments that Norm
Ornstein and Doug Lewis have made before me.
Simply four points. Number one, in an era of terrorism and
weapons of mass destruction, not an era of Blitzkrieg bombing
in London, the continuity of American constitutional government
cannot be assured. Congress has an institutional responsibility
to act and to act credibly and expeditiously to remedy this
problem.
Number two, H.R. 2844, mandates a procedure for special
elections in extraordinary circumstances that would, in my
view, sacrifice democratic substance for democratic form.
Listen, I take seriously the statements that this is the
people's House and that every person who served as a Member has
been elected. That is a sound principle of republican
government that ought to be a cornerstone of representation in
the House.
That is not the issue here. The issue is how best to
maintain that principle while at the same time acting
responsibly to provide for the continuity of Congress in the
wake of a catastrophic attack, leaving mass vacancies and
severe injuries.
My view is that H.R. 2844 has made the wrong choice in
balancing these interests. They have constructed a 21-day
timetable for special elections that would put an enormous
strain on voters, candidates, and election administrators, in
my view a strain so severe that it is likely to drain this
remedy of any democratic legitimacy.
Your committee, having worked through the Help America Vote
Act, is especially sensitive to the practical problems of
election administration. I won't review those here. Doug has
discussed some of them.
What I would say is that the Federal mandate on State and
local election administrators provided for in H.R. 2844 is
burdensome, expensive, unrealistic, and very likely to fail in
its implementation. But, ironically, the provisions of the bill
place an even more serious burden on the voters than they place
on voters and candidates.
Genuine democratic elections require reasonable
opportunities for potential candidates to seek their party's
nomination, to develop and disseminate their platforms, and for
voters to receive enough information about the competing
candidates to make an informed choice. My view is that the 21-
day timetable, which leaves a bare 7 days for the general
election, makes it verily impossible to satisfy those
requirements.
Mr. Chairman and Mr. Lawson, members of this body should
not delude themselves into thinking that any form of electionis
preferable to temporary emergency appointments in the wake of a
national catastrophe. Countries all over the world have elections.
North Korea, Saddam Hussein's Iraq, the old Soviet Union. And many
others have elections where they even have competing candidates. But
the elections are structured in a way in which it is impossible to have
any real democratic substance. We are a constitutional democracy. We
have requirements about elections and their aftermath that could not be
fully taken into account with this provision for expedited special
elections.
Point number three, let's assume it all worked. Let's say
this bill got every one, all of those vacancies replaced in 21
days. Ironically, even if it worked they would not address the
most serious continuity problems associated with death or
incapacitation of a large number of Members, because, first of
all, as several people have said, including Mr. Baird and Mr.
Frost, the critical functions of Congress in the weeks
following that catastrophe could not be fulfilled, because
there would be no functioning House of Representatives.
To reconstitute the body in a month or 6 weeks doesn't
address that. And, secondly, as Norm discussed, it doesn't deal
at all with the problem of incapacitation. He said it well. I
won't repeat it.
Let me conclude with this point. Mr. Larson said, is there
a compromise? The answer is yes, there is a compromise. But to
have a compromise, it has to have two parts. One, there has to
be a constitutional provision that provides for emergency
temporary appointments, emergency temporary appointments that
can be combined with an effort to improve the special elections
process. That doesn't just mean speeding it up to 21 days. I
think to the contrary, your committee having so much expertise
on elections and the administration of elections will find that
the one size fits all may not be the best way to go here.
The process of improving that special elections process has
begun with the working group. You can contribute to that. But I
beg of you, do not come forward, report out a bill that is a
revision of the one submitted by Chairmen Sensenbrenner and
Dreier alone, without having assurance that a constitutional
amendment is moving along, because what that will effectively
do is take any life out of a genuine solution to a very serious
problem facing the country.
Thank you.
The Chairman. Thank you.
Mr. Wolfensberger.
STATEMENT OF DONALD WOLFENSBERGER
Mr. Wolfensberger. Thank you, Mr. Chairman, members of the
committee. I ask that my prepared statement and the appended
materials be included in the record in full. I will summarize
my statement.
I am grateful for this opportunity today to testify on H.R.
2844, the Continuity of Representation Act of 2003. I strongly
support the rationale behind this bill, which is to provide for
expedited special elections to fill House vacancies in
extraordinary circumstances as an alternative to a
constitutional amendment that allows for the appointment of
temporary Representatives.
In my considered opinion, such a constitutional amendment
would be a dangerous corrosion of the very cornerstone of our
governmental edifice, and that is its dependence on popularly
elected representatives. If you take that away, even for a
brief period, you will seriously undermine the legitimacy and
moral foundation of our representative democracy.
You do not have to be a constitutional scholar or a
political scientist to understand just how central the natureof
this institution is to the strength, endurance and resiliency of our
constitutional framework. You are the first House of the first branch
of our Federal Government. The framers did not put you at that point in
our founding document by accident. You are the only members of this
government who, under any and all circumstances, must be elected
directly by the people.
Even a grade school student learns early on that the moral
underpinning of a democracy, as enunciated in the Declaration
of Independence, is that the government derives its just powers
from the consent of the governed. If you remove that element of
consent, you jeopardize the confidence of the people, and the
justness of governmental decisions and actions.
This is the last thing that you would want to risk at a
time of national crisis and confusion that would trigger an
emergency replacement procedure for House Members.
That is why it is all the more imperative that you
reconstitute the House in a constitutional manner as intended
by the framers, through special elections, and not through a
new constitutional mechanism that completely subverts that
intent.
