[House Hearing, 108 Congress]
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                               before the

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION




      Printed for the Use of the Committee on House Administration

                            WASHINGTON : 2003
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                        BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan           JOHN B. LARSON, Connecticut
JOHN L. MICA, Florida                  Ranking Minority Member
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



                     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 
    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 
    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:]

    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.


    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,'' 
    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 
    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:]

    The Chairman. Chairman Dreier.


    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 
    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 
    [The statement of Mr. Dreier follows:]

    The Chairman. Mr. Frost 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 
    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 
    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:]

    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.
    The Chairman. The committee will come to order, and we will 
continue with testimony from Congressman Baird 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 
    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:]

    The Chairman. The gentlelady from 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 
    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.
    [The statement of Mrs. Miller follows:]

    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.



    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 
    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.




    The Chairman. Thank you for your testimony.
    Dr. 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:]

    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 
    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 
    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:]

     [GRAPHIC] [TIFF OMITTED] T0083A.063
    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:]

    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 
    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 
    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 
    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.


    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 
    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:]

    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Mr. Larson. That is why Governor O'Neil was a wise 
    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:]

    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.]