[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CONTINUITY OF CONGRESS: AN EXAMINATION OF THE EXISTING QUORUM
REQUIREMENT AND THE MASS INCAPACITATION OF MEMBERS
=======================================================================
HEARING
before the
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
APRIL 29, 2004
__________
Printed for the use of the Committee on Rules
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COMMITTEE ON RULES
DAVID DREIER, California, Chairman
PORTER GOSS, Florida, Vice Chairman
JOHN LINDER, Georgia MARTIN FROST, Texas,
DEBORAH PRYCE, Ohio Ranking Minority Member
LINCOLN DIAZ-BALART, Florida LOUISE McINTOSH SLAUGHTER, New
DOC HASTINGS, Washington York
SUE MYRICK, North Carolina JAMES P. McGOVERN, Massachusetts
PETE SESSIONS, Texas ALCEE HASTINGS, Florida
TOM REYNOLDS, New York
Witnesses
Panel 1
The Honorable Charles W. Johnson, Parliamentarian of the
House, United States House of Representatives.
Mr. John Sullivan, Deputy Parliamentarian of the House,
United States House of Representatives.
Mr. Tom Duncan, Deputy Parliamentarian of the House, United
States House of Representatives.
Panel 2
The Honorable Walter Dellinger, Douglas B. Maggs Professor
of Law, Duke University, and Former Acting Solicitor General of
the United States.
Panel 3
Dr. John Eisold, M.D., The Attending Physician to Congress
& Rear Admiral, Medical Corps, United States Navy.
Overview
On April 1, 2004, Committee on Rules Chairman David Dreier
and Ranking Member Martin Frost announced a bipartisan inquiry
into issues associated with the incapacitation of Members. As
Chairman Dreier said, ``It's possible that a terrorist attack
could result in not just deaths, but incapacitation as well.
How does this affect our quorum? What is the standard for
incapacitation? Can adjustments to deal with these
possibilities be made within our own rules?'' Ranking Member
Frost concurred in the need for a full inquiry when he said,
``The issues surrounding the incapacitation of large numbers of
Members in the House of Representatives present some of the
thorniest questions the Congress must address. This is an issue
never contemplated by the Framers, but it is an issue that is
very relevant to the House today.'' The Committee on Rules held
an original jurisdiction hearing on these issues on April 29,
2004, at 10:00 a.m. in Room H-313 of the Capitol.
This hearing continues the in-depth review by the Committee
on Rules of how to ensure the functioning of our representative
government in the event of a catastrophe.
The U.S. Constitution requires that each body of the
Congress have a quorum in order to conduct most business. Under
House rules and House precedents, a quorum is defined as a
majority of Members who are ``chosen, sworn, and living.'' With
a full membership of 435 Members in the House, a quorum is 218.
Current House rules allow the Speaker of the House to adjust
the quorum downward if Members die or resign while in office.
However, if a terrorist attack or other form of catastrophe
left a large number of Members incapacitated, the number
required for a forum could not be lowered because the Members
would still be alive. If a sufficiently large number of Members
were incapacitated, the House could be unable to muster a
quorum and thus unable to conduct business--at precisely the
time when the House will need to be able to act for the Nation.
Purpose of the Hearing
One of the most important duties of the Congress is to
assure continuing representation and Congressional operations
for the American people during times of crisis. This hearing
marks another important step forward in the U.S. House of
Representative's Continuity of Congress efforts.
Since the terrorist attacks of 9/11/2001, the Congress has
taken a number of actions to improve the continuity of
Government operations, including its own, in the face of any
catastrophe. These efforts began soon after 9/11 with a number
of Committees of the house and Senate considering both how we
can prevent future attacks and how the Congress itself would
function if we cannot prevent them. For example, in February
2002, the Judiciary Subcommittee on the Constitution held a
hearing on a constitutional amendment approach to deal with the
deaths or incapacitations of 25% or more of the body by
allowing the Governors of states to appoint Members to serve
until special elections could be held.
One of the most important efforts by the House since 9/11
was the foundational work done by the bipartisan Cox-Frost task
force during the middle and later part of the second session of
the 107th Congress. Led by Republican Policy Committee Chairman
Cox and then Democratic Caucus Chairman Frost, the task force
laid the groundwork for many of the continuity issues that the
House is acting upon during the 108th Congress. It drew from
the experience of a number of Members including Committee on
Rules Chairman Dreier and Representatives Chabot, Nadler, Ney,
Hoyer, Vitter, Baird, Jackson-Lee, and Langevin.
Also during the close of the 107th Congress, the House and
Senate enacted landmark legislation establishing a new
Department of Homeland Security, the most significant
governmental reorganization in over fifty years. Additionally,
both chambers began the practice of adopting concurrent
adjournment resolutions that would ensure the ability of House
and Senate Leadership to convene the Congress in an alternative
place or at an alternative time should it be in the public
interest.
Since the convening of the 108th Congress, the rules of the
House also have been amended to help assure the Continuity of
Congress. These changes were based on recommendations made by
the Cox-Frost task force and include: (1) requiring the Speaker
to submit a list of designees to serve as Speaker pro tempore
for the sole purpose of electing a new Speaker in the event of
a vacancy in the Office of the Speaker (clause 8(b)(3) of rule
I); (2) providing for Members to serve as Speaker pro tempore
in the event of the incapacitation of the Speaker (clause
8(b)(3) of rule I); (3) enabling the Speaker to suspend
business in the House by declaring an emergency recess when
notified of an imminent threat to the safety of the House
(clause 12(b) of rule I); (4) allowing for House Leadership to
reconvene the House earlier than a previously appointed time
(clause 12(c) of rule I); and (5) authorizing the Speaker to
convene the House in an alternative place within the seat of
Government (clause 12(d) of rule I).
On April 22, 2004, the House adopted, by a vote of 306-97,
a legislative solution to deal with the deaths of large numbers
of Members by requiring the States to conduct expedited special
elections within 45 days if more than 100 Members are killed.
In addition, the Chairman of the House Committee on the
Judiciary has committed to consideration of a constitutional
approach to these issues in the near future.\1\ The particular
focus of this hearing is to assess the House's ability to
function if many Members are alive but unable to carry out
their duties because of serious injury.
---------------------------------------------------------------------------
\1\ H.J. Res. 83 (sponsored by Congressman Brian Baird) failed on
passage by the Yeas and Nays (\2/3\ required): 63-353-2 (Roll Call Vote
No. 219 on June 2, 2004).
---------------------------------------------------------------------------
The Framers of the Constitution provided the nation with a
structural framework for conducting business in the Congress
that includes a majority quorum requirement. Under longstanding
House precedent, which parallels Senate practice, a quorum has
been interpreted as a majority of the Members chosen, sworn,
and living. Thus, in a House of 435 Members, a quorum can only
be achieved with 218 living Members.
Under another longstanding House precedent, as codified
recently in clause 5(c) of rule XX, after a recommendation to
that effect by the Cox-Frost task force, the Speaker is
empowered to adjust the whole number of the House (and
concomitantly its quorum) upon the death or resignation of
Members. To illustrate, if a catastrophe occurs and 225 Members
of the House were found dead, the whole number of the House
would be 210. The Speaker, under the Rules, would announce that
fact to the House. The number required for a quorum would be
106. The House could proceed on that basis to conduct business.
However, a catastrophe resulting in the incapacitations,
but not deaths, of large numbers of Members presents a
different outcome. Since those incapacitated Members are still
alive, they remain a part of the quorum calculation. Thus, if a
catastrophe occurs and 225 Members are incapacitated, the whole
number of the House would remain unchanged, i.e. 435. The
number required for quorum would remain 218. But only 210
Members would be available to vote. The House could be unable
to act if a roll call vote revealed the absence of enough
Members to constitute a quorum for business.
As a threshold matter, since it is the Constitution that
sets the majority quorum requirement, it may be relevant to
consider whether amending the Constitution is necessary to deal
with mass incapacitations. On the other hand, it is also
probable that the Constitution was adopted to facilitate the
functioning of Government, not to act as a stumbling block, in
times of national crisis.
Alexander Hamilton commented on this concept in The
Federalist Papers, #59, with respect to House elections. He
said that ``every government ought to contain in itself the
means of its own preservation.'' Additionally, Justice Joseph
Story wrote in the Commentaries on the Constitution of the
United States that the Congress, in representing the entire
nation, must be able to exercise certain inherent powers to
deal with unforeseen circumstances which could threaten the
continuity of its operations and the safety of the nation. See
Commentaries on the Constitution of the United States, Volume
II, Sec. 842 (1970).
In that light, the Committee on Rules majority staff has
prepared a discussion draft for a proposed rules change to
address the mass incapacitation problem. However, the hearing
on April 29th is an oversight hearing, and there will be no
formal mark up of the proposed draft. Rather, the discussion
draft may facilitate the Committee's discussions on these
matters. Additionally, it should be noted that this language
was based on an earlier Cox-Frost task-force discussion
proposal.
In summary, the discussion draft does not define
incapacitation itself; rather, it addresses the key question
for the House--how will the House be able to act if there are
large numbers of Members incapacitated? The discussion draft
suggests that the inability of Members to respond to multiple
and lengthy calls of the House when coupled with measures
designed to confirm to the Speaker that a catastrophe has
occurred, may allow for a House to proceed with a provisional
quorum. This temporary, provisional quorum, existing only in a
time of catastrophe, would consist of a majority of those able
to respond to the calls of the House.
Finally, the Committee expects that the hearing will
include time for the witnesses to be thoroughly questioned by
Committee Members, after the witnesses present overviews on
issues such as:
How the House previously has dealt with the
incapacitation of Members;
Precedents, House Rules, and laws affecting
the Continuity of Congress;
Mass incapacitation and its effects on quorum;
Constitutional principles and relevant cases
affecting the ability of the Congress to ensure that it
can act in the face of any catastrophe;
Role and resources of the Attending Physician
to Congress; and
Plans and procedures for dealing with a
catastrophe affecting the Congress.
CONTINUITY OF CONGRESS: AN EXAMINATION OF THE EXISTING QUORUM
REQUIREMENT AND THE MASS INCAPACITATION OF MEMBERS
----------
WEDNESDAY, APRIL 29, 2004
House of Representatives,
Committee on Rules,
Washington, DC.
The committee met, pursuant to call, at 10:05 a.m. in room
H-313, The Capitol, Hon. David Dreier (chairman of the
committee) presiding.
Present: Representatives Dreier, Linder, Hastings of
Washington, Frost, and McGovern.
The Chairman. The Rules Committee will come to order. We
obviously are dealing with some challenges in that there are no
votes on the floor. But I am happy to see now, with Mr.
McGovern here, that we have four members of the committee here
in attendance, and I appreciate the interest on what is
obviously an extraordinarily interesting and challenging issue
that we have.
I have some comments that I would like to make, and then I
am going to ask two of our very able staff members, Mr. George
Rogers and Ms. Kristi Walseth to proceed, to join in making a
Power Point presentation to us.
And then we are going to be hearing from the
Parliamentarian and his colleagues, and then Admiral Eisold,
and I guess we have got Mr. Dellinger as well. So this should
be interesting. I think that it is going to probably take a
little time for us.
So let me begin by saying how much we appreciate all of the
time and energy that has gone into this on the part of an awful
lot of people. We are very happy to welcome as our first
witness, as I said, the Parliamentarian. He has had more than
four decades of great public service, and indeed is a great
pitcher. He is very well known for his athletic prowess. We are
wondering when he is ultimately going to get into the big
leagues. But he will continue to strive to do that. But we know
that he has made a lot of very important contributions to this
institution. We appreciate his service, and the service of so
many of his colleagues. And I want to publicly state my
appreciation to the Parliamentarian and his staff for all of
the great, great work that they have done to help me get
through some very challenging times on the House floor, whether
I have been presiding or dealing with legislation.
Let me say on the 1st of April, Mr. Frost joined me in
announcing this hearing. Yesterday the two of us sent a letter
to the members of the committee, a letter describing what we
will be covering today. And I hope that we can continue to
approach these very important constitutional issues in a
bipartisan way, which is very important.
You know, just about 30 minutes ago, the President of the
United States and the Vice President began their meeting with
members of the commission focused on the tragedies of September
11th of 2001.
And we look at that catastrophe. I have gotten word this
morning that there is a terrorist threat in my hometown of Los
Angeles. And so we spend a lot of time realizing how September
11th has changed our lives. It really forced us here in this
House to focus on the importance of assuring the American
people that their government will function in times of crisis.
This discussion started off on the right foot in the 107th
Congress with the work that Mr. Frost and my California
colleague, Mr. Cox, co-led. And I congratulate them for their
fine work. They stayed outside of the public limelight and held
private discussions on issues that were very difficult, like
member mortality and what steps should be taken.
I still believe that a bipartisan private work group
approach is the best way for Members to freely and openly
discuss their own possible demise and how we should plan for
the continuity of Congress. There would be plenty of time for
public discussion after the Members have thought this through
together, which is what I think is very, very important for us
to do.
Now, from my perspective, continuity of Congress questions
fall into three major categories:
First, vacancies: how to best replace Members in the event
of mass casualties resulting in death.
Number two, mass incapacitation: how to deal with mass
casualties that result in the incapacitation but not the death
of large numbers of Members.
And, three, administrative questions: official papers,
documents, and what changes in our bicameral protocols are
necessary for Congress to function in time of crisis.
I want to applaud the leadership of Speaker Hastert on
continuity. And I share his great love for this institution. He
has been able to accomplish much already by fine-tuning the
Rules of the House to respond to a crisis.
At this point, I would like to enter into the record the
statement outlining all of those changes that the Speaker has
made. Without objection, it w]ill appear in the record.
[The information follows:]
Authority to effect a joint-leadership recall from a
period of adjournment to an alternate place (in concurrent resolutions
of adjournment).
Authority to effect a joint-leadership recall from a
period of adjournment through designees (in concurrent resolutions of
adjournment).
Anticipatory consent with the Senate to assemble in an
alternate place (in a putatively biennial concurrent resolution on the
opening day of a Congress).
Requirement that the Speaker submit to the Clerk a list
of Members in the order in which shall act as Speaker pro tempore in
the case of a vacancy in the Office of Speaker (including physical
inability of the Speaker to discharge his duties) until the election of
a Speaker or a Speaker pro tempore, exercising such authorities of the
Speaker as be necessary and appropriate to that end (clause 8 of rule
I).
Authority for the Speaker to suspend pending business of
the House by declaring an emergency recess subject to the call of the
Chair when notified of an imminent threat to the safety of the House
(clause 12(b) of rule I).
Authority for the Speaker, during any recess or
adjournment of not more than three days, in consultation with the
Minority Leader, to postpone the time for reconvening or to reconvene
before the time previously appointed solely to declare the House in
recess, in each case within the constitutional three-day limit (clause
12(c) of rule I).
Authority for the Speaker to convene the House in an
alternate place within the seat of government (clause 12(d) of rule I).
Codification of the long-standing practice that the
death, resignation, expulsion, disqualification, or removal of a Member
results in an adjustment of the whole number of the House, which the
Speaker shall announce to the House and which shall not be subject to
appeal (clause 5 of rule XX).
Establishment of a Select Committee on Homeland Security
with oversight and legislative jurisdiction over matters relating to
the Homeland Security Act of 2002 identified by the speaker and the
responsibility to make recommendations concerning future legislative
jurisdiction over homeland security matters (sec. 4, H. Res. 5, 108th
Cong.).
Establishment of an Appropriations Subcommittee on
Homeland Security.
The Chairman. In addition, there are a number of things
that we should consider for the continuity of Congress. The
entire House voted to support the idea of sitting down with our
colleagues in the Senate in a similar bipartisan manner to try
to see where we could agree on these issues of continuity.
Unfortunately, the Senate declined this approach to work out
our differences, which I believe is very unfortunate.
There have been a number of issues during this Congress
that could have benefited from that kind of bicameral dialogue
that we very much wanted to have, and frankly are still
pursuing if we possibly can.
One example. I wrote to the Senate leadership in November
of 2003, because the language of the Senate adjournment
resolution did not include the language regarding the call-back
power of designees and the ability of leadership to reconvene
in an alternative place. And we know our House versions
consistently have included this language, and we hope very much
that it could become a boilerplate for both houses of Congress.
Because of the importance of engaging the Members on these
very crucial issues for the institution, I have asked our
colleague who is here, Mr. Doc Hastings, who managed the rule
last week on the House floor on the continuity issue--he has
shown a great deal of leadership on these questions that we
have had--I have asked him to work informally with the Members
to find out their views on these very, very important matters
that we have.
First, let me comment on the issue of vacancies. Regarding
that category I note, and I just mentioned last week, the House
adopted the Continuity in Representation Act. And this was
legislation that I was pleased to join the Chairman of the
Judiciary Committee in offering. It passed, I am happy to say,
with a very strong bipartisan vote, which has been our goal all
along, of 306 to 97.
This legislation, as everyone knows, requires the States to
conduct expedited special elections to fill vacancies created
by the deaths of large numbers of Members. I also would note
that some Members prefer a constitutional approach for dealing
with vacancies. It is unclear whether even a simple majority of
the House, let alone the two-thirds, would support a
constitutional amendment.
Nonetheless, I am very pleased that we have an agreement
with the Judiciary Committee chairman to proceed with the
consideration of the constitutional approach, which I know a
number of Members have encouraged, on the issue of mass
incapacitation.
The second category on the continuity, which we are really
focusing on in this hearing today, and that is, as I say, the
topic that we have, it is a much more difficult issue, and we
are only beginning to fully examine and vet it with the Members
of the House. Let me briefly illustrate the particular problem
that mass incapacitation could present.
The framers of the Constitution provided the Nation with a
structural framework for conducting business in the Congress
that includes a majority quorum requirement. And under
longstanding House precedent, which parallels the Senate
practice, a quorum has been interpreted as a majority of the
Members chosen, sworn, and living. Thus, in the House, with 435
Members, a quorum can only be achieved with 218 Members, living
Members.
Under another longstanding House precedent, which we
codified in clause 5(c) of rule XX, the Speaker is empowered to
adjust the whole number of the House, and thus its quorum, upon
the death or resignation of Members. Thus, if a catastrophe
occurs and 225 Members of the House were found dead, the whole
number of the House would be reduced to 210. The Speaker under
the rules would announce that fact to the House. The number
required for quorum would then, of course, be 106. The House
could proceed on that basis to conduct its business.
Now, a catastrophe resulting in the mass incapacitations
but not deaths of a large number of Members obviously presents
a very, very different outcome. Since those incapacitated
Members are still alive, they remain a part of the quorum
calculation. Thus, if a catastrophe occurs and 225 Members are
incapacitated, the whole number of the House would remain
unchanged, 435 Members. Now, the number required for quorum
would, of course, remain at 218, but only 210 Members would be
eligible to vote. The House would be unable to act if a roll
call vote required the presence of Members to constitute a
quorum for business.
The Constitution sets the majority quorum requirement, and
some believe that this, too, is an important issue that
requires a constitutional approach. It is no secret that I am
very hesitant to touch the Constitution on any issue at all.
That is why I like to point to Alexander Hamilton's quote. Last
week I spent my time quoting Madison, who was to me the father
of the Constitution and a lead author of The Federalist Papers.
But I am going to point to a couple of Hamilton quotes. In
Federalist 23 he said: ``It is impossible to foresee or define
the extent and variety of national exigencies and the
corresponding extent and variety of the means which may be
necessary to satisfy them. Circumstances that endanger the
safety of nations are infinite, and for this reason no
constitutional shackles can be wisely imposed. I believe that
the Constitution was adopted to facilitate the functioning of
representative government, not to be a stumbling block,
particularly in times of national crisis.''
Supreme Court Justice Joseph Story said, in the
Commentaries on the Constitution of the United States, the
Congress, in representing the entire Nation, must be able to
exercise certain inherent powers to deal with unforeseen
circumstances which could threaten the continuity of its
operations and the safety of the Nation.