Turning to the specifics of H.R. 2844, obviously the two
main questions this committee must address are what should the
threshold be of vacancies to trigger expedited special
elections, and what time period should be allowed for those
elections to take place?
The Sensenbrenner-Dreier bill has a loss threshold of more
than 100 Members. I happen to favor a much higher threshold of
a majority of Members, since that is where the quorum
requirements become a real problem, and I think that it should
be very severe for these expedited elections to be imposed.
H.R. 2844's 21-day timetable for special elections is the
greatest point of controversy. I understand that a large number
of State election officials have already weighed in that this
is not a realistic time frame to prepare for an election. While
I am not an elections expert, I believe a 2-month period; that
is, 60 days, is probably more practical and realistic.
Can this Nation survive for 2 months without a full House?
I think it can. President Lincoln did not call Congress into
special session until July 4th of 1861, nearly 3 months after
the Civil War broke out on April the 12th. Congress still
managed to set things right and enact a raft of war legislation
over the ensuring months before the special session adjourned.
The proponents of a constitutional amendment claim that
such an instantly reconstituted House is necessary to do such
things as declare war and to appropriate emergency funds. I
would reply that if the U.S. is attacked and a major part of
the Congress is wiped out in the process, you are already at
war and no declaration is necessary. The founders recognized
the right of the President to act unilaterally in response to a
direct attack on the country without a declaration of war.
As to emergency funding, that can easily be provided by
statute as standby authority for the President in the event
that Congress cannot convene immediately. I notice that the
Commission has recommended this as well. The replenishment of
the House by duly elected representatives of the people, even
if it takes a couple of months, is more important than allowing
laws to be written by temp Reps with no direct authority from
the people.
Finally, let me say a few words about the proposed
constitutional amendment recommended by the Continuity of
Government Commission. The Commission seems to endorse a
concise 36-word amendment found on page 24 of its report that
leaves to Congress the power to regulate by law the filling of
vacancies that may occur in the House and Senate if a
substantial number of Members are killed or incapacitated. Now,
that is very broad authority. I seriously doubt that many
States would ratify such a blank check. It is buying a pig in a
poke. Even if Congress does contemporaneously enact such
legislation at the time that it submits a constitutional
amendment to the States, there is nothing to prevent it oncethe
amendment is ratified from changing the law. In fact, the Commission
intimates such later modifications may be necessary based on experience
with the law.
The Commission favors either allowing Members to designate
in advance who should succeed them, or to permit the Governors
of the States to pick their successors. Under the first option,
Members could designate their spouses, their firstborn, their
nearest living relative, or their biggest campaign contributor
to succeed them.
Under the second option, if State Governors are authorized
to designate successors, there is no guarantee they will be of
the same party or even from the same congressional district. So
the Commission was torn between nepotism and political
cronyism, neither of which undemocratic process is likely to
ease the troubled minds of constituents in times of crisis.
In conclusion, Mr. Chairman, I strongly support the
statutory approach of expedited special elections to deal with
the possible loss of large numbers of Members. The framers gave
Congress the power to regulate such elections by law to
preserve our representative system of government and protect
our rights. It may take a little more time, but getting it
right from the start is more important than providing
instantaneous continuity from temp Reps who would lack both
authority from and accountability to the people.
Thank you.
[The statement of Mr. Wolfensberger follows:]
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The Chairman. Thank you. You have been a fascinating panel.
And in my mind, this is going to be three-fold. And everybody
has had a lot of good points. Something where you have to have
your election as quick as you can, but you have to make sure
that the election is not going to cause arguments for the next
2 years.
And, you know, with the Help America Vote Act, and there
are many people in this room, and I see some staff from the
Senate, Kenny and Paul and everybody that was involved, Steny
Hoyer's people, everybody.
And we sat down with Senator Dodd, and I mean literally
thought of every single scenario, to the point where you know,
you think of a scenario and think of one more. We did that on
the Help America Vote Act, including if the electricity goes
out, we have got batteries on those computers. So we thought
that one out, too.
We thought about the disenfranchisement issue and
provisional--how you lock it in, and where you put the signs
up. As you know, we just tried to think of every scenario that
could go wrong. They are elections and they are critical.
This whole scenario is the same, and more in the sense that
you have got to involve the election process. Is 45 days too
long? Is 21 too short? And on top of it, I still want to go
back to Congressman Langevin's E-Congress, because people have
criticized that. I was told that what we should have, in case
of a catastrophic incident, we should have three to four
temporary U.S. House sites, three, maybe four.
Now, the problem you have got is if there is massive
bombing here and there is spot bombing across the United
States, you literally can't get anywhere. You have to have the
availability to have 435 helicopters or 200 helicopters to be
going and getting people. You would have to have a massive
constant standby deployment of aircraft.
And that is why I think under only the rarest of
circumstances the E-Congress is a great idea, because we don't
have these incidents while we are here. You can be in Europe.
Members travel a lot during their recess back in their
districts. And if something goes wrong out here, how do you
actually vote to reconstitute the Congress if you can't be
here, or if you have had a gas attack, smallpox, and we have to
get out of Washington. How do we go back--and some people have
died. And how do you revote a new Speaker? And so I think that
is another component that has got to be looked at, in my
opinion, very, very carefully.
One problem is, and 9/11 gave you a little feeling of this,
but there is a point in time, if a lot of people had been
killed here, if that plane had reached the Capitol and a lot of
people were killed, I think you would have, and we didn't have
a system in place, I think you honestly would start to have the
arguments, whether justified or not, that we had gotten as
close as we could to a few people running this country. I mean,
a President and a Vice President and a few Members of the House
and a few Members of the Senate.