Now, the framers have agreed, we obviously agree with
Justice Story.
And Alexander Hamilton went on, in The Federalist Papers
59, to say: ``Every government ought to contain in itself the
means of its own preservation.''
Additionally, I would note that even if we ultimately have
to pursue a constitutional amendment approach, we would need a
rule to implement the amendment. So this is, like the majority
staff has suggested, a way for us to address the mass
incapacitation problem by amending the House rules. It is a
discussion draft, and draws on work done by the Cox-Frost task
force.
In summary, the draft does not define ``incapacity''
itself; rather, it addresses the question for the House: How
will the House be able to act if there are large numbers of
Members incapacitated? The draft suggests that the inability of
Members to respond to multiple and lengthy calls of the House,
when coupled with measures designed to confirm to the Speaker
that a catastrophe has occurred, may allow for the House to
proceed with a reduced quorum.
This temporary provisional quorum, existing only in a time
of catastrophe, would constitute a majority of those able to
respond to the calls of the House.
Let my say that I do look forward to the testimony that is
going to be offered by our witnesses. And I want to recognize
our colleague who is the ranking minority member of the House
Committee on Administration, Mr. Larson.
I want to compliment him on not only the fact that he is
here today, but on the tremendous effort that he has put into
this, and the way that he handled the debate last week that we
had on the House floor. He has been a real pleasure to work
with, and he joins me, and I know the rest of the members of
this committee and many Members of the House, to be very
dedicated to this institution.
Finally, I would like to turn briefly to the third category
of the continuity of Congress, and that is administrative
questions. I believe that we need to ensure that in a national
emergency we can perform the basic requirements of our
bicameral system. The Speaker has taken the leadership on the
emergency and safety aspects of these questions.
I think we need to also assess whether our congressional
protocols and structure are there so that both houses of
Congress can continue to legislate and fulfill their respective
constitutional duties in times of national crisis.
So with that, before we hear from the Parliamentarian and
his colleagues, I would like to call on George and Kristi now,
to give us a brief presentation that might allow us to address
some of the questions that we have.
Prepared Statement of Congressman David Dreier, Chairman
On April 1st, 2004, Ranking Member Martin Frost joined me in
announcing this hearing. Yesterday we sent all of the Members of the
Committee a letter describing what we will be covering today. I am
hopeful that we can continue to approach these important institutional
issues with this kind of comity.
The unfortunate catastrophe on September 11th forced the House to
focus on the importance of ensuring the American people that their
government will function in a time of crisis. This discussion started
off on the right foot in the 107th Congress with the work of the
bipartisan task force led by Representatives Chris Cox and Martin
Frost.
They stayed outside of the public limelight to privately discuss
issues like Member mortality and what steps should be taken. I still
believe that a bipartisan, private working group approach is the best
way for Members to freely and openly discuss their own possible demise
and how we should plan for the Continuity of Congress. There would be
plenty of time for public discussion after the Members have thought
this through together.
From my perspective, Continuity of Congress questions fall into
three major categories:
(1) vacancies--how to best replace Members in the event of
mass casualties resulting in death;
(2) mass incapacitation--how to deal with mass casualties
that result in the incapacitation, but not death, of large
numbers of Members; and
(3) administrative questions--official papers, documents, and
what changes in our bicameral protocols are necessary for
Congress to function in crisis.
I applaud the Speaker's leadership on Continuity and share his love
for this great institution. He has been able to accomplish much already
by fine-tuning the rules of the House to respond to a crisis. At this
point, I would ask unanimous consent to enter into the record a
statement on the Speaker's efforts on Continuity.
In addition, there are a number of things that we should consider
for the Continuity of Congress. The entire House voted to support the
idea of sitting down with our colleagues in the Senate in a similar
bipartisan manner to try to see where we could agree on continuity
issues.
The Senate declined this approach to working out our differences,
which is unfortunate as there have been a number of issues during this
Congress that could have benefited from that kind of dialogue.
For example, I wrote the Senate leadership in November 2003 because
the language of Senate adjournment resolutions did not include language
regarding the ``call back'' power of designees and the ability of
leadership to reconvene in an alternative place. Our House versions
consistently have included this language, and we hoped it would become
boilerplate.
Because of the importance of engaging the Members on these crucial
issues for the institution, I have asked Congressman Doc Hastings, who
has shown real leadership on Continuity issues, to work informally with
the Members to find out their views on these important matters.
vacancies
Regarding the first category of the Continuity of Congress,
vacancies, I note that last week the House adopted the Continuity in
Representation Act. I authored this measure with the Chairman of the
Judiciary Committee, and it passed with a bipartisan vote of 306-97.
This legislation requires the states to conduct expedited special
elections to fill vacancies created by the deaths of large numbers of
Members.
I also note that some Members prefer a constitutional approach for
dealing with vacancies. It is unclear whether even a simple majority of
the House, let alone the necessary two-thirds, would support a
constitutional amendment. Nonetheless, I am pleased that the Judiciary
Committee Chairman has agreed to consider a constitutional approach to
these issues in the near future.\2\
---------------------------------------------------------------------------
\2\ Id.
---------------------------------------------------------------------------
mass incapacitation
Turning to the second category of the Continuity of Congress--and
the subject of today's hearing--mass incapacitation, this is a very
difficult issue, and we are only just beginning to fully examine and
vet it with the general Membership.
Let me briefly illustrate the particular problem that mass
incapacitations could present. The Framers of the Constitution provided
the nation with a structural framework for conducting business in the
Congress that includes a majority quorum requirement.
Under longstanding House precedent, which parallels Senate
practice, a quorum has been interpreted as a majority of the Members
``chosen, sworn, and living.'' Thus, in a House of 435 Members, a
quorum can only be achieved with 218 living Members.
Under another longstanding House precedent (codified recently in
Clause 5(c) of rule XX), the Speaker is empowered to adjust the whole
number of the House (and thus its quorum) upon the death or resignation
of Members.
Thus, if a catastrophe occurs and 225 Members of the House were
found dead, the whole number of the House would be 210. The Speaker,
under the Rules, would announce that fact to the House. The number
required for a quorum would be 106. The House could proceed on that
basis to conduct business.
A catastrophe resulting in the incapacitations, but not deaths, of
large numbers of Members could present a very different outcome. Since
those incapacitated Members are still alive, they remain a part of the
quorum calculation.
Thus, if a catastrophe occurs and 225 Members are incapacitated,
the whole number of the House would remain unchanged--435 Members. The
number required for quorum would remain 218. But only 210 Members would
be available to vote. The House could be unable to act if a roll call
vote revealed the absence of enough Members to constitute a quorum for
business.
The Constitution sets the majority quorum requirement, and some
believe that this too is an issue requiring a constitutional approach.
However, I think Alexander Hamilton had it right when he said: ``It is
impossible to foresee or define the extent and variety of national
exigencies, and the corresponding extent and variety of the means which
may be necessary to satisfy them. The circumstances that endanger the
safety of nations are infinite, and for this reason, no constitutional
shackles can wisely be imposed . . . .''--Alexander Hamilton, The
Federalist Papers, No. 23.
I believe that the Constitution was adopted to facilitate the
functioning of representative Government--not to be a stumbling block,
particularly in times of national crisis.
As Supreme Court Justice Joseph Story said in the Commentaries on
the Constitution of the United States, the Congress, in representing
the entire nation, must be able to exercise certain inherent powers to
deal with unforeseen circumstances which could threaten the continuity
of its operations and the safety of the nation. See Commentaries on the
Constitution of the United States, Volume II, Sec. 842 (1970).
The Framers of the Constitution would have agreed with Justice
Story, as do I. In the words of Alexander Hamilton, with respect to
House elections: ``Every government ought to contain in itself the
means of its own preservation.''--Alexander Hamilton, The Federalist
Papers No. 59.
Additionally, I would note that even if we ultimately have to
pursue a Constitutional amendment approach, we would need a rule to
implement such an amendment and an approach to adopt now, not years
from now, while we waited upon ratification of the requisite number of
states.
In this light, the majority staff of the Committee on Rules has
suggested a way for us to address the Mass Incapacitation problem by
amending the House rules.
It is a discussion draft and draws on work done by the Cox-Frost
task force. In summary, the draft does not define incapacitation
itself; rather, it addresses the key question for the House--how will
the House be able to act if there are large numbers of Members
incapacitated?
The draft suggests that the inability of Members to respond to
multiple and lengthy calls of the House, when coupled with measures
designed to confirm to the Speaker that a catastrophe has occurred, may
allow for the House to proceed with a reduced quorum. This temporary,
``provisional'', quorum, existing only in a time of catastrophe, would
consist of a majority of those able to respond to the calls of the
House.
I look forward to hearing both from our witnesses and from our
Members about this approach.
ADMINISTRATIVE QUESTIONS
Finally, I'd like to turn briefly to the third category of the
Continuity of Congress, ``administrative questions.'' I believe that we
need to ensure that in a national emergency, we can perform the basic
requirements of our bicameral system. The Speaker has taken leadership
on the emergency and safety aspects of these questions. I think we need
to also assess whether our Congressional protocols are structured so
that both Houses of Congress can continue to legislate--and to fulfill
their respective constitutional duties in times of national crisis.
Mr. Frost. Mr. Chairman, let me--you had asked me if I
wanted to make a formal opening statement, which I don't have a
formal prepared opening statement, but I do want to make a
couple of points.
The Chairman. Please do.
Mr. Frost. And this will be developed in the course of the
testimony, and it has been highlighted by your opening
statement. The question is determining the quorum under the
standard of sworn and living. And the question in terms of
sworn and living, of course, evolves down to the issue of
incapacity.
One of our witnesses in his prepared statement, Walter
Dellinger from Duke, has urged this body, this committee, that
any resolution of this matter as to determining the number of
sworn and living be done on a bipartisan basis. I think it is
very important that that be incorporated in any rule that
ultimately is reported out.
The discussion draft is interesting. It does not
contemplate--if I am reading it correctly, it does not
contemplate the type of bipartisan participation that Professor
Dellinger is recommending. And the only reason this is of
consequence is the experience that occurred in my home State
last year. This was not a natural catastrophe, but it did go to
determining the existence of a quorum. I know the gentleman is
familiar with what happened. This was a political issue
involving congressional redirecting, and there was not a
constitutional quorum present. And, in fact, the house could
not--the State house could not operate because there was not a
constitutional quorum.
There is a fine line between determining what is a national
catastrophe and what might be the exercise of the majority's
will to reduce the number of a quorum. And the discussion draft
speaks in terms of a catastrophe. It is unclear exactly how
this would be implemented, because it is a discussion draft
without particulars.
The Chairman. Well, that is why it is a discussion draft.
Mr. Frost. I understand. We would be--we would need, if we
approved a rule of this nature, to be very clear as to what
constituted a catastrophic situation. And I would urge that any
rule many incorporate the bipartisan participation that
Professor Dellinger is recommending in his prepared statement.
The Chairman. Well, thank you very much. We look forward to
his testimony. And obviously this is the first time that we
have had a hearing on this issue. And I do appreciate the
perspective that the gentleman offers.
Anyone else wish to offer any opening statements? Okay.
Then why don't we ask George and Kristi to proceed with the
Power Point presentation for us.
Mr. Rogers. I will be very brief, because the Chairman's
statement went over these issues very clearly. We all know that
terrorists can attack the Capitol at any time, and the American
people expect that we will have plans in place to deal with
that.
One of the questions we are here to talk about is the
quorum in the House. And under the Constitution, Article 1,
section 5, a quorum is a majority of Members. So for a fully
constituted House, that is 218 out of 435.
As the Chairman mentioned, the House precedent is those
Members chosen, sworn, and living. The problem, as he stated,
was if Members are alive, they are still living, so they are
still in the quorum. This yields what I am calling the ``quorum
trap.'' And some people don't like that term, but if you have
100 Members incapacitated, for example, a quorum remains a
majority of the full House, 218, because they are still living.
So you have 335 Members who can vote, and business would still
continue. If there are 175 incapacitated, the quorum is still
218, you also have 260 Members able to vote, business
continues.
As soon as you have a majority of Members incapacitated,
that is where you start to build problems, because the quorum
will remain 218 but you, by definition, won't have 218 who will
be able to vote.
Now, if we are proceeding in the context of post-tragedy,
like we did on 9/11, where there is a lot of agreement on both
sides, we won't have a lot of roll call votes, that is one
thing. But it is the opinion of the majority staff that you
would be thinking about all of the ``what ifs'' for the
situation, and you could get into a roll call vote and not be
able to attain a quorum.
So in the absence of a quorum, the Constitution is specific
for two things to be done. We can adjourn from day to day, and
we can compel the attendance of the Members. The House rules
compelling the Members to be in attendance is done by motion of
15 or more Members.
As the Chairman mentioned, if a number of Members die, the
current House rules adjust for that through the Speaker. So if
people die, the whole number drops, and then the majority of
that whole number also drops, so the quorum drops automatically
when Members die. But if they are incapacitated, the quorum
remains the same.
This brings us to the question of defining incapacitation,
something I am hopeful we will hear a lot from our witnesses
today. I think that we will find that they will say it is fact-
specific; when we talk about what would happen if we have 218
or more Members incapacitated, really we are talking about 218
fact-specific situations. And one key question is, Who would
decide that--the attending physician, the Member, him or
herself, the Member's family, or the House?
So the majority staff came up with the proposed solution in
the folders to the Members and which was distributed to the
staff. And it is an immediate solution.
As the Chairman mentioned, if we went into a constitutional
amendment approach, that would take a period of time. We could
still have a catastrophic situation before we could get it
ratified by the required three-quarters of the States. But it
also has a number of questions that we hope are answered by
witnesses today.
Is it constitutionally infirm to proceed on this basis?
Would it bring our laws that we passed into question? Who would
be able to challenge? Who would have standing to challenge our
actions? And how much might the courts rule?
Mr. Frost. Mr. Chairman, could I make one point, because I
think it is very important to point out the distinction here.
This does not--this whole discussion does not deal with what
would happen if a large number of Members were killed. Because
if a large number of Members were killed, the quorum would, in
fact, be reduced.
The Chairman. Right.
Mr. Frost. If the number of Members surviving, sworn, and
living would be potentially very small, this is a point that I
have made on the floor of the House, that----
The Chairman. I covered that in my statement as well.
Mr. Frost. If 430 Members were killed, and you had 5
Members remaining, if I understand the Constitution and the
precedents, then 3 of those 5 remaining Members would
constitute a quorum, and the House could in fact conduct
business.
The only issue would be, whether the public would respect
the action taken by that small a number. And that really goes
to the question of whether this is necessary for a
constitutional amendment, so that you have a large House
reconstituted over a short period of time. That is not what we
are talking about.
What we are talking about today is the grey area where a
number of Members are incapacitated but not dead, and so that
you still have this constitutional quorum of a majority of the
total House and how you deal with that,
The Chairman. Right.
Mr. Frost. The issue of whether it is necessary to have a
constitutional amendment, in my mind, deals with the issue of
when you have a large number of Members killed, not when you
have a significant number incapacitated.
The Chairman. I know. We had that discussion at length, I
know both here and on the House floor. You are correct in your
assessment.
Do you want to add anything, Kristi?
Ms. Walseth. No. You have all covered it very well.
Mr. Frost. Mr. Chairman, again I would ask the witnesses--
and I don't know if, as we, each witness has had a chance to
review the discussion draft. I would hope that they have,
because I will want to be able to ask the witnesses questions
about the discussion draft, because I have serious reservations
about the discussion draft.
The Chairman. Well, that is what a discussion draft is all
about.
Let me, as I have already welcomed several times, and say
that it is a great pleasure for us to have the Parliamentarian
here. It is very rare to have a hearing at which both the
Parliamentarian as well as the Attending Physician participate.
That underscores the gravity of this issue. We know it is one
that is a serious one that needs to be addressed. That is why
we appreciate all of the time and effort and thought that has
gone into this testimony from all who are on this panel.
So, Charlie, let me welcome you. And please proceed as you
wish. If you do have any prepared remarks, they will appear in
the record in their entirety.
STATEMENT OF HON. CHARLES W. JOHNSON, PARLIAMENTARIAN OF THE
HOUSE, U.S. HOUSE OF REPRESENTATIVES
Mr. Johnson. Yes, Mr. Chairman. I appreciate you putting my
prepared remarks into the record.
Thank you for the opportunity, Mr. Chairman, members of the
Rules Committee. It is an honor. What I thought I would do is
allow my colleagues, Deputy Parliamentarians John Sullivan and
Tom Duncan, to contribute as well, and to start from the Cox-
Frost task force considerations to summarize where we were in
those deliberations.
The Parliamentarians all participated in all of them. Mr.
Frost obviously was in all of them. The participation was
excellent on all sides. It was truly a bipartisan task force,
but it realized its limits. Part of the reason it realized its
limits was a result of some of the questions that were asked
during the task force. Mr. Frost asked many penetrating
questions.
Those questions went to the precedents of the House as they
now exist and to our interpretation, including the Speaker
Cannon ruling in 1906 which remains the precedent today. It is
not a black letter rule, but it has as much force and effect,
absent a black letter rule, as the Senate rule which is a black
letter rule. Both houses properly at this point have the same
rule, the same interpretation; namely, that a quorum is a
majority of those living and sworn.
It wasn't always that way. Prior to the Cannon ruling, it
could be a majority of those living. And so when Speaker Joe
Cannon in 1906 made the ruling, which was not appealed, he
cited the length to which the Senate had gone since the Civil
War, where there were elected Senators as there were elected
House Members who were not sworn, because of the secession of
the Southern States.
Since 1906, the two houses have been consistent in this
respect, to my knowledge, since then and since this last year
when The House invited the Senate to join in the joint
committee. The Senate has not specifically addressed this
question of massive incapacitation, although it does affect the
Senate as it does the House.
The Senate doesn't have the luxury of filling seats, where
Senators are incapacitated, through Governors' appointments.
That only comes when the seats are vacant. So in this respect,
the Senate and the House are in the same boat, and hopefully
whether there is a joint committee or other dialogue, the two
houses will approach this in a thoughtful and perhaps
consistent way.
In the Cox-Frost meeting, I was asked by Mr. Cox, ``All
right, what would happen if the Speaker were called upon to
rule, there being no black letter rule?'' I said, ``The Speaker
would abide by the Joe Cannon precedent of 1906 because that
precedent has the force and effect, as it should, of an adopted
rule of the House.''
And the question then was, ``Well, what if there was an
appeal from that ruling? What would the quorum requirement be
if Speaker Cannon or any other Speaker chose to depart from
precedent without a rule of the House, without a Rules
Committee coming in, analyzing it, and reporting to the House;
but rather, the Speaker unilaterally , based on the exigencies
of the disaster, of the catastrophe, thought that the national
interests required him to make a ruling that a lesser quorum
could suffice, even though there were incapacitations and not
deaths?''
And I said, ``Well, the Speaker, if he did make such a
ruling, it would not be on my advice; and if he were to make
it, it would be appealable, and the vote on the appeal would
require a quorum of the House as established by precedent up to
that point, those living and sworn. So the Speaker's ruling
wouldn't be final until the House, with a quorum present,
assuming an appeal, had determined the validity of the
Speaker's ruling.''
So the task force, I think Mr. Frost will agree, stopped at
that point and said, ``well, we know that. What we want to do
in the time we have is to recommend bipartisan rules changes to
the House, to the extent that the House can and has time to
look at what we will all agree on is not only bipartisan, but
where we have had enough time to analyze the issues.''
It was clear at that point, in July of 2002, that there was
perhaps not time to immediately analyze this question of mass
incapacitation; but we were asked to cooperate with staff,
bipartisanly to look at rules change language, while also
looking at the question of the constitutionality of the effort,
if there were an effort made by the House to adopt a rule
without a constitutional amendment sanctioning that step by the
House.
All of those questions, as posed on the graphic, are
legitimate questions. Is a rules change of this sort
constitutionally infirm? I don't have a clear answer.
The Constitution carves out, as my submitted statement
suggests, two areas--and the graphic showed that--where the
House can, with a smaller than majority, do certain things. One
is adjourn from day to day. Two is to compel the attendance of
absentees. That has been built into the Rules of the House
since the first Congress.
Can the House adopt this kind of incapacitation rule
constitutionally? Some would argue that compelling public
interest and the Nation's very existence, coupled with the
conferral of Article 1 authority on the Congress to wage war
and to provide for the common defense, would be so overwhelming
as to suggest that consistent with that conferral of authority
in Article 1, the Congress, the House, could and should,
without necessarily having a specific constitutional
permission, proceed to consider and adopt a rule with respect
to incapacity.
That is part of what we want to raise as the issue. We
don't have the definitive answer. The subsequent questions that
are raised, are again all legitimate. All Members take an oath
to support and defend the Constitution of the United States
against all enemies, foreign and domestic. Does it put a
responsibility on the Members of the Rules Committee to
seriously consider and agree that, yes, the House can, because
of this overwhelming national interest, proceed? Can the House,
without a direct constitutional amendment, adopt such a rule?
If the House were to wait and adopt such a rule during a
catastrophic circumstance, clearly then its effort and its
resulting work product would be questioned. I am not saying
that the legislation enacted under a rule adopted during a
dispassionate period of time such as the present would
necessarily be less subject to collateral challenge.
Clearly the Frost-Cox task force realized that this
discussion was going to happen. And it is right for it to
happen now, because there is not yet a catastrophic
circumstance.
And it is right to ask and it is right to bring in
constitutional scholars to answer the third, fourth, and fifth
questions that were raised on the graphic; namely, who could
challenge the rule itself or a law enacted thereunder, who--
other than the House, who could challenge? When could a
challenge be brought? And what would the courts say?
Those are questions to which we as Parliamentarians have no
dispositive answers. But if the House brings this rule to the
floor, or something akin to it, the question of its
constitutionality is framed for the House and is under the
precedents decided by the House by the vote on the adoption of
such a rule.
Let's assume that--a draft of this sort is reported from
the Rules Committee and brought to the House as a privileged
resolution amending the rules of the House, and a Member were
to make a point of order. ``Mr. Speaker, I make the point of
order that this rule is unconstitutional.'' The Speaker's
response--there is plenty of precedent for this, although not
under these precise circumstances--would be that the House by
voting on its rules, on the merits of the rule, determines and
incorporates all of the arguments on constitutionality. The
Chair does not make a threshold ruling which would be
separately and preliminarily appealable.
So I wanted you to have that background. If I were--in the
Parliamentarian chair, advising the Speaker should such a rule
come to the floor, and a Member were to make a point of order
against it on constitutional grounds, the House does not have--
a threshold mechanism for separately arguing and determining
constitutionality.
That is, the compelling reason for being here in the Rules
Committee today. The Cox-Frost task force envisioned it,
realized that it was too complicated to make a firm
recommendation in the time that it had.
Mr. Frost made the comment a few moments ago that perhaps a
constitutional amendment is not needed on the question of
whether the House can do this by rule. You raised the key
question for this meeting today. I don't know the answer to
that question precisely.
The constitutional amendments we have seen address the
question of appointment of Members, may also address the
constitutional sanction for the House to proceed in this area
as a further carveout to conduct business with less than a
quorum. I am not aware that any of the precise drafts, the
Brian Baird draft, the Lofgren draft, the Rohrabacher draft,
the Larson draft specifically empower the House to make these
rules changes. The threshold question in Mr. Dellinger's
testimony is compelling in this area. It is certainly
challenging for the Rules Committee today.
With that background our office has been available. We are
not the architects of the rules change, of the draft that you
have seen, and clearly there are areas for discussion in that
draft. It is important that there be a starting point.
So the question of the Speaker's role in determining a
catastrophic circumstance--as a nonpartisan, I couldn't agree
more with Mr. Frost--that in a determination of a catastrophic
circumstance triggering such a rule, the Speaker be the one to
trigger the implementation of such a rule! What evidence, what
testimony, would he need to rely on? What concurrence or
consultation role would need to be built into the rule, or into
the legislative history underlying the rule, is the other
essential ingredient for this committee to examine.
The rule draft, as I recall, says that if the Speaker
invokes the catastrophic circumstance standard, that it not be
appealable. That is necessary, because if his invocation of a
circumstance which would allow a smaller quorum to operate were
appealable, the same conundrum would exist, as I said earlier
that a majority of those living and sworn, quorum of the full
House would be required to allow the Speaker's invocation of
that new standard.
Clearly the question of how and when the Speaker invokes
the rule is very technical and very important. We thought the
notion of the premise, the final test of whether there are
incapacities should be attendance in the House. The built-in
safeguards in the draft that you have seen against an
inappropriate invocation of that rule are already in the
Constitution. If the House saw potential incapacitations, the
House could adjourn from day to day with less than a quorum,
and could deny the Speaker the ability to trigger this
incapacitation rule by less than a quorum. In addition to
adjourning from day to day, the House can also, by less than a
majority, compel the attendance of its absentees, which is the
very premise upon which a Speaker's declaration of incapacity
would be decided.
So clearly the challenge to your question is, yes, there
are constitutional issues. Two, what should the rule guarantee
as far as the protections so that any Speaker would not be able
to utilize the rule for other than promotion of the public
interest.
The Chairman. Do we want to hear from John or Tom?
Mr. Johnson. Absolutely.
The Chairman. We would love to very much.
[The prepared statement of Charles Johnson follows:]
Prepared Statement of Charles Johnson, Parliamentarian, U.S. House of
Representatives
Chairman Dreier; Ranking Minority Member Frost; and distinguished
members of the committee: I appreciate the opportunity to participate
in your review of this very important matter.
The prospect of mass incapacitations among Members of the House
raises serious questions. From a parliamentary perspective, the most
immediate of these relate to the quorum requirement.
What is ``the House''?
The Constitution requires the presence of a majority of the House
to do business. However, just as the Constitution leaves it to the
House to determine what is business,\1\ so also does it allow the House
to determine what is the House. Thus, in attempting to discern within
precisely what number the Constitution requires a majority, the seminal
precedents of the House on composing a quorum begin with the question
``What is `the House'?''
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\1\ For example, over time the House has determined that none of
the following constitute business requiring a quorum; the opening
prayer, the administration of the oath of office to a Member-elect,
certain motions incidental to a call of the House, or an adjournment.
Indeed, by adopting clause 7(a) of rule XX the House has determined
that the mere conduct of debate, where the Chair has not put the
pending proposition to a vote, is not ``business'' requiring a quorum.
---------------------------------------------------------------------------
On a clean slate, this question obviously could admit more than one
answer as sensible. For example, the House could decide to measure its
whole number by the number of its seats. As it happens, the House has
chosen to establish its whole number as the number of its Members,
including all persons ``chosen, sworn, and living'' (excepting, of
course, any whose Membership has been terminated by resignation or by
action of the House). The precedents that record the development of
this living-and-sworn standard \2\ are most instructive. They are
abstracted in the attachment.
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\2\ Hinds' Precedents, volume 4, sections 2889 and 2890, which
record the events of March 16, 1906, and April 16, 1906, respectively.
---------------------------------------------------------------------------
Until 1890 the House viewed that the Constitutional requirement of
a quorum made it necessary for a majority of the Members to vote on a
matter. Under that practice, a large faction of Members might break a
quorum simply by refusing to respond to the call of the roll, even
though present.\3\ With the historic ruling by Speaker Reed \4\ to the
effect that Members present in the Chamber but not voting may be
counted in determining the presence of a quorum,\5\ that practice
changed. Speaker Reed's ruling was upheld by the United States Supreme
Court in United States v. Ballin.\6\ The Court declared that the
authority of the House to transact business is ``created by the mere
presence of a majority'' (emphasis supplied). Since 1890, the point of
order regarding lack of a quorum has been that a quorum is not present,
not that a quorum has not voted.\7\
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\3\ Hinds' Precedents, volume 4, section 2977.
\4\ Codified in clause 4(b) of rule XX.
\5\ Hinds' Precedents, volume 4, section 2895.
\6\ 144 U.S. 1 (1892).
\7\ Hinds' Precedents, volume 4, section 2917.
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What is a quorum?
A quorum may be expressed as a fraction. The numerator is the
number of Members who are present. The denominator is the number of
Members who are extant. Because the issue in Ballin was Speaker Reed's
method of counting the number of Members present, the decision of the
Supreme Court addressed the numerator of this fraction. In dictum the
Court examined the question ``how shall the presence of a majority be
determined?'' and observed that, because the Constitution does not
prescribe any method for determining the presence of such majority, it
is within the competency of the House ``to prescribe any method which
shall be reasonably certain to ascertain the fact.''
Thus in 1906, consistent with the dictum in Ballin, Speaker Cannon
employed the still-current method of counting the number of Members
extant. After reviewing the perspectives of his predecessors across the
19th century and with special regard for the considered judgment of the
Senate on the same question,\8\ Speaker Cannon held that once the House
is organized for a Congress ``a quorum consists of a majority of these
Members chosen, sworn, and living, whose membership has not been
terminated by resignation or by the action of the House.'' \9\
---------------------------------------------------------------------------
\8\ Since 1864, clause 1 of Senate rule VI has read as follows: ``A
quorum consist of a majority of the Senators duly chosen and sworn.''
\9\ Hinds' Precedents, volume 4, sections 2890; Cannon's
Precedents, volume 6, section 638.
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Alternate standards
Modern prospects of catastrophe raise the question whether a
standard more discriminating than ``living'' might be necessary or
appropriate under some circumstances. One of the challenges of the
``incapacitation'' issue is whether the House might legitimately shift
between alternate approaches to calculating the denominator of the
quorum fraction. Obviously any such dynamism in calculating ``the
House'' would need to occur not merely on opportunistic bases but,
rather, under appropriately certified catastrophic circumstances.
During the meetings of the Cox-Frost task force on continuity of
legislative operations in 2002, the Parliamentarian was asked whether
he ever would advise the Chair to depart from the living-and-sworn
precedent in the event of a catastrophic event that were shown to have
disabled a large number of Members without necessarily establishing
vacancies in their seats. Could the Speaker unilaterally change the
approach to the constitutional quorum requirement that has been
consistent in both Houses since 1906? The Parliamentarian acknowledged
that the Constitution empowers each House to adopt and interpret its
own rules and that the House is not necessarily bound to retain the
approach established by Speaker Cannon's 1906 ruling (not appealed) or
to maintain consistency with the similar Senate rule, but advised that
any ruling by the Speaker effecting such a change in approach would be
subject under rule 1 to an appeal to the full House and, if a record
vote were had on that appeal, a quorum consisting of a majority of
those living and sworn would be necessary either to sustain or to
overrule the Speaker's ruling. (Even if a ``runaway'' Speaker were to
take the further position that his ruling was not subject to appeal,
that ruling of nonappealability logically would be itself subject to
appeal). In the absence of a proper quorum among those living and sworn
to dispose of the appeal, the House would be unable to continue its
business.
The Parliamentarian believed that the Speaker should not be advised
to depart from the precedents of the House in this area by a unilateral
ruling, even under catastrophic circumstances tending to demand that
the House be able to conduct legislative business. Rather, the House
should consider--preferably in advance--what it might do in the event
of such a catastrophe, addressing the contingency by a change in the
standing rules adopted by the whole House in a dispassionate atmosphere
with a proper quorum present. The constitutional advisability of such a
rules change initially would be for the House, in its collective
wisdom, to debate and determine by its vote on the proposal. The
possible vulnerability of such a rule to collateral challenge in
federal court would need to be evaluated in light of existing case law
such as Ballin,\10\ Michel,\11\ and Skaggs.\12\
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\10\ 144 U.S. 1 (1892).
\11\ Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
\12\ Skaggs v. Carle, 110 F.3d 831 (D.C. Cir. 1997).
---------------------------------------------------------------------------
One must question whether the constitutional latitude noted in the
dictum in Ballin is wide enough for the House to set a smaller number
than a majority of Members living and sworn to do business. In section
5 of article 1 of the Constitution, the founders addressed smaller-
than-majority quorums. They specified two items of business that may be
transacted by a smaller number than a majority of the House. Those two
items are adjourning from day to day and compelling the attendance of
absentees. Whether a third item--an item like re-basing the whole
number of the House in the wake of a catastrophe--validly may be added
to that category without amending the Constitution is a very serious
question.
The holding in Ballin validated Speaker Reed's noting the actual
presence in the chamber of Members who chose only to lurk rather than
to record their position or their presence. Speaker Reed did not find
merely that the whereabouts of these Members were unknown. Rather, he
found that they actually were in the chamber of the House observing the
proceedings in person. The dictum in Ballin lends scant support for the
proposition that methods of counting those present may extend beyond
the most ordinary connotation of presence, to wit: physical
attendance.\13\
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\13\ Another consideration is that neither the Constitution nor the
Ballin decision contemplates any notion of ``virtual presence.'' The
founders provided for Houses of Congress that ``assemble,'' and
``meet,'' and forge bicameral consent to adjourn for any extended
period or to meet elsewhere. They provided for Houses of Congress that
keep journals, and adjourn from day to day, and easily admit votes by
the yeas and nays. Even if the Houses chose to approve their journals
less frequently than every day, the availability of daily votes by the
yeas and nays on adjourning, alone, should rule out any notion that the
founders contemplated any 18th-century analog to the ``virtual
presence'' that today might be achieved by proxy or by teleconferencing
or by discounting incapacitated Members.
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For this reason, if the House were to devise a method of
recalculating its number of the purpose of computing its quorum that,
under specified catastrophic circumstances, departed from its settled
living-and-sworn standard, then it would do well to focus on physical
attendance as the measuring device. In catastrophic circumstances, the
exercise could amount to discerning what has become of the House.
I am grateful for your attention and will be pleased to engage any
questions you might have.
STATEMENT OF JOHN SULLIVAN, DEPUTY PARLIAMENTARIAN OF THE
HOUSE, U.S. HOUSE OF REPRESENTATIVES
Mr. Sullivan. Thank you, Mr. Chairman, members of the
committee, I have taken some time to go over the discussion
draft very closely, and I sense that there will inevitably be
questions about it. So if it is all right with the committee, I
will just make observations on it.
The Chairman. Please.
Mr. Sullivan. As I think of it very simplistically, mass
incapacitation really creates two primary problems. One is with
respect to the quorum and the ability of the House to move at
all, and the other is with respect to representativeness, the
need to replenish membership.
The discussion draft as I see it addresses the latter
concern, the replenishment, only in one way: it would put the
House in a position to move forward, for instance, to declare
seats vacant, where they knew they ought to be declared vacant,
and thereby arm the Governors with their special election writ
authority. But otherwise it is focused entirely on the quorum
problem.
The idea in this discussion draft is to establish a
procedure that will let the circumstances produce a change in
the denominator of the quorum requirement and let the
circumstances largely speak for themselves. The method that it
chose is to use the ability of Members to attend the Chamber as
a measure of who exists or who is available for duty.
It sets up a series of hurdles in which the House tries
real hard to gather a real quorum among the 435-seat House--
218--and in stages. You don't move on to the next stage unless
a quorum is wanting. The first step is that there be revealed
the absence of a quorum, perhaps on a normal vote by the ayes
and nays, if fewer than 218 are recorded either yes or no or
present. After that, the rule for this provisional number might
be used to actually produce a result.
The next step that has to be exhausted is the use of one of
the motions to compel the attendance of Members. One of the
things that the Constitution allows a number smaller than a
majority to do in the House, under the Rules of the House, 15
Members can dispatch the Sergeant at Arms to round up
absentees.
Mr. Frost. Excuse me. Is there a requirement that there be
at least 15 Members?
Mr. Sullivan. The motion requires 15 yea votes. So a 15 to
14 vote, a 15 to 1 vote would do, a 15 to nothing; it could be
15 members in the Chamber. If they voted aye, it would.
Mr. Frost. If it were fewer than 15 Members, the House
could not act?
Mr. Sullivan. The Constitution gives the House permission
to ordain some small number; here the small number that the
House has ordained is 15. The usual way that you get a vote in
the House--object to the vote on the ground that a quorum is
not present, and make that point of order--triggers the yeas
and nays on the pending question. But it also theoretically
dispatches the Sergeant at Arms to tell Members you need to get
to the Chamber. So that level of rounding up Members will be
afoot in any event.
Mr. Frost. If I may interrupt, Mr. Chairman. I apologize.
But I have spent, as you know, I have spent a great deal of
time on this issue and thought about this issue a lot. And we
are--you are referring to rule XX, clause 5(a), I believe. And
if we had a situation where there were only six or seven or
eight Members remaining here in Washington, or wherever the
House would meet, they could not invoke this rule?
Mr. Sullivan. That is right. This rule requires exhaustion
of--in the middle of the discussion draft there is a reference
to paragraph (a) or (b); that is, to 5(a) and (b). And under
this discussion draft, if the House were unable to dispose of
the compulsory motion, the machine wouldn't work. That is
right.
Mr. Linder. Could a statement be done under UC, so if two
people are here they could do it?
Mr. Frost. So it is only if someone asks for a recorded
vote? It is important to look at every little piece of this,
Mr. Chairman. I only want to make one other statement. My
concern from the beginning has been public confidence in the
actions of the House, whatever size that House is, and as to
whatever circumstance. I think it is essential to the
continuation of our democracy that the public have confidence
in us, whatever size body is acting, that it is doing so in the
national interest.
The Chairman. Your point is obviously a very good one. What
confidence can they have in a three-Member House of
Representatives? I think that is a very fair point to raise.
Mr. Sullivan. So those first two steps, the failure of a
quorum in the first instance, and the exhaustion of an attempt
to compel the attendance of Members, sets the stage for the
three real hurdles of the process: a staged first lengthy
quorum call. There will a plan for its length, but some real
hard attempt to gather 218.
The Chairman. Repeated quorum calls?
Mr. Sullivan. It could be. But it has to span a certain
length of time to put the Speaker in the position of deciding
to enter the finding or relay the report or whatever it will
end up being. The big blank in the middle of the page, pulling
the trigger, saying it looks like we are going to use this
provisional number machine that we have adopted in rule XX. And
then that, the Speaker's invocation of the machine, is followed
by yet another, probably congruent-in-length, quorum call to
see whether the House can get its ordinary quorum.
If this five-stage process goes through to its fruition,
then the bottom line of the rule is that it cranks out a
provisional number of the House, some number to use instead of
435.
Mr. Frost. The bottom part of the fraction, the
denominator.
Mr. Sullivan. That is right. And so if, after all of these
very sincere attempts to gather as many Members as possible,
the House is left with 100, then that would be the provisional
number of the House, and a quorum would be 51.
It uses the circumstances, the ability of Members to
respond, as a way of judging what has become of the House.
The technique that is used here is to employ tools that
don't require a quorum, so we don't get trapped in a circle.
One of them is the Speaker's unappealable invocation in the
fourth step, the entry of the finding that catastrophic
circumstances are afoot. The other is the ubiquitous
availability of a possible motion to adjourn adoptable by a
majority of whoever is there.
That is the chief strength, that is the chief protection in
this discussion draft is that--well, first of all, the
procedure can't be triggered accidently. You have to really try
to get into this machine. It is multi-staged for that purpose.
And the ultimate strength is it can be aborted simply. It can
be aborted during the first lengthy quorum call by adopting a
motion to adjourn, or wait, even if you were to wait and see
whether the Speaker were going to make the invocation, that
same tool is contemplated during the second lengthy quorum
call.
The Members could say, we think that we should take a
breather here. And a motion to adjourn would wind the clock
back to zero on this whole process. The House would come in on
whatever day it adjourned to and be in the same position it was
before. It also is self-sunsetting. At the end of the
discussion draft, it says that when the membership who are
available are enough to make a quorum in the real number of the
House, whatever that might be, then this provisional number
lapses. As it is currently configured, that sunset is somewhat
Draconian because if--let's say that no Members are dead and
the actual number of the House to which we will return is 435--
we would snap back to that when the 218th Member arrived.