And I think that will cause fear, and almost a paranoia of
leaning towards, look, we got close to a dictator of sorts,
because the perception is out there. And if there were massive
bombings and martial law had to be declared or something, then
it goes another step. And I think people would feel there is no
balance out here. At least if you have Members reconstituted in
some amount of time, the Members are going to complain that
somebody has gone too far with this or somebody has made a bad
decision or a cabinet member or the President or another Member
made a bad decision.
So I think that is something we won't know unless it
happens. But I think that is also something that has got to be
looked at. The other question I wanted to ask anybody who would
like to answer it, is back to the incapacitation. There is a
lot of merit to what we are discussing today, and to the bills,
obviously, that are out there.
But incapacitation is one-issue that has got to be thought
very, very carefully out on who makes a determination of who is
incapacitated and how is that carried out. Also, in my mind,
the House still has the ability to vacate. It calls for
declination. So, therefore, there is a mechanism where you
could expel a Member, for criminal purposes. So there has been
a situation I think where the House has been the one to vacate
the seat.
I get a little bit uncomfortable with a State deciding to
vacate a Federal seat, just as we shouldn't turn around and say
to the Secretary of State or Governor, we are going to vacate
those seats as Washington, D.C.
But incapacitation, anybody have any other thoughts on it?
Mr. Ornstein. As I suggested, Mr. Chairman, this is the
most glaring problem with the simple election process. What I
had suggested, and what we have, at least in some of the detail
in our Commission report as one option here, and this is part
of the problem of not only what triggers any of these
mechanisms, but who makes that decision.
One of the problems with this bill, as we have discussed,
is if you have the Speaker as the figure there, or any figure
in Washington, you might lose that person, you would have no
ability to trigger it. Incapacitation, by the way, also affects
the other side of the Capitol. The Senate has an appointment
provision for vacancies.
I am very uncomfortable with the focus on vacating seats
when we might have temporary incapacitation, and I certainly do
not want to take Members who are thrown into intensive care
units or burn units as a consequence of some terrorist attack
and say to them, thank you very much, you lose your seat,
someone else is going to replace you, and you can't come back.
So we are going to have a fog of war here if there is an
attack. You are going to have people missing.
What I suggested is that the Governors, under conditions of
an attack, canvass their State delegations and make a
determination as to whether half or more of the members of the
State delegation are dead or missing or incapacitated. If so,
they sign proclamations to that effect. And when you reach a
threshold number, maybe it is a thrid of the States, maybe it
is half of the States having signed such proclamations, and you
can have them sent to the comptroller general and other
designees, including some who are outside of Washington, then
you trigger this mechanism.
If it turns out that someone is missing for a few days, and
you have made an appointment, then that person pops up, then
all you have to do is simply have a provision in place, as we
have suggested, that that individual simply sign a statement
saying I am ready to serve again and they are back and they
supplant the temporary appointment.
Let me make just one other note here, Mr. Chairman, about
the election process that Doug Lewis has made well at other
points too.
Even if you can do this in 3 weeks or 45 days or 60 days,
you are going to need another period of a week or 10 days to
certify, to deal with provisional ballots. So under the best of
circumstances here, we are talking months. And to some degree,
the solution suggested by my esteemed colleague, Mr.
Wolfensberger, is we have to destroy this institution to save
it. I am not comfortable with the notion that President Lincoln
suspended habeas corpus and the country survived. I don't want
that happening again. I want to do everything that we can to
avoid that. And if it is 28 days or 30 days under these
circumstances or 60 or 70 or 80 days, that is too long when the
American people are going to want a Congress to provide a check
and balance.
The Chairman. One other point also, the big question, and
again this would be a furor. But if the military is out
fighting, as they are now as we speak in Iraq and Afghanistan
and Bosnia and other parts of the world, and there is a
catastrophic event here, would the military get their votes in
to vote for Members of Congress who vote whether they go to war
or not? So can you do that in X amount of days withthe military
voting?
That was, as you know, the Help America Vote Act, that was
a big part of what we looked at, because it was a furor, when
people felt their vote wasn't counted and they were over
fighting for the country. Obviously it made them upset.
Mr. Wolfensberger. I would like to respond on a couple of
points. First of all, the House was not destroyed as a result
of Lincoln suspending habeas corpus. He also spent money that
had not yet been appropriated. As soon as the Congress convened
in that special session, almost 3 months after the fact, the
House not only retroactively ratified what Lincoln had done,
they gave him additional authorities.
Now, does this mean that the Congress rolled over, was
destroyed or whatever? You might recall from your history that
the Congress also set in motion either a select or a joint
committee on the conduct of the war that drove Lincoln up the
wall. So it was not a supine institution by any means.
The House of Representatives was not destroyed. It came
back and it came back strong. And also the union survived. It
is still doing pretty well last I heard.
The second thing I want to mention is on the expulsion of
the incapacitated. That is that you should not look at the
expulsion as only being for punishment of Members, even though
they are tied closely together in that part of the
Constitution.
My search of the precedents indicates that the two-thirds
vote is also used to expel a Member who is incapable of
performing the duties and responsibilities of office. In other
words, it would be very appropriate, if Congress makes a
determination that that person is unable to carry out their
duties for the remainder of that term, for a Congress to take
that vote. But it should be by a two-thirds vote.
I was very upset by the fact that Gladys Spellman was
thrown out of office by a majority vote. Why? Because she
wasn't sworn. She was a Member of Congress under the precedents
of the House. That should have been a two-thirds vote, in my
opinion.
The Chairman. The issue of the way to decide to vacate a
seat. As I understand it, years ago when we didn't have travel
as we do today in the United States, States would get notified
because of the official act of notifying a State about a
vacancy. It had to do, if I recall right, because you couldn't
get to D.C. that fast. So there was this official notification.