But at that point, you would need to maintain perfect
attendance to maintain a quorum. So one of the rough edges in
this discussion draft that Members might want to dwell their
attention on is whether it is too Draconian and whether some
other point should be the snap-back-to-normalcy point, so as
not to leave the House in a position where it needs perfect
attendance to do anything.
Obviously the weakness, the biggest weakness in the
discussion draft is that it has got blanks in it, and one great
big blank in the middle, and that is--that blank is where the
Members would address the potential for pretextual use of the
process.
The ways that we have kicked around to address that,
really, number two. One is to attempt to specify parameters of
catastrophe in some way that will allow objective observers to
say that that is, and that isn't. And it is a self-reviewable
question.
The other way, and the way that I have spent more time
thinking of, so far at least, is to invest in some ministerial
agent the prefatory role of an arming, cocking the hammer for
the Speaker, to pull the trigger to go into the second lengthy
quorum call, perhaps the Sergeant at Arms, when advised by the
Sergeant at Arms that catastrophic circumstances are what is
causing this problem. That is the model that the House used in
the so-called snow day authority in clause 12 of rule 1.
It is an interesting contrast. Two of the things that the
House adopted at the beginning of this Congress to address
elements of continuity are the emergency recess authority of
the Speaker, and the authority of the Speaker to shift the
convening time of the House if there is a problem.
In the former case, if there is an immediate problem, like
suddenly the ventilation system of the House has been infested
with contagion, if the Speaker is advised of that by anybody--
it could be his staff, it could be Mr. Frost, for that matter--
that immediately arms him with the authority to say that the
House will stand in recess subject to the call of the Chair,
even if a question is pending. Normal recess authority can't be
used while a question is pending.
By contrast, the authority for the Speaker to say on Sunday
night, ``We ought to convene tonight because Washington is
going to get 27 inches of snow in the morning and I am not sure
we are going to be able to convene at the appointed time
tomorrow morning,'' to use that authority the Speaker needs a
prefatory report from the Sergeant at Arms to the effect that
there is an imminent impairment of the place of convening; that
he certifies that the House might not be able to convene Monday
morning, and it is advisable to convene Sunday night and make
some arrangement to bridge that snowstorm or that ricin attack
or whatever it might be. That use of the ministerial agent in
rule I is what got me thinking about using a ministerial agent
as the surety in the middle of this discussion draft.
But another way to go might be a way to specify the
parameter of catastrophe that would justify the Speaker's
invocation of that second lengthy quorum call----
Mr. McGovern. What happens if there is no Speaker?
Mr. Sullivan. One of the rule changes that the House
adopted at the beginning of this Congress was that in the event
that a vacancy in the Office of the Speaker, including his
inability to exercise his office, not necessarily his demise,
then the next person on a list--that is placed in a secure
location--will be the acting Speaker pro tempore, pending the
House's election of a successor.
Mr. McGovern. What if you have a situation where, you know,
there is nobody from the majority party here, and all you have
left are Members of the minority party?
Mr. Sullivan. What we do at the organization of a new
Congress where there is no Speaker, is the Clerk takes the
chair and recognizes for nominations from the floor to elect a
Speaker.
If there were a case where the list of Speakers pro tempore
in waiting is exhausted, I think we would ask the Clerk or the
successor Clerk to take the chair and entertain nominations for
the office of Speaker.
The Chairman. From those Members who are remaining?
Mr. Sullivan. Yes.
The Chairman. Thank you. Let me--we have obviously begun,
and we want this to be informal, because we are having a
discussion here which we are getting into some very important
points.
Do you want to add anything, Tom?
STATEMENT OF TOM DUNCAN, DEPUTY PARLIAMENTARIAN OF THE HOUSE,
U.S. HOUSE OF REPRESENTATIVES
Mr. Duncan. I thought that I would add, very briefly, a
historical note on how the House during the Civil War evolved
to deal with this issue. The 36th Congress had 237 Members from
all of the States prior to 1861. After that time, and the
Southern States had seceded, the House in the 37th Congress had
only 183 Members, in effect subtracting the former
Representatives from the Southern States, because as far as the
House was concerned, those States had not chosen Members to the
House and The House had no knowledge of the States sending
people to Washington unless they appeared.
They effectively reduced the denominator at that time and
The House treated that as the standard, being chosen and
living. That 1861 ruling laid the groundwork for the rule in
1906. I thought that may be useful.
The Chairman. Thank you for that. Let me just say that a
lot of thought has gone into this by a lot of people. There are
still a lot of questions. As I was listening to your comments,
there are a few questions I have. Then I want my colleagues,
Mr. Hastings and Mr. Frost and Mr. Linder and Mr. McGovern, to
ask further questions as well.
We talked about the rule of 15 when it comes to telling the
Sergeant at Arms to seek Members who are not present. I am just
wondering, when has that been utilized in the past? I don't
remember myself----
Mr. Johnson. It really is a little bit of a relic. Because
under our rules now, the only business requiring the presence
of a quorum is pursuant to a vote, and the so-called automatic
roll call rule, clause 6 of rule XX, has its own built-in
mechanism. It doesn't take 15. Any one Member objecting
requires the Sergeant at Arms to go out and round up Members by
virtue of the operation of that rule. So the rule of 15, while
it is there because the Constitution invites a rule to be
there, the more frequent practice is to utilize the automatic
yea and nay vote to, where necessary, tell the Sergeant at Arms
to go up and round up absentees.
The Chairman. We have seen a lot of changes take place on
this whole issue of doing business and a quorum as it relates
to it. We know in the past debate could not proceed without a
quorum being present, and I just wondered what thoughts you
have as to where we are going on this issue of doing business
as it relates to a quorum.
Mr. Johnson. Our prepared statement does allude to this
evolution.
The notion that debate is no longer business requiring the
adoption of a quorum came into the rules in the 1970s. It was a
major change to allow the House to conduct its debates
without--repeated points of no quorum during general debates.
There are certain safeguards that allow one point of no quorum
in the Committee of the Whole during general debate at the
discretion of the Chair and one during the 5-minute debate but
not again until the Chair puts the question to a vote. That is
the key. Voting is obviously business. You cannot deny that a
vote is business of the House.
The Chairman. What is your interpretation of the way that
has worked? You just described that as a slightly different
definition over what it was in years past and that being the
ability to compel that a quorum was present at any point during
debate. Do you think that has worked well?
Mr. Johnson. Yes. The House has changed in addition with
its ability to cluster and postpone votes, but I have
observed----
The Chairman. I remember here fighting that in the past;
and now, of course, it is now part of the rules instruction
that was put into place. We used to argue--and this was back
when I was sitting on this side--the notion of having length of
time between debate on amendments was not a healthy thing and
we should compel a vote on that amendment following the debate
of that amendment, rather than doing a clustering procedure.
Mr. Johnson. It is still a compelling argument under
certain circumstances.
The Chairman. Thank you very much. I appreciate a little
vindication there.
Mr. Johnson. So the notion that debate does not constitute
business, with closed circuit television and other abilities of
Members to observe debate, has allowed the House to facilitate
its business. But I don't think the House could adopt a rule
saying that certain votes are not business.
The Chairman. You mentioned closed circuit television, so
that just sparked something else for me.
A couple of Congresses ago, we got into this big debate
about what would be tantamount to a virtual Congress and this
issue of--there were a number of people who came, I remember,
before us arguing that technology--I come from California, and
technology is very important issue, the technological changes
that we observed, and I spend a lot of my time promoting
technological changes and advances. Some people argue that we
should use that technology to allow people to cast votes from
their congressional districts or elsewhere.
Part of the question gets to the issue that we are
discussing here today, and we have successfully beaten that
back, talking about the importance of interaction. But the
question really centers around on this issue of incapacity in
response to catastrophe. What do you think would be a
responsible way for us to go in light of these technological
changes that have taken place that do create the potential for
some sort of virtual Congress?
Mr. Johnson. I think footnote 13 in my prepared statement
addresses that directly.
The counterargument is that the Constitution and the
Founders of the Constitution and Jefferson's Manual all
conceive of the requirement of collegial meeting, of a physical
presence and attendance. That is constitutionally based, I
don't think an electronic capability should depart from that.
The draft rule is based on securing actual attendance and the
documentation----
The Chairman. Obviously, I completely concur with that. I
think it is a very interesting commentary that as we look at
all of these technological changes that have taken place over
the last several decades that the notion that the Framers had
of ensuring that there be that physical interaction is an
important one, and I am glad that it is being retained. Mr.
Hastings.
Mr. Hastings of Washington. Thank you, Mr. Chairman.
Thank you for your testimony. It has been helpful and
continues to be helpful.
I had some discussion with some of my colleagues off the
record in a casual way to try to find a level of--since this
hearing is on incapacitation, let me ask you a couple of
questions. In your view, the House has the authority to change
the denominator; is that correct? We have done that in the
past.
Mr. Johnson. That is the first, most basic question here:
Does the House have that authority absent a constitutional
amendment conferring that authority? I think there is a
compelling argument that it does, if only because the
collateral challenge to a successful House effort in that
respect would not be immediate or perhaps not successful. So I
am not saying it should be a power play, but I think,
ultimately, the House, as the adopter and interpreter of its
own rules and given compelling national interest, would be well
advised to address a rule of this sort even at the expense of
subjecting it later on to a plaintiff who might complain about
a law enacted during such a session, but in the meantime the
Congress is here to respond.
Mr. Hastings of Washington. I just wanted to get that
directly on the record. Because that, to me, is the essence of
what we are grappling with, the idea about what the definition
of incapacitation is.
Mr. Sullivan. I think 1906 is a very interesting example on
that question. What was on the bubble in 1906 was the oath.
Nobody disagreed that the Speaker ought to back out of the
denominator a Member who had died and another Member who had
resigned, but two Members elect hadn't shown, and what was
being decided by Speaker Cannon in 1906 was whether those two
unsworn Members were or were not in the denominator of the
fraction. So he was deciding and that House was deciding how to
compose the denominator of that fraction at that time.
I think it would have been just as legitimate for him to
decide, let us not count bodies, let us count seats. The
denominator of the fraction is the number of seats apportioned.
He could have gone lots of ways. I doubt that he could have
said it is the Members chosen, living, sworn, and able to bench
press 200 pounds, but he might have been able to say the number
of Members chosen, living, sworn and able to answer a call
within 96 hours.
Mr. Hastings of Washington. Looking to your attachment,
when you talk about those 1906 rules, Speaker Cannon's
justification of that is he referenced the Senate rules. But he
also referenced in there in the Senate rules they did not
debate the issue of sworn or living one or the other. With that
in mind, it might be some value for us, since this is a huge,
huge step in the future, for us to put in our rules what the
definition or at least have a debate as to the rule change,
rather than let precedent guide us as to sworn and living and
so forth. There would be some value for us to do that because,
Charlie, in your testimony you said that these are precedents
that are well-founded and that is the way it is, but that
precedent is based upon an undebatable decision that was made
in the Senate. So it would at least have value for us to have
that debate as we pursue this.
Mr. Johnson. I think that debate is absolutely essential
and integral to this. You have to have that debate. If you
emerge saying we don't want to deal with incapacity, does it
make sense for the Rules Committee to have a resolution
amending the rules of the House saying, all right, a quorum is
the majority of those living and sworn? Is that the residual
approach your Committee should take if you can't find agreement
in this area?
It certainly puts into black letter form what has been a
precedent for almost 100 years. Whether it helps establish the
legitimacy of a work product by the House or allows people to
further question the lack of legitimacy if there is not such a
quorum because it is a black letter rule, Mr. Hastings, I
honestly don't think it makes all that much difference. I think
the key question is whether you want to go the further step and
allow a different number; and, if you do, I would certainly
recommend that it be a rules change, not just a
reinterpretation by the Speaker. But to maintain the status quo
and incorporate it as a rules change I am not sure is
essential, although it may be helpful.
Mr. Hastings of Washington. Well, the reason I say that--
and I don't know if it is in your testimony or Professor
Dellinger's testimony, maybe both--suggest that we do this now,
to have some debate to ward off some challenges. This one area
I think is a bit gray, and if we can make that more black and
white, it would be beneficial to us. That is the reason I say
that in that context. In other words, if we say by our rules
what that definition is, we arrive at it; and we say that
before--hopefully, we will never have a catastrophe like--then
we will have guarded ourselves from some.
Mr. Johnson. I can't disagree with what you said. I just
think that 100 years of precedent--While I do not necessarily
equate 100 years of precedent with a black letter rule, I
certainly give to it every bit of weight and would hope that
the House will respect the Speaker's ruling because it is
precedent just to the same extent they would respect it because
it is written down as an adopted rule each year.
Mr. Hastings of Washington. One last thing. There is always
an out when you have rules. Essentially, unanimous consent
agreements are suspension of the rules, which when we ever get
to this point, then, of some sort of definition of
incapacitation where you have a problem that the rules would
kick in where a quorum would be established, presumably with a
smaller number it would be easier to get a UC. You essentially
could do business by unanimous consent because you are
suspending the rules.
Mr. Johnson. Unless a vote of record countermanded that
unanimous consent request. I don't think The House could by
unanimous consent ignore the constitutional requirement for a
majority, but if The House acts by unanimous consent and no one
objects and there is no record to show absence of the quorum,
yes, the rules are suspended in every other respect.
Mr. Hastings of Washington. Mr. Frost brought up the issue
of 15 Members. Unanimous consent simply suspends the rules to
allow some sort of business or activity for a period of time.
The UC generally has, at least from what I have seen, a short
period of time to deal with a particular point of business. So
we still have that option that is available.
Mr. Johnson. There is always the presumption of a quorum
present when the House starts its daily business, and a lot of
unanimous consent business and voice voting and even division
is done clearly without the presence of a real quorum, but that
absence is never ascertained. Therefore, the business is
legitimate.
The Chairman. When I first came here, I was told that under
unanimous consent you could waive the Constitution.
Mr. Hastings of Washington. Should we put that in our
rules?
That is all I have. Thank you.
The Chairman. Mr. Frost.
Mr. Frost. Mr. Chairman, I want to mention something else,
because this was taken up during the deliberations of our task
force. Because of a quirk in the Presidential succession law as
it currently exists, this discussion of what constitutes a
quorum of the House of Representatives is extraordinarily
important. Let me explain.
Under the current Presidential succession law, if the
President, Vice President and the Speaker and the President pro
tempore of the Senate are all killed in a catastrophe and a
Cabinet member survives, that Cabinet member in the line of
succession becomes President. However, a subsequently elected
Speaker by a reconstituted House of Representatives would bump
that Cabinet member and become President. So that being able to
reconstitute the House and pick a new Speaker is very important
because that new Speaker could then become President if the top
four people in the line of succession were killed in a
catastrophe. Is that correct, Charlie?
Mr. Johnson. Yes, sir.
Mr. Frost. And we have not changed that Presidential
succession law. Some of us have advocated changing the
Presidential succession law to eliminate the bumping rights of
a subsequently elected Speaker just so you have certainty,
assuming that a Cabinet member was sworn, that the Cabinet
member would continue to serve as President, but that is not
the law as it exists right now.
Mr. Johnson. The Judiciary Committee has that jurisdiction
over such a bill. It would take a bill passed by both Houses
and enacted into law.
Mr. Frost. This is not just an academic discussion I would
say about how to reconstitute the House of Representatives or
how to make sure there is a quorum in the House of
Representatives. Because this reduced quorum House of
Representatives, if in fact we adopt a rule that permits a
reduced quorum, could be selecting the next President of the
United States in its vote for replacement Speaker.
The Chairman. Is there any bill on that now?
Mr. Johnson. I think there is an introduced bill. I am not
sure of the status of it. We think there is a bill that would
just eliminate the Speaker and President pro tempore, the
question being whether they are officers within the meaning of
the Constitution. The Constitution says Congress may by law
provide which officers of the United States may succeed, and
that bill takes them out. I think that is the only bill as we
sit here, but there may be others.
Mr. Frost. But the point is Congress has not acted on that.
So the Presidential succession law as it exists right now is
that a new Speaker selected by a House of Representatives of
diminished size under certain circumstances would become
President of the United States.
Mr. Johnson. Yes, sir.
The Chairman. Mr. McGovern.
Mr. McGovern. Let me just ask a couple of questions.
On this rule, the 15-person rule that you had talked about
before, where if somebody were to call a quorum vote 15 people
would have to be here, and you were asked what if there weren't
15 people here, and Mr. Linder said somebody could ask
unanimous consent and then the process could move forward. If
there were 12 people here and one of those 12 asked for a vote
of no quorum, does everything kind of stop?
Mr. Sullivan. Yes. The House is able to do only two things
when it lacks a quorum.
Mr. McGovern. Isn't that really a potentially significant
issue? I can imagine a situation where there were 10 people
here and let us say of the 10 people nobody in the leadership
of either party is here and somebody becomes concerned about
not just can we do this but if we can't move ahead will
anything we do here have any credibility?
Mr. Sullivan. That is a serious issue, and I think the
Members may decide that that second of these five hoops ought
not be in there for that reason.
Mr. Johnson. But the point I tried to make earlier was,
while that rule is in place, which says, in the absence of a
quorum, a majority comprising at least 15 Members may compel
the attendance of absent Members, that the absence of a quorum
is only determined when a vote is in progress under our current
rules. The House does not have separate ascertainments of
quorum for the most part during debate.
Mr. McGovern. But somebody could ask for a vote; right?
Mr. Johnson. Yes. But then the automatic rule of The House
in clause 6 of rule XX says that when such an automatic vote is
in place, then the Sergeant at Arms is required, under the
operation of that rule, to gather absentees. So you don't need
15 members telling him to do that.
Mr. Sullivan. The reason why it remains a problem under the
discussion draft is that the first hoop is failure of a quorum
at all, and the second one is the disposition of a specific
motion, not the automatic dispatch of the Sergeant at Arms on
the yea and nay vote, but rather the specific--a motion under
paragraph (a) or (b) has been disposed of. So the discussion
draft may be a little bit too energetic on that point.
Mr. McGovern. But it is an issue that, obviously, we have
to think about some more.
Just one other question. The chairman talked about being
from California with all the technology and stuff. I didn't
know there was a lot of technology in California. I thought it
was all in Massachusetts.
The Chairman. We are happy that you have some there, too. I
support it in Massachusetts as well as in California.
Mr. McGovern. But the other--when we are talking about
incapacitation, you could have a situation where Members are
home and are unable to get together. I mean, it could be a
breakdown of our transportation system. There could be all
kinds of things going on where it becomes impossible for people
to get from where they are to a place where they can meet
together.
I guess one of the concerns would be that if--let us say
you had 15 people that were able to get together in Washington,
other Members who weren't dead but couldn't get here couldn't
be part of anything and couldn't be part of any process,
whether or not that could be the basis to say we are going to
do the House business with 15 people. Everybody else, too bad.
I think that would raise some serious issues about the
credibility of what was going on here.
So he was talking about technology. At least that would be
one kind of issue that might be worth talking about. I
understand the reason--the concerns against it, but the idea
that somehow we would be able to function by using technology,
given the fact that Members may technically be incapacitated
because they can't get here but they are still alive and they
still represent constituents----
Mr. Johnson. It is a very valid observation. The definition
of catastrophic occurrence and the determination of it by
presence or absence would be dispositive. These Members were
just isolated but certainly willing and able to try to get here
or wherever.
The Chairman. If the gentleman would yield, the only
comment I would make on that is there is a grand total of 537
federally elected officials, the President and Vice President,
Members of the House and the Senate; and the Sergeant at Arms
would clearly have the ability to use virtually any resources
of the Federal Government whatsoever I believe in his quest to
get Members here. So when we talk about the need to--I am sure
you can talk about problems of breakdown of the transportation
system and other things, but I think that there are
extraordinary means that are available for use of dealing with
that.
Mr. Frost. If the gentleman would yield, while this is--I
don't believe this would actually occur under our current
system, there is at least the possibility of----
The Chairman. We are hoping that none of this will occur.
Mr. Frost. There is at least the possibility of rival
Congresses.
We have a long history in the south of having rump
conventions. This is a serious issue. You may remember in 1964
the State of Mississippi sent competing delegations to the
Democratic National Convention and the question was which
delegation would be seated.
Now the question is, what happens if you had 15 or 20
Members of Congress who were off at some location? Maybe they
were attending Aspen Institute or something. I won't get into
that in great detail, but they were off at some remote location
and they decided that they were the Congress and that you only
had five or six people somewhere else, maybe here in Washington
or some other location. I don't know how you deal with that.
What happens, Charlie, if you had competing groups of
Members attempting to constitute themselves in different
locations and act as the Congress?
The Chairman. And contemplate the Aspen Institute running
the U.S. Government.
Mr. Johnson. In 1965, there were competing candidates from
Mississippi to the House who filed election contests; and the
House, by judging the qualifications of its Members, decided to
seat those who had the certificates, but it went through an
examination in each--I think four or five of the districts. But
if two sessions suddenly materialized, the proper place would
be where the Congress itself has established that Congress
meet. Congress can only meet elsewhere than D.C. if two Houses
agree. So a rump session without preauthority by the two Houses
I don't think would be considered a valid session of the House
under Article 1, section 5 of the Constitution.
Mr. Frost. Even if it were a larger group that convened at
an agreed-upon place, the agreed-upon place is either here or
someplace else. If this building were destroyed, it would be
someplace else.
Mr. Johnson. This Congress on opening day for the first
time gave authority of the two Houses to meet elsewhere than in
the seat of government. So if now the two Houses adopted a
concurrent resolution, the House could meet elsewhere.
Mr. Frost. Are we required to adopt a concurrent resolution
permitting that Congress set forth an alternative location?
Mr. Johnson. Under the Constitution neither House can
adjourn for more than three days nor to any other place than
the seat of government without the consent of the other House.
That is why on opening day a concurrent resolution was adopted,
the two Houses saying that either House can adjourn to meet at
another place and then the House rule allows its Speaker or
acting Speaker to convene the House in another place. But any
rump group not acting under that authority I don't think would
be considered a valid meeting of the House.
The Chairman. Let me just say that the discussion draft is
going to continue to be discussed. You all have been very
helpful in providing us with a lot of insight, and one of the
things that we found from--at these discussions that we have
had is that, just as we pursue clarification, more questions
arise, and I think that today is no exception to that.
We do appreciate the attempt that we are going to make in
bringing about a resolution to some ongoing questions. We thank
all of you for the time and effort, and we will continue to
talk about this in the days and weeks and months and years to
come.
Thank you all very much and thanks to my colleagues for
your patience here.
The Chairman. Professor Dellinger, we are very happy to
have you as our constitutional expert, and we are pleased to
have your insight and thought on these issues. We know that you
were Solicitor General to President Clinton. The president of
my alma mater is dean of your law school. Pamela Gann is a good
friend of mine. Let me say, as I have to the parliamentarians,
your prepared remarks will appear in the record in their
entirety; and we welcome your testimony.
Mr. Frost. Let me add that my oldest daughter is a graduate
of the University of North Carolina at Chapel Hill, and they
have spirited contest.
STATEMENT OF HON. WALTER DELLINGER, DOUGLAS B. MAGGS PROFESSOR
OF LAW, DUKE UNIVERSITY, AND FORMER ACTING SOLICITOR GENERAL OF
THE UNITED STATES
Mr. Dellinger. Chairman Dreier and ranking members of the
Committee, in October of 1993 I was confirmed by the Senate to
head the Office of Legal Counsel, and shortly thereafter I
asked my predecessors in that office--all of the ones who were
around were from the other party, but I asked them to meet with
me in the secure facility at the Justice Department and got all
of them a one-day security clearance at the highest level to
tell me what they thought I really needed to know that wasn't
in the published opinions of the OLC. And very graciously Ted
Olsen, Bill Barr, Tim Flanagan, and Chuck Cooper all spent a
day with me bringing me to where I needed to be.
One of the first things they said was, do you have a book,
in case the President is incapacitated, on everybody's desk?
And I said I do not, and in change of party administrations
these things often get lost. And I realized that I needed a
book that was on the desk of the Attorney General of the White
House Counsel, the Chief of the Staff for the President, Chief
of Staff of the Vice President, that told everybody exactly
what to do and what sequence. The Secretary of the Cabinet
shall convene the Cabinet.
It became quite clear that death was much less of a problem
than incapacity of the President and the uncertainty that
accompanies a President who is incapacitated. Until we worked
through that process, I woke up many mornings at 4 a.m.
thinking this is my responsibility, and if I hear at 5 o'clock
that something has happened to the President and no one knows
who is supposed to do what, then it is my burden, and once I
had those books on everybody's desk, I felt better.
So I appreciate what the Committee is doing to look at this
issue in light of 9/11 and to understand that we need to do
this.
Basically, there are--if there is widespread incapacity of
House Members, basically, one of three things has to happen.
Either the House will be unable to act at all; or the House
will operate with temporary Members appointed in some fashion,
stand-in Members to fill out; or the House will act through a
reduced number of Members, which would have the advantage that
those people would have been elected from their districts or
with the disadvantage that they might be relatively few in
number. Those are the three choices.
I think not only is the first one of the House unable to
act unthinkable, it also would not happen. The country in those
dire circumstances would be ruled in some form or fashion, even
if it were by Presidential decree. There would have to be a
House. This is the body that shares responsibility for the
common defense, for taxing and spending, for raising and
supporting armies, for declaring war. These are matters that
must be taken care of in the event of a crisis of that
magnitude and would be taken care of.
So we are realistically talking about whether to operate
with temporary Members or to operate with a reduced number.
You have taken a very positive step by moving forward to
try to have elections as soon as practicable, and you all have
debated what is as soon as practicable, but it is clear that
that is the best device. The question is, what do we do in the
interim?
The reason I think it is worth considering whether to
operate with fewer Members--and I will mention that briefly
before I discuss why I think it is constitutional to do so, why
I think the courts are not likely to invalidate it, and finally
why I think there needs to be a bipartisan consensus before we
take such a step. I think, first of all, that it is presently
the result we have when there are a large number of deaths. We
would have, everybody knows, under the present rules a House
which would operate with very few Members. Given the
alternatives of rushing in temporary replacements or having the
fewer numbers operate, I think there is a case to be made for
the fewer numbers.
The decision of who those would be will be made either by
the Lord or by chance, depending upon one's faith, but they
would not be representative of the whole country, but they
would have been elected by the people in districts in a random
way, and I believe those men and women would step up to their
responsibilities, no matter how few they were, until the House
was replenished by elections. They would be experienced.
It is not the worst--the horror of a very small number is
not as great as we think. The first Congress consisted of 65
House Members and 26 Members of the Senate. They did, of
course, represent the whole Continental United States, but it
was a smaller number, and they passed the Judiciary Act under
which we continue to be basically be ruled.
I share the chairman's reluctance about amending the
Constitution. Edison once said, never do electrically what you
can do mechanically. If you can do it in a simple way, do it;
and it also has the advantage that----
The Chairman. Is that Edison or Madison?
Mr. Dellinger. Edison. Madison believed the Constitution
should be amended only rarely.
The question was put I think very well by Speaker Cannon in
1906 when he said that he looked at the provision and he said
the Constitution specifies that a majority of each House shall
constitute a quorum to do business.
This brings to the forefront the question of what
constitutes the House, what constitutes in a sense the
denominator of which the Members present in the Chamber are the
numerator, what constitutes the denominator. Now there is a
very good argument that the constitutional rule should have
been that it is 435 or whatever the full membership is, that
that is the House, is the number 435, regardless of
resignations or deaths or whatever. If the House had adopted
that rule, the courts and I think scholars would have said that
is one of the constitutional choices to determine what is the
House.
As the chairman noted, the House has had several different
views of what constitutes the House; and now it is the chosen,
sworn, living Members whose membership has not been terminated
by resignation or action of the House. Could the House choose a
rule that would exclude from the denominator incapacitated
Members?
Let us first think about why no Speaker or parliamentarian
has done that. They haven't done that in ordinary times because
it doesn't make sense to impose that kind of subject judgment
on the Speaker or the parliamentarian.
The nice feature of the existing rule is it is quite
objective. You can count the people there and the people who
are dead and you can count who is resigned and you know what
one more than half is, so you have got an objective way to
determine a quorum. But it is really for convenience that we
don't do that. You could eliminate the small number of
incapacitated Members in ordinary times, but it is not worth
the debate over doing it.
I think that in the event of an extraordinary catastrophe
it is within the power of the House to say we have a different
House now than we did the day before yesterday. A House that
has been decimated by catastrophic attack where we have
hundreds of Members who are incapacitated, it is a different
House, and we are going to have a quorum rule that says a
majority of what is now the House decimated by incapacitated
will be--of that it would be a majority of doing business.
I think there is a great advantage to adopting a rule now
if we can get really widespread and bipartisan agreement on it,
because you are acting now behind what one of the philosophers
calls the ``veil of ignorance.'' You don't know whose party is
going to be benefited, whose faction is going to be burdened by
this. You don't know.
What we really want to ensure in that time, as I think Mr.
Frost and the chairman said, is legitimacy. We want the country
to think that the actions of the government at this time are
legitimate. If you adopt a rule now, even though there could be
debate about whether it is the validity of the rule, if you
adopt the rule and the Congress then--the House then acts
according to that rule, you have got a lot of legitimacy that
you wouldn't have if you made up a rule on the spot.
We have an agreed-upon way of doing this. We don't know
what the party membership would be, who was left, so this is
how we agree to do it. So I would agree that it be done.
I think that the adoption of such a rule, if it were to be
challenged now that no one would have standing and a challenge
would not be right, I don't believe that a Member could
challenge the rule.
I should note that I argued Raines v. Byrd on behalf of the
United States, in which the Court, 7 to 2, rejected, standing
on behalf of Senator Byrd and Senator Moynihan who challenged
the line-item veto. It was later challenged by someone who
didn't get a benefit that had been voted by Congress.
That is the point in which after the fact when the
legislation goes into effect, and someone who is charged with a
crime was denied a tax benefit as a result of this smaller
Congress will challenge the validity of that, and the courts--
it certainly would have standing, and the courts would
adjudicate it. But in my view, the tradition is that, now, that
they would defer to the resolution made by Congress, rather
than making that resolution themselves.
There is some doubt caused by Bush v. Gore whether the
court was willing to step in with respect to a matter some of
us thought committed to Congress when it exercises its function
of counting the votes, and a court might adjudicate in order to
approve, in order to give some rubber stamp to the validity of
it.
Here is the issue about adopting a rule now. There is
understandable concern--given the sort of nature of the
partisan level of confrontation we have experienced in the
recent past, there is some concern if you adopt a rule now it
will be invoked in something other than this catastrophic
circumstance that we are all talking about, that a Speaker will
declare the existence of a catastrophe. That is a genuine worry
on the one hand.
Just saying that there has been a catastrophe, that is a
word we often use, unfortunately, in our public life. People on
both sides of the most contentious issues will say it is a
catastrophe if the other side prevails. There is a loosening of
that language.
So I would think what one would want to do to make this
rule palatable is to ensure that you really expanded the
definition of the trigger, that it has the incapacitation of a
large number of Members built into the rule and ideally in my
view would have some sort of bipartisan trick.
I fully realize that no Speaker, past or present, wants to
share power. It is not the tradition of the House. There is
more of a tradition in the Senate. But Speakers of whatever
party do not like to act in conjunction with the concurrence of
some other Member of the House, and no Speaker is eager to see
a precedent established whereby the Speaker with the agreement
of the ranking member of the other party, et cetera.
There may be ways around that. Because I think they would
be much more comfortable if one thought you are going to be
doing this only when it is a genuine emergency of the 9/11
variety and when there would be bipartisan agreement that we
should go to this radically reduced House.
Perhaps one way to do it is to allow the Speaker to make
the declaration but that a precondition of that Speaker's
exercising that power is some form of bipartisan agreement. I
think you are better suited than I am to figure out how that
should be done, but I think it is the best way to do it.
Once we work out the legislation you all have been
considering, we will try to replenish the House with elected
Members as soon as possible. What to do in the interim, I think
there is a lot to be said for doing it with a reduced number of
Members of Congress, rather than amending the Constitution to
bring in temporary replacements, which seems to me quite
awkward, and that it is best now done by rule so that the
country will be assured so, though it is 78 Members who are
exercising this power, that was the rule that was agreed upon
in a bipartisan understanding in 2004, and those 65 Members
will act--or 75 or 58, however many there are--will act until
their colleagues are no longer incapacitated or, in the case of
deaths, elections replenish the House.
That is basically the essence of my statement.
The Chairman. Great. Thank you very much. It is very
helpful, and I appreciate those thoughts.
[The statement of Mr. Dellinger follows:]
Prepared Statement of Walter Dellinger
Mr. Chairman, and members of the Committee, thank you for inviting
me to appear today. My name is Walter Dellinger. I am the Douglas B.
Maggs Professor of Law at Duke University; I am also a partner and head
of the appellate litigation section of the law firm O'Melveny & Myers.
The attacks against our nation on September 11, 2001, made clear the
need to address structural vulnerabilities that could impair the
functioning of the national government after a major terrorist attack
or other catastrophe. I am glad that this committee, and the entire
House of Representatives, have taken their responsibility to address
these issues. I hope that my perspective as a professor who has studied
the Constitution for over 30 years, and a lawyer who has advised past
presidents and attorneys general on constitutional issues, will be of
value as this committee continues its important work to ensure the
continuity, effectiveness, legitimacy, and representatives of the
legislative branch in the aftermath of a major attack or disaster.
In preparing to testify today, I have studied the relevant
constitutional provisions, court cases, and historical evidence on the
Constitution's quorum requirement and the House's rulemaking power. I
have also studied committee staff's drafts of proposals amending the
quorum requirement in House Rule XX. Finally, I have reviewed other
proposals aimed at ensuring continuity in government, such as the
Continuity in Representation Act of 2004, H.R. 2844, and various
proposals for constitutional amendments. I believe that an amendment to
the House Rules' quorum requirement not only would be constitutional,
but also will be a vital part of any solution to the continuity in
government problem. I believe that the draft rule amendments I have
seen go a long way toward filling that role, but fall short in certain
respects. More specifically, my conclusions, discussed in detail in the
remainder of these remarks, are that:
First, the Constitution would permit the House to adopt a
rule providing that a majority of non-incapacitated members shall
constitute a quorum to do business in the event of a major catastrophe
imperiling the ability of the House to otherwise function. The time to
adopt such a rule is now, in advance of any possible catastrophe, and
when the rule will have the added legitimacy of having been debated by
the entire House, and adopted in the clear absence of partisan motives.
Whether such a rule change is a better solution than any particular
constitutional amendment is a question I express no position on today.
But at the very least, such a rule is advisable as a stopgap measure
while possible constitutional amendments addressing the question are
debated by Congress and by the States.
Second, I do not believe that the propriety of such a rule
change would be justiciable by the courts. Rather, lawsuits challenging
such a rule will likely be dismissed by the courts as nonjusticiable
for lack of litigant standing, for lack of ripeness, or because such
cases would present a political question constitutionally entrusted to
Congress itself rather than to the courts.
Third, although the courts would have no rule in judging
such a rule, the Constitution imposes on the House a solemn duty to
make sure that any rule change is not only capable of addressing the
threats at issue, but also faithful to the principle of majority rule,
congruent with the Framers' constitutional plan, and precise enough to
prevent the manipulative use of the rule in situations for which it was
not intended. Because the goal of the rule change is to safeguard the
House's ability to function as a representative body when external
events have rendered the House otherwise unable to act, the rule must
be broad enough to include incapacitating events that we might not now
be able to forecast. But a rule aimed at safeguarding our country in
extremis ought not to be drafted in a way that would permit its use by
factions aiming for undemocratic results--constitutional legitimacy
demands that the rule be narrowly tailored in order to prevent abuses.
The proposals I have seen so far, unfortunately, do not quite succeed
on that count. As a result, I recommend that the Committee continue to
work on drafting a rule change that would be consistent and not subject
to partisan manipulation. More specifically, I recommend that such a
rule (i) have a clear and precise definition of the extraordinary
circumstances in which external events incapacitate large numbers of
Representatives, triggering the rule's taking effect; (ii) take effect
only upon bipartisan recognition of those triggering circumstances; and
(iii) provide that the extraordinary quorum rules cease operation
within a definite time period, unless the emergency circumstances are
periodically recertified by that bipartisan authority.
I. The Constitution permits the House to address the quorum issue by
rule
The quorum requirement comes from Article I, Sec. 5, cl. 1 of the
Constitution, which provides that: ``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members, and a
Majority of each shall constitute a Quorum to do Business; but a
smaller Number may adjourn from day to day, and may be authorized to
compel the Attendance of absent Members, in such Manner, and under such
Penalties as each House may provide.''
The House's rulemaking power comes from clause two: ``Each House
may determine the Rules of its Proceedings, punish its Members for
disorderly Behavior, and, with the Concurrence of two thirds, expel a
Member.''
Some terms in the quorum clause are clearly not open to debate.
When the Constitution requires a ``majority,'' it seems clear enough
that that means, as the dictionaries put it, ``more than half.'' Other
terms are more fluid and open to interpretation. The question is, who
is counted towards the majority, and a majority of what number. To
determine whether a given number of Representatives constitutes a
``majority,'' we calculate a fraction, with a numerator and a
denominator.
The rule establishing the ``numerator'' for the quorum
determination has changed significantly over the years. For many years,
the House did not count towards the quorum members present in the
Chamber unless they answered to a roll call--a practice changed in 1890
by Speaker Reed, who directed the Clerk to enter on the record the
names of Members present but not voting, and count them towards the
quorum. This practice was formalized on February 14, 1890, when the
House adopted a rule that: ``On the demand of any Member, or at the
suggestion of the Speaker, the names of Members sufficient to make a
quorum in the Hall of the House who do not vote shall be noted by the
Clerk and recorded in the Journal, and reported to the Speaker with the
names of the Members voting and be counted and announced in determining
the presence of a quorum to do business.'' That rule was upheld by the
Supreme Court in the 1892 case United States v. Ballin, and today's
House Rules persist in the practice.
The proposed rule considered today concerns the ``denominator'' in
the quorum determination--what constitutes the House from which a
majority must be present. Here, too, historical practice has varied.
Between 1861 and 1891, the House had a practice of counting all Members
chosen and living as the body from which a majority must be present.
Later rulings revised the criteria so that a quorum would consist of a
majority of Members who had been elected and sworn-in, and had neither
died, nor resigned, nor been expelled. I believe that each of these
methods of counting a quorum is constitutional, as would be the
proposal to include in the denominator only Members who are not
incapacitated, in the event of a serious catastrophe threatening
congress' functioning. In other words, the Constitution is flexible
enough to permit a number of different formulas for determining a
quorum--and the fact that Congress is empowered by the rulemaking
clause to adopt a relatively strict version of the rule does not mean
that it is prohibited from adopting a looser version.
This is not to say that there are no limits on the House's ability
to define what constitutes a quorum. As noted before, the
Constitution's use of the term ``majority'' is clear and unambiguous.
No matter what the House chooses to make the numerator and denominator
for the quorum inquiry, it is obvious that the House could not decide
that some fraction less than 50% was a majority. Nor, I submit, could
the House decide to exclude from the denominator properly sworn members
entitled to vote who have chosen of their own free will not to attend.