But I am not sure that just because of notifications of
vacancies that we should embark on allowing the State to
declare the vacancy. Nobody wants to use the word ``expulsion''
when it comes to incapacitation. But you are right, because
expulsion is not just for criminals.
Mr. Wolfensberger. The House precedents made clear that
either the executive of the State or the House of
Representatives can declare the vacancy. I would not extend
that to incapacity, as Mr. Ornstein's constitutional amendment
would, to allow the Governor to declare somebody incapacitated.
I think that has to be handled much differently, even by a
constitutional amendment. But you are right that it can be
declared by the Governor of the State, or it can be done by the
House. In the case of a Nick Begich and Hale Boggs whose plane
went down in Alaska and they never found it, the Governor of
the State of Louisiana refused to accept the statement of an
official in Alaska that said that they are presumed dead. So in
that case the House of Representatives had to vote to declare
the vacancy because the governor had refused to do so.
Ms. Kiffmeyer. Thank you very much, Mr. Chairman. I think
the issue that I find, there are a number of points that have
been so validly brought up by the members of this panel and the
Congressional members before us. And the thoughtfulness ahead
of time to deal with reasonable scenarios, adjusted to them,
knowing that no matter what time you choose, no matter what
number there will be circumstances placed upon you that no one
can foresee, and you will be faced with the challenge to rise
to the occasion and to dothe best that you can.
You will be commended for the foresight, but everybody will
understand that you could not have known the exact
circumstances. It needs to be said that there should be
reasonable accommodations for every one of these points at
which you will draw the line. And there will be dissatisfaction
to some measure. It will be miserable circumstances that would
trigger this law.
Certainly no doubt that was the case in Minnesota. And the
first response is to deny that it happened. It is the human
condition to say, I wish it hadn't happened. I don't want it to
happen. I don't like that this is happening. Yet the process
and the continuity was of primary importance at that time. We
were grateful for the law, insufficient in many ways as it was
at the time. It was nevertheless a guiding light that was very
important and very valuable to the continuity, to the issues
that were upon us.
I think that is always an important consideration. I know
that every one of these matters are very valid, but that at
some point along the way the decision will have to be made and
a process put in place which is much greater than any one
failure at some point along the line that we may question.
Thank you.
The Chairman. You raise--I think the point you are raising
is the way we have looked at a lot of things. After 9/11, we
had an amazing amount of decisions to make on what we were
going to do with the physical structure of this Capitol. And
you can look at some of the things we did and criticize them.
Some of the things we do are good.
Now, does that mean that we are totally safe right now?
Absolutely not. If somebody wants to shoot something into the
building, things can happen. But you make your best effort to
make sure that--you do the best effort that you know that you
can do, and we have carried through on that. Every week we
reassess, Congressman Larson and our staffs, reassess all types
of security things. Things we can tell you about and some
things we can't. We continue to do that for the physical
structure of the Capitol. This report came out about 9 months
ago, and we need to continue for the human structure of this
Capitol; that is, the men and women that serve here. We need to
continue to debate this. I don't know what is right or
completely wrong, but I think we need to continue on with it.
We do it on the physical structure and security. We need to do
it on how Members are replaced, I believe.
Mr. Lewis. And I think one of the assumptions that you have
to make, and I want to make two points here. One is the first
assumption. Don't always assume that the attack is going to be
from outside. It could very well be from inside, and if there
is a suspension of all of the democratic institutions that
works obviously to the advantage of the person or persons who
are doing the attack from the inside.
Secondly, I think you have got to look at, if you provide
for replacements of Congressional folks, it takes a while to
learn to be a legislator. Administrative people go nuts
initially trying to figure out how the legislative process
works. And it seems to me that you need to think through, how
do you get experienced legislators up here? How do you get
people who don't have to learn their way around how a bill gets
passed and how the Congress itself gets things done?
Somewhere in here you need to think about how does that
succession plan bring people up who can hit the ground running.
The Chairman. Where there is a will there is a way. But you
just raised another thought in my mind. We go through freshman
orientation. We bring everyone in. We pick them up, and bring
them in here, make them sit for 9 days and terrify them with
the fact that they could go to jail, or owe $50,000 bucks out
of their checking account if they make a mistake or if the
staff makes a mistake.
And you bring people out here. And we have talked about the
Members getting killed. What about the staff? And if you had a
loss of the institutional staff, I mean Lord forbid this would
happen, if youdid, you have got these new Members and you would
have to kind of look at kind of suspending some of the ethics rules
probably in the House, because they are going to be doing all kinds of
things not even knowing it.
I mean there is all of that aspect that I think has to be
talked about internally too, because you raised a point.
Mr. Larson. Thank you, Mr. Chairman. And again, thank all
of the esteemed panelists, both for your patience and endurance
here today. I, in keeping with the spirit of Hollywood that Mr.
Dreier evoked earlier, I tend to think of Mr. Ornstein and Mr.
Mann more like Rex Harrison or Russell Crowe, for their
thoughtful and professional deliberation on these matters, and
appreciate both the Continuity of Government Commission's
report and on preserving this great institution of ours.
I have a number of questions. First I wanted to ask, and
again I want to second the kudos of the chairman to Secretary
Kiffmeyer for the extraordinary manner in which you handled
elections after the unfortunate passing of Senator Wellstone.
But in Minnesota and several other States, and this was
noted in the testimony of Mr. Ornstein, a voter can register up
through Election Day and also receive a ballot, which has
apparently in Minnesota worked well.