This is because the Constitution envisions a different method of
reconciling such Member non-cooperation with the House's need to do
business: the Constitution empowers the non-majority of the House that
is present to ``compel'' the absent Members' attendance--a power that
would be unnecessary if the House could simply count those absent
members towards the quorum's numerator or exclude them from the
denominator. Similarly, it would be unconstitutional for the House to
adopt a rule that eviscerated the quorum requirement by defining it out
of existence. For instance, a rule that chose for the denominator the
number of Members already present in the Chamber would be illegitimate.
Such a rule would mean that there was always a quorum--making a mockery
of the Framers' plan that there would be times when the failure of a
quorum did indeed prevent the House from doing business.
But within these restrains, the Constitution should be read as
conferring a fair amount of discretion on the House to determine from
whom the quorum must be drawn. It would be fine for Congress to decide
that a quorum consists of a majority of the statutorily-provided number
of Representatives (currently 435). It would be equally legitimate for
the House to exclude from the denominator those Representatives who are
dead, those who have resigned, those who have been expelled, or, as we
are discussing today, those who have been rendered temporarily or
permanently unable to discharge their duties as a Representative.
Article I, Section 5 simply is not so specific as to require or
prohibit any one of these ways of defining the quorum.
There is another reason why the Constitution must be read as
permitting this kind of rule change. The legislative powers that
Article I vests in Congress would be absolutely critical for our nation
to respond to the type of calamity that the rule change is designed to
address. It is Congress that has the constitutional power to ``lay and
collect Taxes,'' and spend and borrow money; to ``define and punish
Offenses against the Law of Nations''; to ``raise and support Armies''
and `'provide and maintain'' the Navy; to legislate regarding ``the
Militia''; to suspend the writ of habeas corpus when ``in Cases of
Rebellion or Invasion the public Safety may require it''; and, of
course, to ``declare War.'' Depending on the type and scope of the
catastrophe at issue, the immediate exercise of some or all of these
powers might be absolutely necessary to provide for the safety of the
citizenry and for the very continuation of republican, constitutional
government itself. It is simply inconceivable that a Constitution
established to ``provide for the common defense'' and ``promote the
general Welfare'' would leave the nation unable to act in precisely the
moment of greatest peril. No constitutional amendment is required to
enact the proposed rule change, because the Constitution as drafted
permits the Congress to ensure the preservation of government.
The Constitution's framers recognized that it was just as important
to empower the federal government to act properly as it was to prevent
the government from acting improperly. As Alexander Hamilton put it in
the Federalist Papers, ``[t]he public business must in some way or
other go forward.'' We must not forget ``how much good may be
prevented, and how much ill may be produced, by the power of hindering
the doing what may be necessary, and of keeping affairs in the same
unfavorable posture in which they may happen to stand at particular
periods.''
Allowing the Congress to simply cease functioning in the event of a
major catastrophe would serve not a single structural interest of the
Constitution. It would not serve federalism interests, because even a
congress much smaller than that authorized by law would represent the
nation's diverse geographic interests better than no Congress at all.
It would not serve the separation of powers, because even a greatly
diminished Congress would serve as a better check and balance on the
executive branch than would no Congress at all. (Indeed, the existence
of a functioning Congress might well prove critical to the very
survival of the executive branch: in the event of an attack that harmed
the President, Congress might be called upon under the Twenty-Fifth
Amendment to determine who is to exercise the powers of the presidency
if there is a dispute over the President's own capacity to discharge
the powers and duties of his office.) Finally, a nonfunctioning
Congress would not serve the cause of individual rights, because, in
the absence of congressional authority, the country would presumably
have to convert to some form of martial law--a kind of government
especially unlikely to respect due process and individual rights. In
short, whether or not a reduced quorum is desirable in normal
circumstances, it is absolutely vital to the constitutional scheme when
the alternative would be the total incapacitation of the Legislative
Branch.
In fact, a functioning House is so critical in times of emergency
that, one way or another, it would be necessary, if much of the House
were incapacitated, for the remainder to find a way to continue to
function. In the event of a major catastrophe, the House will have to
find a way to fulfill its duties, whatever you decide today. One of the
main points I wish to make is that if disaster does strike, a
diminished House of Representatives would have far more legitimacy
operating under an emergency quorum rule that had been decided in
advance than it would operating under a quorum rule devised ad hoc
under emergency conditions. A rule adopted now will have the legitimacy
of having been debated and approved by the full House, operating under
traditional quorum rules--it will therefore escape the bootstrapping
problem that would occur if a diminished House tried to change the
quorum rules. Moreover, a rule adopted now, in advance of any
emergency, would gain the legitimacy of having been adopted from behind
what John Rawls called a ``veil of ignorance.'' In other words, a rule
adopted now will be perceived as neutral and fair, because it will have
been adopted by a Congress that did not know which party, which
faction, or which individual representatives would be empowered by the
rule's eventual invocation. This will especially be the case if, as I
suggest in Part III below, the rule adopted is clear and precise about
the triggering mechanisms necessary for the Rule's invocation. That
way, whoever is in the leadership when the rule is invoked will benefit
from the legitimacy of having applied a clearly applicable law, rather
than having made merely a debatable judgment call.
Certainly, changes to the quorum requirement could also be
accomplished by constitutional amendment. Such an amendment either
could address the quorum calculation directly, or could ensure the
presence of a quorum by providing for temporary replacements of
incapacitated members. There have been a variety of proposals for
constitutional amendments, including one by the bipartisan Continuity
of Government Commission, a joint project of the American Enterprise
Institute and the Brookings Institution. Although I have studied some
of these proposals, I do not think it is my place to comment on them
here. What I can say is that the constitutional amendment process is
invariably slow, and that waiting for a constitutional amendment would
leave us vulnerable to potential lapses in the continuity of government
for too long a time. Even if the House believes that a constitutional
amendment is the best way to solve the continuity in government
problem, it makes sense to act now with a change to the House rules, to
provide for the continuity of government until a constitutional
amendment can be proposed and ratified.
II. Changes to the quorum rule would be nonjusticiable
When we say that a case is nonjusticiable, we mean that the federal
courts are jurisdictionally foreclosed from hearing the case under
Article III of the Constitution, either because the dispute is not the
kind of ``case'' or ``controversy'' to which the judicial power extends
(usually where the dispute is too abstract or hypothetical), or because
the dispute involves the sort of ``political'' question that the
Supreme Court has decided ought to be resolved by the legislative or
executive branch. I believe that, if the House adopts a rule that
changes the method of calculating a quorum when extraordinary
circumstances render much of the House incapacitated, lawsuits
challenging the constitutionality of the rule change would be dismissed
for lack of jurisdiction.
There are two situations in which litigants might attempt to
challenge the constitutionality of such a rule. First, some plaintiffs
might attempt to sue after the rule's passage but before it has ever
been invoked. Under current Supreme Court precedent, no plaintiff
(including Members of Congress who might wish to sue) would be held to
have legal standing to raise the issue in such circumstances. Until the
rule is invoked to find a quorum present where one would otherwise not
exist, the propriety of the rule would be only an abstract issue
ineligible for judicial decision. Later on, a court might be called
upon to decide the constitutionality of the rule change if and when the
new quorum rule was actually used to pass laws for which a quorum would
otherwise have been absent, and a litigant affected by such a law
argued that the law was not properly enacted. Even then, the rule would
probably be held to present a nonjusticiable political question, and
the case dismissed.
For a plaintiff to have standing to litigate, the Supreme Court has
said, the plaintiff must have an ``injury in fact''--that is, ``an
invasion of a legally-protected interest which is (a) concrete and
particularized, and (b) `actual or imminent, not ``conjectural'' or
``hypothetical.'' ' '' With only one exception not relevant here, the
Supreme Court has held that a litigant has standing only to complain
about an injury that is ``particularized'' as to that plaintiff, and
affects him ``in a personal and individual way.'' It should be obvious
why I believe this requirement will not be satisfied by a plaintiff
complaining about the mere passage of a rule amendment. The fact that
Congress passes a rule change that would not take effect except in
certain catastrophic and unlikely situations does not presently work a
concrete harm to anybody's legally protected interests. The passing of
such a rule change does not put anyone in jail, make anyone richer or
poor, or inhibit the exercise of anyone's constitutional rights. A
plaintiff cannot be granted standing merely to vindicate his abstract
interest in the legality of congressional rules; a series of cases
reject basing standing on such ``generalized grievances'' as citizens'
shared interest that their government follow the law. And to the extent
that there is any injury at all to a particular plaintiff stemming from
such a rule's passing, the injury is the very essence of
``conjectural'' or ``hypothetical.'' Such a plaintiff would have to
complain that he or she would be harmed if (i) a catastrophic
triggering event occurred, and (ii) the House decided to invoke the
reduced quorum rule, and (iii) the House then passed a bill which it
would otherwise have been prevented from passing by lack of a quorum,
and (iii) the bill was thereafter enacted into law (by concurrent
Senate passage, and then either a presidential signature or a
congressional override of presidential veto), and (iv) the bill
substantively disadvantaged the plaintiff. An injury contingent on so
many unlikely happenings is far too speculative to confer standing. At
the very least, a court is likely to conclude that challenges to the
rule change are not ``ripe'' until the rule has actually been invoked
and used to pass laws.
A court is just as likely to discuss a case challenging the rule
change if the case is brought by a Member of the House complaining that
the rule change infringed his or her prerogatives as a Representative.
In Raines v. Byrd, the Supreme Court dismissed on standing grounds a
lawsuit brought by Members of Congress challenging the
constitutionality of the Line Item Veto Act. The Court noted that a
prior case had upheld a congressman's standing to challenge his
exclusion from the House of Representatives (and his consequent loss of
salary). But, the court added, that case did not provide precedent for
finding standing for legislators who were not ``singled out for
specially unfavorable treatment as opposed to other Members,'' and did
not claim to be ``deprived of something to which they personally are
entitled.'' The Court in Raines also noted another previous case which
had found standing for members of a state legislature who alleged that
their vote on a particular piece of legislation had been ``completely
nullified'' by an allegedly improper procedure; there, the Court said,
standing was justified because the legislators alleged that under a
proper procedure, their votes ``would have been sufficient to defeat .
. . [that] specific legislative Act.'' None of the conditions that
might justify legislative sanding were present in Raines, and none were
present here. No Member of Congress could claim that amendment of the
quorum rules specifically disadvantaged him or her as against other
members. (To the contrary, if the rule change is enacted in advance of
any catastrophe, as I recommend, then all members are on an equal
footing--not knowing whether they would be among those incapacitated by
a future attack, or among those left to govern under the new rule.) Nor
does the rule affect the personal prerogatives or property rights of
particular members. Finally, the rule change will not nullify any
Member's vote. (Any Representatives among the incapacitated would be
physically incapable of casting a vote to be nullified in any case;
those present and voting after a catastrophic disruption would have
their votes counted just like anyone else.) \1\
---------------------------------------------------------------------------
\1\ Raines did leave open the possibility that the House itself may
have standing to litigate (or to authorize certain members to litigate)
disputes threatening its institutional power. But since the House also
has the ability simply to change any rule it finds offensive, it is
unlikely to authorize a member to challenge on its behalf a rule that
the House has adopted and refuses to change. Even if the House did
attempt to authorize a member to litigate such a case on its behalf,
the case would almost certainly be held nonjusticiable for lack of a
truly adversarial relationship between the parties.
It is true that the U.S. Court of Appeals for the D.C. Circuit has
occasionally granted Members of Congress and the public standing to
challenge the internal operations of the House. In Vander Jagt v.
O'Neill, for instance, the D.C. Circuit found that individual Members
had standing to protest the allocation of committee seats between
majority and minority parties; the Court in Vander Jagt held that the
plaintiff-Members had stated a valid claim in alleging that the
challenged practice had ``diluted'' their power and influence. A later
case, Michel v. Anderson, further found standing for voters who had
elected Members whose voting power had allegedly been diluted by a
House rule permitting delegates from the District of Columbia, Puerto
Rico, and various territories to vote in the Committee of the Whole.
This line of authority does not change my analysis of the standing
issue. To begin with, both Vander Jagt and Michel were decided before
the Supreme Court's decision in Raines v. Byrd. In contrast,
immediately after the Raines decision, the D.C. Circuit issued an
opinion in Skaggs v. Carle denying standing to a group of
Representatives and voters (as well as the League of Women Voters)
challenging a newly enacted House rule requiring a three-fifths
majority for actions involving tax increases. Skaggs did not reject the
``vote dilution'' theory of Vander Jagt and Michel. To the contrary,
Skaggs expressly reaffirmed it. But Skaggs nevertheless found a lack of
standing on the ground that plaintiffs in the case has suffered no
``imminent injury,'' since the rule in question could simply be
suspended, waived, or modified by majority vote of the House at any
time. Similar considerations ought conceivably to govern any challenge
to the quorum rule changes that might be brought in the D.C. Circuit.
Moreover, as part of its legislative standing analysis, the D.C.
Circuit employs a doctrine of ``remedial discretion,'' under which it
generally elects not to provide a remedy that would enjoin a
Congressional rule. Hence, even if the D.C. Circuit were to find
standing to hear a challenge to the rule change, it would likely
dismiss the case nevertheless as a matter of remedial discretion. This
was, in fact, the outcome in Vander Jagt and several of the other cases
---------------------------------------------------------------------------
in that court finding standing to challenge congressional procedures.
Finally, I believe that, if catastrophic circumstances do come to
pass and the reduced quorum rule is invoked to pass laws that would
otherwise have failed, then certain individuals particularly affected
by those laws could have standing to challenge them. Even the, however,
such lawsuits would be subject to dismissal as nonjusticiable under the
political question doctrine.
The classic statement of the political question doctrine is found
in Baker v. Carr: ``Prominent on the surface of any case held to
involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence
to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments
on one question.'' Several of these considerations would be especially
prominent in a case challenging laws passed under reduced quorum rules
during a national emergency. Most particularly, a court in such
circumstances would properly consider the need to avoid multifarious
and contradictory pronouncements during a time of national emergency.
In addition, given the range of historical precedents on the quorum
issue, and the fluidity of the terms at issue (as discussed above in
Part I), a court applying the political question doctrine in this sort
of suit is likely to find a lack of judicially manageable standards,
and a textual commitment of the quorum determination to the House
itself. United States v. Ballin made clear that the House's rulemaking
power is not limitless. But, as the Supreme Court showed in the 1993
case Nixon v. United States, which dismissed a challenge to a Senate
rule permitting a Senate committee to take testimony during impeachment
proceedings, the combination of a vague and judicially unmanageable
constitutional standard, and a textual commitment of a question to
Congress, militate strongly in favor of finding a political
question.\2\
---------------------------------------------------------------------------
\2\ The only doubt on this point is created by the Supreme Court's
decision in Bush v. Gore and Bush v. Palm Beach County Canvassing
Board, where the Court was apparently untroubled by the Constitutions's
apparent commitment of electoral vote disputes to Congress. See
generally Rachel E. Barkow, More Supreme than Court? The Fall of the
Political Question doctrine and the Rise of Judicial Supremacy, 102
Colum. L. Rev. 237 (2002).
---------------------------------------------------------------------------
III. Suggestions for changes to the quorum rule
What considerations would I recommend that drafters of a rule
change keep in mind, in order to maximize the legitimacy and
effectiveness of the rule, and minimize the potential for misuse?
The substantive condition that would trigger the rule must
be stated generally enough that the rule can really safeguard
continuity of government, yet specifically enough so as to prevent
fractional misuse. The events of September 11, 2001, show that it is
not necessarily in our capacity to predict precisely the type of damage
our enemies might wish to inflict on us. Moreover, the need for
continuity in government is not limited to the aftermath of terrorist
attacks; it would be folly to draft a rule that applied only to
terrorist attacks, and not, for instance, to natural disasters. At the
same time, the triggering event cannot simply be the failure of the
House to produce a quorum. As I have discussed above, the Constitution
specifically envisions that the House will be without a quorum at some
times when Members refuse to appear; the method to deal with that is
not by changing the quorum rule, but rather by using the power to
compel the attendance of absent Members. The rule must distinguish true
disasters imperiling the very existence of the government, from the
sorts of concocted, rhetorically overblown ``crises'' based on policy
disagreements that are recurrent features of our constitutional scheme.
Similarly, the rule should be triggered not by the mere absence of
members from the House Chamber, but rather by their inability to
discharge the duties of their office because of intervening external
events. A rule incorporating all these concerns need not be excessively
complex or convoluted. The rule's condition precedent could simply
read: ``In the event of an extraordinary catastrophe incapacitating a
majority of members and preventing them from discharging their duties
as Members of the House, . . .''
For the rule's invocation to have true legitimacy, there
must also be some procedural guarantee that the rule is not being
improperly invoked for factional reasons. Unlike the traditional rule,
where the quorum calculation is based on strictly objective measures
such as death, the reduced quorum rule for extraordinary circumstances
would be based on less clear-cut circumstances, presenting a heightened
danger of manipulation. This loss of objective standards may be
necessary in order to deal with the special problem the rule is
designed to address; but Congress should certainly take care to
minimize the risk of manipulation. For that reason, I strongly
recommend that the power to invoke the rule be placed not solely in the
discretion of the Speaker, but rather require as well the concurrence
of one or more members of the minority party's leadership, from a list
chosen ahead of time. This need not be viewed as an encroachment on the
Speaker's or the majority party's authority. Rather, the rule might
well be drafted to place the ultimate decision on invoking the rule in
the Speaker's discretion, requiring only that this discretionary
authority be triggered by a prior certification from outside the
Speaker's own party. Once again, the language providing for this could
be quite simple: ``Upon certification by two of the five most senior
Members of the House not from the Speaker's own party, that an
extraordinary catastrophe has incapacitated a majority of Members and
prevented them from discharging their duties as Members of the House
(or upon certification of two of the five most senior and
nonincapacitated Members not of the Speaker's party, if any of the five
most senior are incapacitated), and upon the Speaker's subsequent
determination that such circumstance poses a grave threat to the
nation, the Speaker shall be empowered to declare that the following
extraordinary quorum rules are in effect. . . .'' This is but one
suggestion. There are a number of alternatives that would serve to
insure that the special quorum rule was not invoked for political
purposes, but was rather used only in cases of bipartisan agreement
that truly extraordinary circumstances exist.
To ensure that the unusual quorum rules remain in effect
no longer than the extraordinary circumstances that gave rise to them,
any declaration that the extraordinary quorum rules are in effect
should be subject to an automatic sunset provision, providing that the
House will revert to its ordinary quorum rules unless the minority
party recertifies that the extraordinary situation still obtains, and
the Speaker chooses to reinvoke the special quorum rule. This, too,
will minimize the risk of manipulation, since public scrutiny of
successive recertifications would provide a valuable check against
abuse of the reduced quorum rule.
The Chairman. Just a moment ago you were talking about this
whole definition of catastrophe. I found that to be intriguing,
and I am wondering are you envisaging that we would establish
some kind of specificity on the issue of catastrophe?
Mr. Dellinger. Here is the tension, Mr. Chairman. You don't
want the definition of the triggering mechanism to be too
narrowly drawn, that is, the trigger that would authorize the
Speaker, with or without whatever consultation. Because one of
the things we learned on 9/11 is it is hard for us to imagine
some of the things that might happen. So you want it broad
enough so that it is not so narrowly drawn that we are thinking
of the last thing someone did to it rather than the next thing.
At the same time, you want to give assurance now that you
are adopting a rule that has enough of a definition that it
doesn't give just any abusive Speaker who might in the future
be elected the authority just to declare catastrophe and invoke
a different set of rules.
The Chairman. You were here for our discussion with the
parliamentarians, Mr. Johnson and his crew. It would seem to me
that when we get right down to it the definition would clearly
be the death or, as we would conceivably go through this quorum
process, basically the incapacity of Members to be here. And
part of the question would be--and we talked about the Sergeant
at Arms playing a role in making this determination and the use
of this honest broker term comes into the mix here. I guess one
question that would come forward is, what responsibility would
that honest broker have? Could he be legally challenged,
ultimately, in a decision that has been made advising the
Speaker on this question?