Our colleague, Representative Sabo, is preparing to
introduce the Same Day Voter Registration Act of 2003. Based on
the Minnesota experience, would you favor introducing that
practice nationwide if we had to have emergency special
elections? And what do you think of the Sabo proposal in
general?
Ms. Kiffmeyer. Well, Mr. Chairman, and Mr. Larson, I think
under extraordinary circumstances there are a number of things
that you would probably put in place in order to do an
expedited election that you would not do routinely. So that may
be a circumstance that you would have to take a look at.
Certainly now with the Help America Vote Act, there are
provisional votes that are a type of recognition that if you
are not on the preregistered list, that you are able to cast a
provisional ballot. So already through the Help America Vote
Act we actually have law in place to deal with such a situation
that could be used in an expedited election.
Mr. Larson. Thank you. Again, I want to thank especially
Mr. Lewis as well for raising several scenarios in your
deliberations. And Mr. Wolfensberger, I guess, is there any
circumstance or any calamity in which you would consider a
constitutional amendment that would reconstitute the House of
Representatives? And the reason I say that, because I am struck
by the fact that at some point, if we go back to the beginning,
the Continental Congress, that at some point legislators have
to be appointed to constitute the formation of government.
And I understand people, and I think even on the
Commission, and again I think it is an outstanding report, went
to great lengths to grapple with this issue of not wanting to
just willy-nilly go forward with a constitutional amendment.
But given the enormity and the potential for a catastrophic
event, the President giving his State of the Union message,
dirty bomb explodes, taking or incapacitating the vast majority
of Members of Congress, the President, judicial branches, where
the issue was raised as well.
That is an extraordinary event that again, doesn't--it
takes place today in real terms, not in the Second World War or
the Civil War as examples were given before, good examples, and
no quibble with those examples. But it seems to me that we must
grapple with this situation. We can't be in denial that this
could absolutely transpire. And what would be wrong with going
forward on two tracks as we look forward to addressing this
issue and having--because there is no guarantee that a
constitutional amendment would be ratified by the States, but
having in true democratic fashion not only this Congress, but
the Nation grapple with this issue?
Mr. Wolfensberger. I think that is an excellent question. I
think the thing that was brought up in today's testimony that
is the most nettlesome, and the best argument for a
constitutional amendment, is that a large number ofMembers
would be incapacitated and you might be in deadlock for a prolonged
period of time before some kind of determination is made that you have
to expel them because they are not gong to recover.
So it seems to me if you had a situation, for instance,
where 100 Members were killed but you had 300 Members
incapacitated, and you could not get yourself a quorum, even if
those 100 Members were replaced by special elections, how do
you get a quorum? And it seems to me that maybe that is the one
instance in which you would have to have temporary replacements
by a constitutional amendment.
So I can understand that situation, putting you in a
deadlock where you really can't act. You would not have 218
sitting Members, even after a special election, unless the
Members that were sitting decided to expel all of those that
were incapacitated. They might recover within a few weeks time
or a few months, time.
So I would concede that that would be one very dire
situation where Congress could be deadlocked for months with a
vast majority of Members just incapacitated.
Mr. Mann. Mr. Larson, I am encouraged by my friend Don
Wolfensberger's statement here that he could imagine a
circumstance; namely, mass incapacitation, in which emergency
temporary replacements would be needed, and of sufficient
importance that the principle of elected House Members could be
amended in that slight way.
What I want to suggest to you is that this principle has
taken on a life that goes well beyond any basis in reality. It
has something to do with the institutional competitiveness
between the House and the Senate. This is a very awkward thing
for me to discuss. But you know, we talk about the other body
and in the House we grouse about the other body and its
institutional frailties and liabilities, and the other body
occasionally makes similar comments about this body.
Some competitiveness is a good thing.
The Chairman. I hate to interrupt you. But when you are in
retirement in your job, you make comments about the other body.
You have nothing to do. They do that.
Mr. Mann. I am afraid in this context it has moved to the
point of hubris. What I want to say is the special character of
this institution, the House of Representatives, does not reside
in the fact that there is no provision for temporary emergency
appointments. It has to do with its size, with the length of
term, with the smaller constituencies than the other body, with
the particular constitutional powers that it was given.
Would anyone claim that the Senate of the United States
lacks legitimacy because of the provision within the 17th
amendment allowing for temporary special appointments? Listen,
the 17th amendment was passed, it is part of the Constitution.
We have direct election to both bodies, both Houses of the
Congress have direct election.
The Senate is different from the House for reasons other
than elections, the direct election. In fact, I would argue
that the electoral process of the Senate and the House have
become more similar over time. Fund-raising has become more
similar. And, therefore, it is more hubris than anything else
to place so much attention on this notion that every Member of
the House has been first elected.
If my friends and colleagues who make this argument would
show equal interest in trying to lend more substance to the
elections to the House, by dealing with the problems of
uncompetitiveness, the fact that 90 percent aren't competitive,
the problems of redistricting, the problems that contribute to
this lack of competition, then I would feel a little more
sympathy.
The second point is elections are not the only feature of
the United States Constitution. Brian Baird sort of said this,
others have said it as well. We have more than just a small
``d'' democracy, we have a small ``r'' republic, and we have a
constitutional system which includes separation of powers. We
mange to balance interests, and it seems to me in that spirit
it is very dangerous to elevate this small provision having to
do with temporary emergency appointments above everything else
that provides the real basis of our durability as a
constitutional democracy.
Thank you.
Mr. Larson. I just wanted to comment on that, because you
raise a very good point. It was going to be one of my follow-up
questions, is that I feel that the House is at a constitutional
disadvantage because of the powers granted in the Constitution
for the Senate to be able to reconstitute almost immediately.
While under the best circumstance, it would be, well, let's
say even if we took 21 days in the process, that is highly
unlikely, and more likely probably about 60 days as people have
indicated, and even then for some States that may not be a
reality. But the idea that the Senate can be reconstituted
immediately, and given the emergency nature of which we would
be operating under, I think would be governing and leaping
almost in Haigian fashion, saying we are in charge here at this
point, given the nature of what has happened and what has
transpired. And whether it be hubris or human nature or the
state of the emergency, for us not to have looked at the
Constitution and recognized that by its very nature there is an
imbalance that has been created here in terms of dealing with
this emergency, then I think that would be wrongheaded on the
part of the Congress.
Mr. Ornstein.
Mr. Ornstein. Thanks, Mr. Larson. Just a couple of points.
One, I want to throw out a couple of figures for you, following
up on what Tom said.
If you look at Senate appointments with individuals who
then run for election in their own right, their success rate is
50 percent. If you look at House elections, reelection rates
are about 98 to 99 percent. One of the worst case scenarios
here for me is that we have elections in 21 days. You have
party bosses slap together candidates, probably it is going to
be the rich and the famous. They come in under the aegis of an
election mandate and then they may be there for decades
thereafter. We will have set the House for a very long period
of time under the worst, most stressful, most distorted set of
conditions. It is another reason to make sure that we have
adequate time here for very full elections.
In our Continuity of Government Commission we had some very
spirited debates about those who might come in under emergency
interim appointments and could then run for election, and we
came to the conclusion that we should leave that. We don't want
to bar people under those conditions from running.
But we were very much cognizant of the fact that coming in
as an appointment, what history suggests is that is not a blank
check that you are going to be there forever, that people under
those conditions, voters under those conditions look, the next
time around, when you will have a substantial period of time
for an election, to make those judgments.
One other point, as we look at our worst case scenarios and
we think about a House that might consist of just a handful of
Members, remember that under the presidential succession
process three Members of the House could constitute a quorum,
choose a Speaker who might then become the President, the
acting President for a period of time, and the worst case
scenario that we have come up with is something happening at an
inaugural.
What the Congress has to do, and what you also have to
think about, is the succession process for all three branches.
We need to take another look at presidential succession. Now,
it has been done very responsibly in the past by the Congress.
I think it is outmoded at this point. But the reason that we
drew our constitutional amendment the way we did was very much
to parallel the way that the Constitution itself deals with
presidential succession. It delegates to Congress that
authority by law, not a supermajority, after a President.
Congress hasn't manipulated that process for partisan or
other crass political purposes. They have dealt with it very
seriously. I have little doubt that if you passed an amendment
that gave the Congress the authority to set rules in place for
emergency interim appointments that it would be dealt with in a
responsible and not a political fashion.
What pains me the most is that all of these issues, how you
set the threshold, what that threshold ought to be, whether as
Mr. Ehlers suggested 100 members is really necessary, or
whether it ought to be 300 or 400 for a quorum, whether we are
dealing with the kind of worst case scenario that Don
Wolfensberger just talked about where he indicated a
willingness at least to consider an amendment where you have
got widespread incapacitation but not to a point where you
would expel Members, but you would be gridlocked for months
without a quorum, any of those circumstances, we ought to have
been debating this over the last 2 years to try and come to
some balanced judgment. It is only now that we are going to do
it.
We have had lengthy periods without a Vice President. We
had Presidents comatose for months, with Woodrow Wilson. We
didn't act until it was forced upon us. We ought to be able to
do better now.
Mr. Larson. Along those same lines, Chairman Dreier in his
discussion alluded to the fact that there--he was talking about
a virus, and in this case a virus that eats the Constitution.
Of course he was referring to the fact that all of these
potentially bad things could happen when you propose amending
the Constitution. And yet as we look back at our history, that
is not the case. They have been very thoughtful.
I am not concerned, especially given the events since
September the 11th, and the response of the American people,
who seem to have a more renewed and deliberative interest about
the instrument of government, that this wouldn't be a wonderful
exercise for this country to reacquaint itself with its civic
responsibility.
And I further believe that, you know, some valid points
have been made in terms of time, and the very nature of the
House of Representatives and the concept that they are elected
directly by the people. What a great opportunity to bring this
forward to classrooms and back to our town halls and our
communities where people once again take a renewed interest in
what did, in fact, our forefathers intend.
And what is this process of amending the Constitution? And
can this circumstance simply be dealt with legislatively?
Should there be a list of people? Should we go back to the
State legislators or the Governor for an appointment process?
What kind of constraints should we have? Why shouldn't the
American people participate in this thing, and have the media,
instead of flooded with the--well, kinds of programming that
often emanate in the evening? Why not focus on this kind of
amendment process concurrent with an instant remedy that Mr.
Sensenbrenner has proposed as well?
In the event, God forbid, anything were to happen between
the process of ratification or not, or in the event that an
amendment was not ratified then, I guess half a loaf is better
than no loaf at all. But I am very deeply concerned by the
questions that you have raised, and I thank Mr. Lewis again.
I believe that if Secretary Kiffmeyer could do it in 31
days, and given the crisis and even given Mr. Sensenbrenner's
concept that America will pull together, you know that America
would pull together in that kind of a fashion. But should they
under those circumstances, and are there unanticipated
calamities, as the Secretary pointed out, that we haven't even
yet considered? And why not have a bird in the hand in terms of
an emergency provision that would allow us to have the kind of
transition that would preserve the very sacred idea that is
embodied in the Dreier and Sensenbrenner and Miller proposal?