Mr. Dellinger. Ultimately, the check is political, and a
Speaker could in some instances declare tomorrow, if a number
of the Members of the minority party left town, declare
tomorrow that we are in a catastrophic situation, and it is
clear that that would be so untenable that it would be
rejected.
So if you have a rule that the country can understand then
that cabins a Speaker's authority to be abusive. Because if it
said something like, in the event of an extraordinary
catastrophe, an incapacitating majority of the Members and
preventing them from discharging their duties, people would say
this is clearly not met. They are in Greenbrier, West Virginia,
having their party caucus. This is not that circumstance.
So the honest broker--I don't know the institution of the
House in a way that you all would know that institution,
whether various Members of the House or staff are beholden to
the majority in a way that would not give that credibility. If
the Speaker--if you don't want to share the power of the
Speaker to declare this circumstance and really--I take it the
minority leader is really not an officer of the House itself.
It is more an informal matter of your caucus, so it makes it a
little awkward. If we have a constitutional House officer who
was the minority party member, you could say with the
concurrence of both of those. It is really a matter of what
makes not just the present minority comfortable but any of the
Members comfortable who imagine in their heads their least
favorite Speaker of the other party being the Speaker at the
time. What makes you comfortable----
The Chairman. When Mr. Frost and I were laughing earlier,
we were contemplating individual personalities of both
political parties.
Mr. Frost. We won't mention them.
Mr. Dellinger. I was certainly not going there with names.
But that is the usual test to do, and it is not actually
the Speaker at the time of the genuine catastrophe. What you
have to worry about is the Speaker at the time of a
noncatastrophe but who is invoking this rule for partisan means
or some other kind of factional means and what sort of what--
you wouldn't want a rule that said, whatever is really, really
important to do, the Speaker may declare that a quorum consists
of whatever happens to be in the House. Obviously, you would
want to ratchet it up so there will be some public constraint.
The Chairman. I appreciate that.
Mr. Frost in his opening remarks talked about the
importance of a minority being involved in this process; and
having served 14 years as a member of the minority and
understanding Madison's view on the rights of the minority, I
feel very strongly about that and I believe it should be
brought as part of the equation. Thank you very much.
Mr. Hastings of Washington. Thank you Mr. Dellinger, for
being here for your testimony.
Just for the record, I apologize for going in and out. Some
of my constituents are here, and they traveled a long way. So I
wanted to acknowledge them.
But in your testimony you said you feel very strongly that
we should----
The Chairman. We didn't consider it a catastrophe, by the
way, when we didn't have a quorum when you were back there with
your constituents.
Mr. Hastings of Washington [continuing]. You feel very
strongly that we should adopt a rule before hopefully an event
ever happens.
Mr. Dellinger. I believe you stated it very well, Mr.
Hastings, when you were here earlier. You talked about using
different language. You used different terminology to really
make the same point, that there will be much more public
confidence--I think was your quote--public confidence in your
actions according to a rule that we adopt now. Even if the
Houses were to proceed with a constitutional amendment--and
very thoughtful work was done by Norman Ornstein and his
colleagues, very thoughtful work. Even if one were to proceed
down that route, it would be a while before we do that. So some
consideration of a rule now, even if you wanted to amend the
Constitution to allow the appointment of temporary Members.
Mr. Hastings of Washington. The chairman pointed out we are
dealing with the incapacitation area here. In that regard, if
we were all home, for example, what are your thoughts? Some
people have talked about a power of attorney if I may be
incapacitated. So you have somebody externally making that
decision. What are your thoughts on that suggestion?
Mr. Dellinger. That is very interesting. I think that it is
actually a very good idea, that you have someone that you trust
who is capable of informing the Speaker of your incapacity to
do that. That actually would solve some of the problems of
uncertainty, and it would actually be very good to advise all
of the Members, as we should or you should, that one should
have this for one's health care as a general matter. I think if
the Members would do that as part of a package dealing with
their own medical health care power of attorney and adding to
it for Members a determination of disability authorization on
file with the relevant House officer----
Mr. Hastings of Washington. I am not going to draw a
judgment on this, but it seems an approach like that, if that
happened and we were all home, the Speaker--there would be some
time period before he would get reports back from whoever makes
that decision.
I just say that as an observation. I wanted to get your
perspective on it.
Mr. Dellinger. I do think a virtual Congress consideration
could be done at some point for a very limited period of time,
given the technology we now have. One would not--it would have
dire consequences in my view in the long run, because one of
the advantages of going to the national capital is people gain
a larger perspective than they do if they mailed in their votes
from home.
Mr. Frost. The building may not exist.
Mr. Dellinger. The building may not exist. This entire area
might be contaminated.
Mr. Hastings of Washington. That is all I have. I take very
seriously your suggestion and the Parliamentarian's that we
should act on it. Obviously, the difficulty we are going to
have is how we define the incapacitation.
In reading your testimony, you made one other observation.
Maybe you said this in your oral testimony. But you suggested
very strongly that even a House in diminished numbers acting
clearly where there would be some parts of the country not
being represented--because incapacitation or general revocation
is better than having nobody in place at all. Did you----
Mr. Dellinger. Absolutely. I think that it would have been,
as I said, chance or divine intervention that it left a few
Members able to act, and they may be from different districts.
They may be from--we have all read about how different our
congressional districts are, but they at least would have been
elected by some group of--a constituency of American citizens
would have elected these people, and at a time of a national
crises I think some of our more partisan disputes would seem
relatively trivial and having people elected by their friends
and neighbors--a sort of random constituencies.
The Chairman. If you would yield on that point, I think
that you made a very interesting argument on the issue of
elections, and Mr. Frost has brought to the forefront this
issue of the overall national confidence if in fact we had
three Members of the House of Representatives with the
constitutional responsibility that is placed in this body,
would we in fact be in a position to address all these
questions? And you are arguing even with this view as three
Members----
Mr. Frost. I raised five, but three constitute a quorum.
The Chairman. Well, we could be down to three----
Mr. Dellinger. That is the worst-case scenario. I think
that it is better than not having any House at all, and I think
the mechanism of having--we know that is actually what happens
if all but three Members were killed. If you had a joint--God
forbid, a joint session, and three Members were not in
attendance, we all know that under the present rules those
three people would constitute the House in the case of death.
That would not be the case if we went to Mr. Ornstein's
favorite position that has been rejected historically, which is
435, so the number has to be always to 218.
But that is where we are. I think we have the spectrum of
likelihood. The more you get down to that few Members, the more
unlikely and extreme it is. We need to take into the highly
unlikely but the less unthinkable possibility that some kind of
biological or chemical attack leaves us with only 110 Members
or 90 Members, and I think there would be a lot of public
confidence. These were 90 people elected by people who know
them in their own districts, and they were elected, and they
are not appointed, they are not replacements, they are not
temporaries.
I have a lot of confidence in 90 Members of this House
stepping up to the occasion, rising above partisanship,
recognizing that they want to proceed--with the concurrence of
the Senate and the President or acting President they can do
one thing that--I must say, in the interest of candor, I did
think of one counterargument that I would ask.
My question would be, suppose, Professor Dellinger, one of
the first thing that rump did was to repeal the law that
provided for expedited election of new Members. That is the
hardest case, that they would seize power, but it would have to
pass the Senate and be signed by the President.
The Chairman. Even if that were to happen, there still is
in place a structure, even though it is not expedited, for
dealing----
Mr. Dellinger. There would be special elections----
The Chairman. And in some States--one of the points we made
during the debate, the State of New York, for example, handles
those within a 40-day period, what we call in our preemption
participation a 45-day period of time.
Mr. Frost. I want to apologize to Dr. Eisold, who sat
patiently through this. I won't be able to be here. I read your
statement, and I find it very interesting. I may want to talk
to you privately about that.
A lot of things come to my mind. I believe that Professor
Dellinger's urging us to involve the minority--it is a serious
problem, and I would point out to the majority that if we have
a couple more months like this last one in Iraq, the current
majority may find itself in the minority the next Congress.
Mr. Frost. And it is not without possibility that there
will be changes in the parties in the next Congress.
The Chairman. Sure. It is always a possibility.
Mr. Frost. Secondly, my point on the constitutional
amendment, I still favor a constitutional amendment for
replacement of Members--Members who have been killed.
I do recognize the fact, the difficulty, of getting a
constitutional amendment adopted. It takes years and years. And
I think, because of that, I am certainly willing to entertain
and hope that I can support a rules change that would be in
place right away, although I have some questions about the way
the rules change is drafted.
But I think that your point, even though we disagree on the
constitutional amendment issue--because I believe that
ultimately it should have been a constitutional amendment--I
agree to appointment of Members pending elections.
I recognize that that is unlikely to occur anytime soon, if
ever, that we will ever amend the Constitution. I will continue
to support it, but if it were to happen, it wouldn't happen
next year.
Mr. Dellinger. I didn't mean to suggest that I was opposed
to the constitutional amendment. I share the Chairman's
reluctance about amending the Constitution.
Mr. Frost. I do, too.
Mr. Dellinger. And I think that it will be a while before
we get it, and there is something to be said for a----
The Chairman. If you would yield. On that point, you went
on to argue, very persuasively, about the need for elected
Representatives. Then you were critical of the notion of
appointments.
Mr. Dellinger. That is true. I take the Chairman's point
that I am more agnostic about--the appointment by the Governor
temporarily, if we can get into the things about having your
own personal successor----
Mr. Frost. We are not. My preference is an appointment by
the Governor. But that is another matter for another time. I
just--I find your testimony very helpful. I hope that we can
devise a way to, if we adopt this type of rule, to have
bipartisan participation.
The Chairman. Absolutely.
Mr. Frost. We have got to be very careful in terms of the
definition of a catastrophe, in terms of what we would trigger
in this particular rule. I am not at all concerned about
diminishing the quorum below 218. I think there are
circumstances in which a quorum being less than 218 would be
compelling, and that we have to figure out how to do that.
I am concerned that we could all be affected by the common
tragedy. We hope that never happens. And the issue of who
determines incapacity is a very serious issue because this
House is the judge of its own Members. I don't know that we can
delegate to anyone.
So ultimately either the Speaker could take advisement, but
whether it is the Speaker or whatever mechanism we set up,
someone in the House would have to determine whether a Member
was incapacitated or not. We couldn't just delegate that to the
Member's doctor in advance. It would have to be ratified in
some form by this body, I believe, to be legal.
The Chairman. Absolutely.
Mr. Frost. But it is an extraordinary issue. I hope to
continue to move forward. We have made some progress on some
relatively noncontroversial measures in the last 2 years. And I
believe that you introduced those in the record.
The Chairman. Yeah. The litany of all of the changes.
Mr. Frost. But while they have been important, they have
not dealt with the larger issues. And it is important that we
deal with this very large issue of incapacity. And I thank you
for being here.
Mr. Dellinger. Thank you.
The Chairman. Mr. McGovern.
Mr. McGovern. I want to thank you for being here. I am like
Mr. Frost, I am inclined to want to support some sort of a
rules change. I think this is a discussion draft that there are
a lot of questions that have arisen. I guess my concern is
that, you know, it goes back to the issue of legitimacy, as to
what people across the country will actually view as legitimate
in case of a catastrophe.
I mean, if there are 200 Members here, I guess the people--
that sounds like a lot of Members. People might feel that these
people are capable of making sound decisions; 100, maybe it
becomes a concern to some. But if you get down to 50 or 30 or
the 20 or 10, I mean, the decisions that would be made I would
assume in the aftermath of a catastrophe might be decisions
like we are going to go to war somewhere, might include
decisions to revoke people's civil liberties, establishing
curfews, some pretty serious decisions will be made. And I am
not sure that the American people might--will feel confident if
a handful of people of one party, you know, or under 10 people
or 15 people are making those decisions, would be credible.
I mean, I worry about, you know, you try to take this to
kind of the worst-case scenarios. And I am especially concerned
if you have a situation that arises where people cannot get
together, where you have people who are physically and mentally
able to make decisions but they are trapped in their districts,
they are trapped outside of the capital city, or they are
unable to kind of get together.
And so this issue of legitimacy I think is incredibly
important. I think you can devise all kinds of ways to keep
this thing running. One person can change the rules and adopt
all kinds of things to kind of keep things going.
On the other hand, I don't think--I think it would be very
difficult to go--or to have this government make the right
decisions if people did not trust that the people were there to
make those very decisions.
Mr. Dellinger. Here is the dilemma. You could imagine
putting in the rule a floor, that a quorum will be the
capacity--a majority of the Members with capacity, but in no
event shall it be lower than 50 Members, of which a quorum
shall be 25.
Now, I think what you would be implicitly doing in that
case is saying if, God forbid, it got below that, there would
be no House. I think it would be implicitly acknowledged that
the President could simply act alone. That is what Lincoln
would have told you. If you really had no House at all, Lincoln
would tell you the President's first obligation is to preserve
the Union. He would have announced that he has declared war and
he is raising taxes, and that he is doing this. And history
would judge him or her on the basis of the validity of those
choices, but would not question, I think, his decision to make
them.
So at some point the question is, is it better to
implicitly do without a House at some--does the level get so
low, recognizing that I think you are basically suspending the
Constitution rather than trying to comply with the letter----
The Chairman. So we would have a President who could
conceivably want to do in the first branch of government, then?
Mr. Dellinger. In the absence of a constitutional
amendment, you are faced with a choice of either operating with
a very small House or no House.
Mr. Hastings of Washington. I just make this observation.
And if we got to the point where you said we are--our
membership was down to the very precarious numbers, I think we
would all acknowledge that the power could immediately flow to
the executive branch, assuming the executive branch wasn't
harmed in whatever caused us to have our numbers diminished.
You could see how that could have happened after September
11th. It certainly happened December 7th. It took a little bit
longer during the Civil War. But that generally is what
happens. But leading to that--this is just kind of thinking
outside of the box--I know if there is a declaration of war,
that triggers a whole lot of other things that--as to how we do
business.
Is there any way that we could contemplate having, in case
of a disaster, some sort of trigger mechanism to say this is a
declaration of war would kick in, which allows for other acts
to be done in a quick way? Has that been contemplated?
Mr. Dellinger. You could do some version of the War Powers
Resolution that has more authority conferring in really dire
circumstances.
But I actually think that even a handful of Members,
summoned to the White House, or a temporary equivalent, would
be of great solace to the country. The President called the
nine of you over and says, This has been a horrendous calamity.
I want the nine of you to endorse--here is what I propose. I
want the nine of you to endorse it.
You are elected from nine different places. I think that is
better than nothing. I don't mean to say it is good. I can
easily disparage----
Mr. McGovern. I am not advocating nothing. I am kind of
pursuing some of those other thoughts about whether or not
people could possibly participate, you know, and not be
together. I am just--I am not saying that is the right way to
go, but I am saying that you could have nine Members from one
State, you know.
And again, I do think, especially in the face of a
catastrophe, it is important to have a check on the White
House. And, you know, I mean, you want to make sure that
whoever is the Commander in Chief, whether it is the President
or whoever is in the line of succession, is actually asking the
right questions; you know, is not acting in a panic, you know,
and that there is someone else, there is another body, you
know, kind of pitching the questions. But we don't always do
that now, and we have got 435 Members.
But I think on some of the decisions that would have to be
made--again I am not arguing against the idea that we need to
move forward with some sort of rule change, but I am simply
saying that I don't think it is unreasonable to think that if
only a small number of people are here, depending on who they
are--I mean, if you have 10 Members from each region of the
country, you can argue that we have got a little bit of
everything here. But there may be some issues of credibility
when it comes to some of the decisions that are being made,
which can be war and as well a total restriction of our civil
liberties; could be a number of things that are not that far-
fetched to imagine in the aftermath of a terrible catastrophe.
So it may be worth trying to think of are there other ways,
you know, to kind of beef up the numbers, maybe not putting--if
it had to be 50 or 100 or 200, but to the extent that there are
Members who are able to participate, whether there may be
creative ways to get them to be here if we cannot get them to
the Capitol.
Mr. Dellinger. That is worth exploring.
The Chairman. Let me before you leave raise one other issue
here, and it has to do with the issue that Mr. McGovern was
raising. That is the question of action.
You talked of the idea of the President calling the nine
remaining living Members of Congress down to the White House to
get them to support an action that he might choose to take. I
guess one of the points that I would make is if we do face a
crisis, there are many who argue that, you know, what is it
exactly the United States Congress would do? Would we have to
have a debate on the Medicare prescription drug bill?
You know, the decisions that would be facing us are
primarily immediate. And, yes, Mr. McGovern correctly raises,
there needs to be some kind of check on this with the executive
branch. But we are not going to be considering a major
education bill when there are that many Members of the House
left.
And I just wonder if you have any thoughts on this issue,
the urgency of having the institution immediately in place and
with a full complement of Members, as we deal with the
potential crisis and challenge that is on the horizon.
Mr. Dellinger. I am less persuaded than the Commission was
that having a full complement in that short period is really
all that beneficial, as compared with the moving ahead,
concentrating on getting the elections done, and getting new
Members elected.
The Chairman. We are in total agreement. I wanted to hear
your thoughts on it.
Mr. McGovern. Would you yield?
The Chairman. Yes.
Mr. McGovern. I wasn't contemplating that we would take up
a prescription drug bill during those times, although if we
did, you would probably keep the roll call open until you get a
majority.
The Chairman. That is a good idea.
Mr. McGovern. But I--you know, but there are serious issues
involving, you know, what this country--it goes to the very
heart of what this country is about, the civil liberties.
The Chairman. It was not based on yours, but a number of
people at the outset when this debate came forward, the
question is: What exactly will we be doing the next day? Must
the House of Representatives be in session? I know an argument
can be made about the solidarity that we saw on the East Front
of the Capitol on the afternoon of September 11 was an
important symbol to the American people; but at the same time,
I do think that if you look at the actual work product itself
and what is necessary, I think that Professor Dellinger and I
are just agreeing on that.
Mr. Hastings of Washington. Just one observation. And I
subscribe to the idea that you have to have checks. I would
suggest if you got down to nine Members, you would have to
convince five people to check the President. But I would
suggest if you got down to nine Members, five people checked
the President, you would probably have an outrage against the
five Members. So you would be in a situation where you would
have to respond, and someone would have to show some
leadership.
So while that is all valid, when you are talking about the
issues that are in front of us and things that have to be done
under those circumstances, I think you would have a backlash if
you had a small number and tried to check the President under
those circumstances.
And, again, if he made a bad decision, you have other
opportunities when we are reconstituted in order to make these
corrections. So I would just make that observation. I am not
saying they are not valid.
The Chairman. Thank you very much.
Mr. McGovern. I wanted to respond to what Mr. Hastings
said, because I think that, conversely, you may have a group of
Members who might call into question actions a President may be
contemplating in the aftermath of a catastrophe and actually be
heroes, actually be trying to make sure the President did the
right thing.
So I am just simply saying that, you know, I know you are
not disagreeing.
Mr. Hastings of Washington. I understand. All I am simply
saying is that if you look back at past history, and when we
have these sort of events that have happened, people tend to
coalesce behind the executive. That is what I am suggesting. In
fact, you could argue for those that--like the division of
power, you would argue whenever we get into a world war, all
power flows to the President.
The Chairman. Thank you very much again, Professor.
Appreciate your being here.
And our final witness who has, as was pointed out by Mr.
Frost on the length of his patience, has been shown by the fact
that Mr. Frost walked out of the room, as you said. We are now
approaching 2\1/2\ hours, and you and your colleague have been
very patient in following what, obviously, is a fascinating,
interesting challenge; something we don't want to ever
contemplate, but we are in the business of dealing with a lot
of crises that do take place in this institution.
That is why we felt it very important that you come forward
to offer your remarks.
The Chairman. So we appreciate having Admiral Eisold with
us. And your prepared statement will, without objection, appear
in the record.
When was the last time you testified before a Congressional
committee?