Mr. Wolfensberger. Mr. Chairman, Mr. Larson, that is an
excellent statement. I think, you know, you have obviously
thought this over a great deal. I just wanted to get back to
one thing though. I have to take issue with my good friend Tom
Mann using the word ``hubris'' as applying to those who think
the House is unique and it should retain its elected character
no matter what.
I don't think that is hubris at all, because to me hubris
means an attitude of infallibility, invulnerability, being
above the law, being above the people. The attitude of the
people that you have heard today on the earlier panel that
support or oppose the constitutional amendment is that they are
of the people, not above the people. That is not hubris. They
want to keep it that way.
The House is different from the Senate. I don't care how
much they are getting more alike in the way they campaign or
some of the rhetoric they use on the floor at both bodies. The
Senate is full of a lot of former House Members that carry some
habits with them. But the fact remains that they are two
different institutions. And when you consider the fact that the
history of this constitutional amendment we are talking about
today, it has passed the Senate three times but never the
House. Why?
Because the Senate has the attitude that you have for My
Fair Lady, why can't a woman be more like a man? The Senate
says, why can't the House be more like the Senate? Well, it is
not. And that is the reason that you have had the resistance in
the House and the reason the Senate has been so happy to let
the House be like the Senate and allow the Governor to appoint.
But I would remind you that we got the 17th amendment
because we had legislatures appointing Senators in the old days
and things got so scandalous by that process that they had to
go with direct elections. That is how we got the 17th
amendment. My State of Illinois was the worst, from what I have
read.
So you have to think these things over as to why we have
these differences, where we are both coming from. Yes, we are
unique. It is not hubris that the House thinks it is of the
people and maybe it should stay that way even in the short term
in a catastrophic situation.
So I will leave it at that.
Mr. Mann. I am sorry, but the Senate is of the people too.
They have direct elections and had even well before in most
States the 17th amendment was passed. That ratified a practice
that was well underway. The differences between the bodies are
important but they do not rest on whether the legitimacy of the
body flows from the people. Both bodies are elected by the
people and are representative of different terms, different
constituencies, different sizes, different constitutional
provisions.
What we are talking about is temporary appointments. That
is a very, very small part of the picture. And for anyone to
place the special character of the House on that provision I
think is to do great distortion to the constitutional system as
it exists today.
Mr. Larson. What would you think about a provision that
would, and I think Mr. Ornstein alluded to this, that the
Commission considered this. But Governor O'Neill from
Connecticut, a very wise man, had to deal with constitutional
appointments when he was Governor and had appointive capacity.
And one of his rule of thumbs was that you could never succeed
yourself in that position. You could serve out the term. And
there was nothing constitutionally that would have prevented a
person from succeeding himself. But that was the understanding
and the proviso, because, he would argue, that you were not
elected by the people and you shouldn't be using this office to
initiate your campaign to succeed yourself.
How would you respond to that wisdom of Governor O'Neill?
Mr. Mann.. I think there is something to be said for that.
It is true in our Commission we had a lively debate on that.
One of the problems was that it seemed like a restriction on
free speech, free expression to deny someone the ability to run
for office. But if it was deemed to be consistent with the Bill
of Rights, since we are talking about emergency temporary
appointments in the face of a national catastrophe, I think it
would be highly desirable for these to be seen as interim
temporary appointments drawing on people, as others have said,
hopefully with legislative experience and some standing who
could fill this need on a short-term basis.
Mr. Ornstein. You know, our position, and I think I can
associate Brian Baird with this as well, is for most of these
things we are almost agnostic. Whether it is State legislators
with a time limit so you wouldn't end up with the gridlock and
then Governors taking over to make these decisions, whether it
is a list of people, any limits that you place on those making
the appointments and preventing them from running again, those
are fine. I would be perfectly happy to enthusiastically
endorse any or all of those.
The most significant thing is that we grapple with these
issues and that we begin to move on them. The one thing I
believe we all agree with is this should not be for the House
of Representatives a routine matter. We don't want
appointments. We don't want the House to be exactly like the
Senate.
We want this to be only in the event of the most dire
catastrophe, and if you want to set the threshold at 218, or if
you want to set it with some combination of Members dead or
incapacitated, if you wanted to set it at 300 even, something
that is high enough that you are only going to trigger it under
the worst of circumstances where the alternative is no House at
all for a substantial period of time, please go ahead and do
so. Just do it.
Just one other very brief note, because Mr. Ney had
mentioned military voters and we didn't get back to that, and
Representative Miller mentions it in her testimony as well. We
did have a very small number who voted using the Internet the
last time. We have a pilot project going forward in this
election that will encompass a lot more people.
But using the analogy of the worm that Mr. Dreier
suggested, given the worms we have had in the Internet, knowing
the fire walls under the best of circumstances don't work,
knowing we have had all kinds of conferences and experts look
at Internet voting more generally, this is a disaster in the
making more generally.
It is not going to work particularly. It would be easy to
have that thwarted under the circumstances. To have an
expedited election in a 3-week period fundamentally means that
you are going to deny lots of absentee voters the right to
vote, and you are going to deny the military the right to vote.
And under these circumstances where you may be picking
Representatives for a long period of time, that is a
consequence that we ought to think through very seriously if we
want to move to 3 weeks, 6 weeks, 8 weeks or 12 weeks.
Mr. Larson. Madame Secretary, I saw you wanted to speak.
Ms. Kiffmeyer. Yes, Mr. Chairman. I thought Dr. Ornstein, I
thought you did a wonderful job laying it out just simply. Take
this larger matter at hand on a principal base away and move
forward, because the greater danger is not having anything at
all, something happening of catastrophic importance and then we
have nothing at all to go on, which would be very, very
harmful.
And I am reminded of a platform rules committee that I was
dealing with, made up of 10 attorneys.
After several meetings of taking notes for them we had
several pages of rules to govern our convention. The morning of
the convention we were to finish doing those rules. However, we
ran out before the convention started. The convention started
without those rules, and it was not a pleasant situation.
So it illustrates the point that even in any situation you
may not have perfection but do not let that keep in the way of
doing the best, and do not let the analysis paralysis take hold
and thereby miss the greater good by simply taking action.
The Chairman. I will make a comment on Dr. Ornstein's
comment.
You know, what we might have to do is say, look, we can't
do these in 10 days, we can't do them in 21 days, or, if you
do, here is where you disenfranchise. Then you lay out on the
table and you admit it, doing the best you can do. But those
are decisions that do have to be thought out.
Everybody here has raised a lot of good points. I have one
question about the constitutional amendment. Any best guesses
of what time frame the States would ratify it? I mean, we are
talking about right now if an emergency at--the Capitol is
under some catastrophic attack, could this be how many years
down the road?
Mr. Lewis. I am going to be one--I would say to you, I am
Pollyanna in all of this because I believe in the process and I
think it will all work, so I am probably someone who is going
to give you the dreamer's attitude. But I honestly think if you
come up with a constitutional amendment that is halfway
reasonable you are going to see the States act fairly quickly
this time on it because they understand the nature of what we
are facing that we have never faced before.
The Chairman. I wanted to make one comment also. We joke
about the Senate and the Senate about the House, but in all
reality it is the United States' Senate. If something happened
over there, their difference--we are elected. But their
difference, as we know, they can be reconstituted within days.
In the event something does happen, at least you do--in the
knowledge in your mind, you do have a fully constituted Senate.
That doesn't mean you shouldn't have a House, but at least you
do have a body. It is not like both bodies have to be elected
and all of a sudden you don't have a Senate or a House. So that
is at least a stability point with the Senate's appointment
process.
Mr. Ornstein. With one exception, and it is a real-world
exception that we saw with the anthrax. If that anthrax attack
had been in fact a serious terrorist effort to disable the
Senate and had gotten into the ventilation system through the
offices, we might very well have had 50 or 60 senators in
intensive care units with inhalation anthrax for months--no
quorum, no Senate. So I believe the Senate also has a
responsibility now. There are too many real-world circumstances
where you would have neither a House nor a Senate because of
widespread incapacitation. The Senate has a hole in its process
that has to be dealt with just as much as the House.
The Chairman. On those terms I was thinking of death. But,
again, it comes back to the incapacitation. I think it is a
real touchy subject to who deems that that Senator is
incapacitated and who deems it in the hospital. Does the doctor
or the governor? That is a road that needs a good amount of
discussion.
Mr. Lewis. What I would hope as a result of what you all
have done today and what Senator Cornyn did a couple of weeks
ago in the Senate is that I would hope that the concept that
you folks need to move forward settles in. Obviously, somebody
in here has to take lead, because when--all too often what
happens in what I have observed and what happens on Capitol
Hill is that people go into brain lock when they offer a bill.
They just absolutely cannot see any other way to do things
other than what they have proposed. Hopefully, your committee
can guide through this process to help all the Members see that
there is a greater good here and a greater objective here. But
with all due respect, I think Senator Kiffmeyer--Secretary
Kiffmeyer absolutely right. The urgency is now.
Mr. Wolfensberger. Just one point on the length of time it
would take to ratify the constitutional amendment. I think it
depends on the nature of the constitutional amendment. If you
come up with one that the Commission has recommended that says,
well, the Congress will fill in the blanks later with the
statutory language, I think it would take the States some time
to come around to that. They may not support it because they
see that Congress can do most anything then by law. So a lot of
it depends on the nature of the constitutional amendment. If it
is one that is fairly clear, such as mirroring what the Senate
now does, that may well go pretty fast. I just don't know.
But getting back to the O'Neil principle that Congressman
Larson raised on whether a Member that is appointed should be
able to succeed himself, I am strongly ambivalent on that. On
the one hand, I agree with the others that under the
Constitution anybody that is eligible should be able to run for
office. On the other hand, you have these people who have just
been appointed and you say the urgency is for them to be there
and do the emergency legislating that needs to be done, but at
the same time you are making it possible for them to be running
for office. And you know darn well with an expedited election
they are going to be back home running for office more than
they are going to be here learning the ropes and doing the
legislating.
Mr. Larson. That is why Governor O'Neil was a wise
governor.
The Chairman. I want to thank a tremendous panel, and I
want to thank all the witnesses who have worked so hard to
prepare for this. I want to thank Congressman Larson and his
staff and our staff for all of their time and effort into this.
I ask unanimous consent that a written statement prepared
by Senator John Cornyn of Texas on the subject of H.R. 2844 be
entered into the record.
Without objection, his statement will be entered.
[The statement of Senator Cornyn follows:]
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The Chairman. I ask unanimous consent that members and
witnesses have 7 legislative days to submit material in the
record and for their statements and materials to be entered
into the appropriate place in the record.
Without objection, the material will be so entered.
I ask unanimous consent that the staff be authorized to
make technical and conforming changes on all matters considered
by the committee at today's hearing.
Without objection, so ordered.
That completes our business for today. Thank you.
Mr. Larson. Mr. Chairman, I just wanted to thank you for
bringing this forward in a timely fashion as you always do.
[Whereupon, at 5:25 p.m., the committee was adjourned.]