STATEMENT OF JOHN EISOLD, M.D., THE ATTENDING PHYSICIAN TO
CONGRESS AND REAR ADMIRAL, MEDICAL CORPS, U.S. NAVY
Dr. Eisold. Two and a half years ago; second time in 80
years.
I can get to the points that I want to make fairly quickly
by paraphrasing my statement. Basically what we are talking
about from my perspective is impairment and incapacitation.
Clearly death, as has been discussed, is a simpler situation
with which to deal with.
The Chairman. There is some finality to that.
Dr. Eisold. My intent is, pure and simple, to ensure the
continuity of government. In carrying out that mission on a
daily basis, we are interested in the health and welfare of not
only the Members, but the staff and visitors to the Hill. They
are all important.
Our mission also includes consideration being given to
prepare for potential mass casualties consequent to a weapons
of mass destruction incident such as we have been alluding to
here. And I am adequately staffed and resourced to accomplish
this. I am fully connected with all of the local, Federal, and
civilian medical authorities so that, in a situation where we
are overwhelmed, I can tap into a full response with great
confidence, as I did during anthrax.
One thing I will point out, though, is that in my role,
confidentiality is very important. For the sake of discussion
here, we would have to assume that by virtue of the public
nature of whatever event it was, that the particulars
surrounding a Member's health or lack of health are public
knowledge. Therefore, it gets easy to talk about their
situation. However, if I have been given knowledge, by virtue
of taking care of a Member or if Members come to me about a
significant health problem that will clearly have the potential
to incapacitate a Member in a short period of time, but they
have decided not to discuss this with anybody or even talk
about it with their family, I will obey that trust. I would not
violate that confidentiality.
And, quite frankly, in support of leadership, in situations
here where it is obvious that there may be an impaired Member,
if I have been approached, it has always been in the interest
of the Member's well-being and dignity. So there has been a
great deal of respect for that trust expressed by everybody.
Now, if I just look at the Members' health and some of the
continuity of Congress problems that arise, there is a range of
health status. You are well. You are dead. And somewhere in the
middle is incapacitation.
If we have somebody with a minor illness like the flu, we
all understand somebody is missing several votes and being out
for a few days, and that is understood. If we look at another
level, like major surgery or pneumonia, again I think the
tradition is that they are excused, even some for an extended
cancer treatment or something like that.
But then when we get to significant disease, prolonged
hospitalization, rehabilitation, or inability to get around, we
need to look at what is at stake. Then you have to decide. At
one end of the spectrum you ask yourself the question, Can the
Member vote? Can he or she be expected to vote? Can they do
constituent work? Then you have got at the other end of the
spectrum a Member so ill, maybe even on a ventilator or
comatose after an automobile accident, that it is intuitive to
anybody that the prospect of returning to work or at least
returning to work in any given time period or the ability to
perform at all is so marginal, that you should even consider
would this person leave before the end of the term. Would they
be able to do any work at all in this incapacitated situation?
Now, implicit in this, I have raised the question of
impairment. Impairment of a Member is an objective description
of a Member's state of health as determined by the medical
establishment. It is me discussing the things that are wrong
with somebody and their degree of impairment. Usually you have
got a prognosis with that as well. Will the Member fully
recover? If so, when? Is it permanent impairment. Is the
impairment cognitive, or is it physical? If so, to what degree?
Is death a possible outcome, and so on? All of that requires
some judgment.
Keeping in the back of our mind that medicine is not a
precise science and that patient outcomes are not always
totally predictable, sometimes you may have someone who you
think is going to turn the corner, and they don't. Likewise,
there is someone you thought was going to be laid up for an
extensive period of time who recovers quickly.
My statement here is that a rushed judgment about a
patient's ultimate status may be ill-advised. I think that
whenever you are thinking of an impairment, there is a time
frame. Some people are going to recover soon and some in a long
time. I would keep that in mind.
Now, what do we do with any of this information about an
impaired person? Maybe we judge someone as being incapacitated,
raising the subject of secession, a nonmedical issue. However,
when there is death of a Member, there is already a process in
place whereby succession will ensue.
The difficult situation that we have been talking around
today is incapacitation. Incapacitation is a subjective
judgment about a Member, saying that a Member is too impaired
to be likely to be able to return to meaningful public service.
At this point there has to be a determination about what is
the performance standard. And the judgment about incapacitation
is made relative to that standard. For example, can the Member
walk into the Chamber, move about the Chamber and put their
voting card in by themselves? You can think of a thousand
different scenarios. But there has to be a performance standard
first before you can decide whether someone is incapacitated.
The state of incapacitation would be made by nonmedical
people based upon medical input. If you give me a performance
standard, then I can tell you how impaired the person is and
the likelihood that they are going to be able to meet that
standard. Then someone else can make a judgment about
incapacitation.
If one is talking about one or two impaired people, I might
possibly recommend to a Member, their or their staff that
because of The Members situation they ought to think about
leaving office, because it is either counterproductive to their
health, undignified, or that they probably aren't going to get
back to work. It is always easy when you can arrive at such a
conclusion in a very collegial way or family way.
But one always has to anticipate contentious situations.
I would discuss this with appropriate people, for full
disclosure. I would not, however, make a statement to
leadership that a Member was incapacitated. It is a fine line.
While I personally would not say, someone is incapacitated, I
would say exactly how much a person is impaired and what is the
likelihood a person could or couldn't do their job. Then as an
institution, someone else would match that up with whatever
standards have been decided upon. In a collegial way, I would
work as an advisor to say, what are realistic expectations. But
I would always, since my compact is with the patient and their
confidentiality, focus on their health and their medical needs,
while institution has to act independently with what their
needs are. Then we marry the two together.
What we need to look at is incapacitation. Incapacitation
really requires a lot of thought before you tell a Member they
are out of the game.
While I think that under the right circumstances, with
people working together, you can do that, it is the hardest
part of this whole enterprise.
[The statement of Dr. Eisold follows:]
Prepared Statement of Dr. John Eisold
I am pleased to be able to address this very important member topic
relating to impairment, incapacitation, succession and the Continuity
of Congress with you today. In my position as the Attending Physician,
I am quite cognizant of the significance that health or more
importantly the lack of good health plays in all of our lives and, in
particular, its vital role in the political process. At this time of
many external threats to our well being, it is imperative that these
issues be considered. My intent today is to define the playing field
that needs to be explored to study the issues at hand. While on the
surface, various approaches may seem readily workable, the truth is
that the issues are quite complex, rest neither in the medical nor
political arena exclusively and don't lend themselves to easy
solutions.
First, let me define my clinic's mission. It is to ensure the
Continuity of Government--pure and simple. In carrying out that
mission, on a daily basis the health and welfare of not only the
members but the staff and visitors to the Hill are important. This,
also, includes consideration being given to prepare for potential mass
casualties consequent to a weapons of mass destruction incident.
Currently, the clinic is adequately staffed and resourced with
physicians, technicians, nurses, ambulances, transport vehicles and a
mobile medical support capacity to accomplish our mission routinely.
During a mass casualty situation or other major incident, we can rely
on the rapid engagement of the full measure of support from Federal and
regional civilian contingency health resources. Furthermore, these
additional assets are regularly on standby or prepositioned for
scheduled events such as the Inauguration, State of The Union, Joint
Sessions etc.
Important, as well, in the delivery of healthcare, confidentiality
is obligate. I raise this issue of confidentiality, because the
discussion that follows assumes that any member's health status or
death has become public knowledge. This would, therefore, exclude those
situations where a member has poor health but has not shared this with
anyone, perhaps not even with a family member. I would respect the
member's wishes, even if job performance had deteriorated, and not
discuss their health status. Leadership has always understood this and
never pressed my for information in even the most delicate and possibly
obvious situations. In fact, if concern has been raised, it has been
out of interest for a member's well-being and dignity.
Turning exclusively to the members and their health, lets look at
some of the Continuity of Congress problems that can arise. Take for
example the range of poor health status. A member may have a transient
illness (like the flu) where he or she is temporarily out of action;
not a problem. At the next level, how about a significant problem but
one which is time limited, like major surgery or a severe pneumonia.
Again, this has not usually been problematic and has been routinely
excused. Continuing on, though, how about a chronic significant disease
requiring prolonged hospitalization or rehabilitation. What is at
stake? At one end of the spectrum, can the member be expected to vote
or do constituent work? At the other end, is the member so ill that the
prospect of return to work or the ability to perform adequately is so
marginal that consideration may be given to leaving office before the
end of a term?
Specifically, I have raised the issue of the degree of impairment
of a member, that is, the objective description of the state of a
member's health as determined by the medical establishment. Usually a
prognosis is part of that description. Will a member fully recover? If
so, when? Will there be permanent impairment? Will that impairment be
primarily cognitive or physical or both? If so, to what degree? Is
death a possible outcome and so on. The only caveat to add is that
medicine is not a precise science and patient outcomes are sometimes
unpredictable and even surprising. Some patients may unexpectedly
deteriorate while others miraculously recover. A rush to judgment about
a patient's ultimate status may be ill-advised.
What to do with any of this information raises the subject of
succession, a process that is not a medical issue. Clearly, when there
has been a member death while in office, steps towards succession will
ensue. The more difficult situation relates to member incapacitation.
Incapacitation is a subjective judgment that a member is too impaired
to be likely to be able to return to meaningful public service. It is
made by non-medical people but based on meaningful and accurate medical
input. Subsequently, the issues of leaving office followed by
succession may have to be addressed. In this regard, it is possible
that I might recommend to a member and their family that leaving office
early be considered because future service might be counterproductive
to good health or that any return to service is unrealistic or perhaps
even undignified. This is what I would view as full disclosure to a
patient so that personal decisions can be made with all facts
considered. I would not, however, make a statement to leadership that a
member was incapacitated. I would only describe the degree of
impairment. A fine line, I realize, but my compact is ultimately with
the patient, not the institution. Only the institution, possibly in
concert with the member, can make a decision about incapacitation and
how it relates to continued service. At most, I would provide a
discussion of all ramifications, if asked, but would stop short of
rendering a final judgment. That would be up to leadership. After all,
incapacitation must be measured relative to performance expectations. I
may have an opinion but not the final say. I am an advisor.
In closing, I have tried to create a framework in which to analyze
the problems of impairment, incapacitation and succession. Medical as
well as institutional assessments are required, but there is a definite
divide between the two when incapacitation and possible early departure
from office with consequent succession are in question. While
succession itself is a difficult issue, it becomes significantly more
difficult when large numbers are considered or when the process of
leaving office hasn't been sorted out in member impairment situations.
Thank you for your attention. I will be pleased to answer any
questions.
The Chairman. Good. Thank you very much, Doctor. I consider
you to be an extraordinary public servant. I know you work
constantly in behalf of the Members of both the House and the
Senate. And I have seen the sacrifices that you have made. I
just want to go on record as saying what I have told you
privately many times, how much we do appreciate all that you
do.
One of the things that you alluded to in the beginning of
your remarks was this issue of your ability to have access to
all of the assistance that you might need from, say, the
Federal or private entities, local entities. And basically you
said you have the resources.
One question that I would pose has to do with the issue of
your not knowing about every single Member of the United States
Congress. And the question would come to the forefront, I
think, What exactly should be provided to you as the Attending
Physician of the Capitol as far as information about Members?
Because it is very clear--I don't know what the percentage is,
I don't know of Members who do utilize your services--I know
that I regularly utilize your services.
But I guess I would ask, do you think it would be advisable
for Members of Congress, upon their entry into this body, to
provide to you dental records or DNA information or anything
like that that could conceivably be helpful?
Dr. Eisold. The larger question is just their general
health. The more I know about everybody's health, the more I
can help them. Admittedly, many people will keep their doctors
at home.
I think that almost, as though joining the military, for
example, Members, as a condition of employment should
understand that when they come on board, that I will have a
chance to get with them and review their medical history or
perhaps even do an exam. I think that would be very helpful, to
be able to get whatever medical information is on file.
The Chairman. So would you like us to actually require that
of Members upon entry into this body, that they have that
examination, and provide to you----
Dr. Eisold. Either provide it to me or let my clinic do it.
The Chairman. Because right now that is not required.
Dr. Eisold. Right. It is voluntary. I guess you can require
almost anything but I don't know if you can require people to
do things about their health that they don't want to do. But it
certainly could be a very strong recommendation.
The Chairman. I am thinking about this in terms of this
whole issue of incapacity, because as you correctly say, it is
a subjective determination. But there is information on
impairment, as you say, that is something that you are in a
position to comment on.
Dr. Eisold. I think it would be good practice for the
health of the Congress to encourage Members, to regularly
update their medical information the ideal would be to see them
in the clinic and examine them every year or at least review
their health status every year.
The other question you raise is a little more problematic,
the DNA buckle swab.
The Chairman. That and dental records for identification.
Dr. Eisold. It would be on a voluntary basis. It is a good
idea, because there is the chance that somehow in some
catastrophe, you will not be able to identify remains except by
that method.
The Chairman. So maybe requiring the DNA or dental records
provided to you on file may be helpful?
Dr. Eisold. It would be. It leads you down the pathway of
how you manage care for the Congress, ensure its continuity,
identify people and so on. It does open up a whole number of
items here.
The Chairman. Mr. Hastings.
Mr. Hastings of Washington. Thank you, Dr. Eisold, for
being here and sitting through all of this. There will probably
be a test later on for you.
In your testimony, you suggested or said that to make a
determination of incapacitation from a medical standpoint is an
objective practice.
Dr. Eisold. Yes. Inherently, impairment is objective.
Mr. Hastings of Washington. But you would not go as far as
to advise the Speaker, or whomever, as to whether that person
could fulfill his or her duty?
Dr. Eisold. I would advise them but I would stop short of
saying that this person is incapacitated. For example, somebody
who was paralyzed from the neck down, under the right
circumstances, is perfectly capable, although severely
impaired, to be a Member of Congress.
Incapacitation, in and of itself, is really only relevant
to what the performance expectations are. If you give me the
performance expectations, I can probably advise you. I would
say I don't think he or she will be able to do that.
Mr. Hastings of Washington. Going to the next step then, is
it fair to say that a determination of whether to--by whatever
means we arrived at a conclusion to define incapacitation, that
probably is a subjective determination?
Dr. Eisold. Correct. That is the subjective part of it.
Mr. Hastings of Washington. So that being the case, how do
we link those two together in order to somehow have some sense
that this can't get out of hand from a political standpoint?
What would you suggest that we do?
Dr. Eisold. I think that you need a broker who is not
looking for anything except an accurate reporting from a
medical perspective on a person's health status.
Mr. Hastings of Washington. Should that be part of the
record somehow? I am thinking I don't know how we do that
because you have to--on the privacy part.
Dr. Eisold. In these circumstances where you are talking
about some catastrophe, I think that there is public knowledge
that a person is in the hospital. Some of the particulars could
be handled confidentially with the leadership.
How you would sort it out as an institution, I don't have a
recommendation. Is it something that the minority leader and
the Speaker would have to agree on? If one disagrees, then by
definition, the Member is not incapacitated.
You have got your quorum if you declare a Member not
incapacitated, but by all practical purposes this person may
not be able to vote, they may be on a ventilator and the
hospital physician who is taking care of the person says, ``it
is against medical advice to move this person.'' Then do you
physically go out and hire a Nightingale to somehow bring them
in? There are those practical issues. It is important. It is
not easy.
Mr. Hastings of Washington. From a medical standpoint,
people do improve. So one day you could be incapacitated, one
day you won't?
Dr. Eisold. Correct. It is a very fluid situation as well.
Mr. Hastings of Washington. Well, of the three issues that
were broadly outlined by the Chairman at the outset, this by
far is the most difficult, just trying to get this nailed down,
in my view.
Dr. Eisold. I appreciate your trying to nail it down
without having it get politicized. because you can create all
sorts of scenarios where it is absolutely a crucial vote.
Mr. McGovern. First I want to think Dr. Eisold for his
testimony. I have the same kind of concerns that Mr. Hastings
has, because, I mean, you are not in the position to say to the
Speaker, Congressman so-and-so is incapacitated; Congressman
so-and-so isn't. You know, that is not your job.
Dr. Eisold. Right.
Mr. McGovern. And issues of privacy and all of this other
stuff comes into play. You can serve as kind of an adviser, but
you can't divulge certain things because of the patient-doctor
relationship.
But I think it--I think, you know, that means, as you said,
that this is very subjective. Which goes back to what Mr. Frost
was saying in the very beginning of this hearing; that on this
particular issue there really needs to be some sort of
bipartisan consultation. I mean, there--if there is any part of
this that really needs to have an agreement between kind of
both sides, it is on this.
Dr. Eisold. Right.
Mr. McGovern. To protect the integrity of whatever we
decide here, and to make sure that it doesn't become political.
And so I would hope that on this particular issue, that maybe
as we work through this draft resolution that it is not solely
the Speaker's decision; that it is the Speaker in consultation
with the minority leader, you know, so that there is no
question that the decisions are being made based on merit and
not on politics, not on something else.
It is very complicated and poses all kinds of questions as
to how people come to the decision as to who is incapacitated,
who is not. But I appreciate your testimony very much.
Mr. Chairman, I just also want to acknowledge our colleague
from Connecticut, Mr. Larson, who has been here from the very
beginning. He has worked on this issue tirelessly and devoted
an incredible amount of time to this and it is evident that he
takes this very seriously. He has sat through all of this,
along with Dr. Eisold and the others who are here. So I want to
commend him for all of his work.
The Chairman. I mentioned him in my opening remarks.
Mr. McGovern. I wanted to mention him again.
The Chairman. I would like to see if Mr. Hastings would
like to say something about the presence of Mr. Larson.
Mr. Hastings of Washington. I would like to acknowledge the
presence of Mr. Larson here, too.
The Chairman. Mr. Larson, as I said in my opening remarks,
came to me yesterday afternoon and talked about the idea of
being here. But what I did say earlier is that he has provided
a very, very thoughtful approach to dealing with this. He is
the ranking minority member of the House Administration
Committee, and he has worked closely with us in a very
bipartisan way in trying to address these important
constitutional concerns. We do appreciate your patience in
being here. So thanks, John, for that.
And again, let me express, as everyone else has to you,
John Eisold, the appreciation for your great service and the
fact that you have taken the time to be here. You know, if you
think about the challenges that the Attending Physicians of the
past year have faced, they are nothing like what you have gone
through between September 11th and anthrax and ricin and
everything else. So we appreciate your handling of this in a
very professional manner, what obviously has been one of the
most serious and dangerous times in the history of our
Republic.
And so, without objection, the committee stands adjourned.
Thank you all very much.
[Whereupon, at 12:40 p.m., the committee was adjourned.]
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APPENDICES
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Appendix A
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Appendix B
(Submitted by Parliamentarian Charles Johnson)
Hinds' Precedents, volume 4, sections 2889 and 2890
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Appendix C
Parliamentary steps taken to ensure continuity of operations in the
108th Congress
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Appendix D
Discussion draft--Provisional number of the House
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Appendix E
Continuity of Congress Legislation in the 108th Congress
(1) H.J. Res. 83, proposing an amendment to the Constitution of the
United States regarding the appointment of individuals to fill
vacancies in the House of Representatives (sponsored by Congressman
Brian Baird of Washington) failed on passage by the Yeas and Nays (\2/
3\ required): 63-353-2 (Roll Call Vote No. 219 on June 2, 2004).
(2) H.R. 2844, the Continuity in Representation Act of 2004
(sponsored by Congressman James Sensenbrenner of Wisconsin and
Congressman David Dreier of California) agreed to on passage by the
Yeas and Nays (majority required): 306-97 (Roll Call Vote No. 130 on
April 22, 2004).
(3) H. Con. Res. 190, to establish a joint committee to review
House and Senate rules, joint rules, and other matters assuring
continuing representation and Congressional operations for the American
people (sponsored by Congressman David Dreier of California and
Congressman Martin Frost of Texas) agreed to on passage by voice vote
(June 5, 2003).