[Senate Hearing 108-517]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-517

  ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: A PROPOSED 
      CONSTITUTIONAL AMENDMENT TO GUARANTEE A FUNCTIONING CONGRESS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 27, 2004

                               __________

                          Serial No. J-108-54

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement...........................................    35
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....     5
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     4
    prepared statement...........................................    40
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    45
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    47

                               WITNESSES

Levinson, Sanford V., W. St. John Garwood and W. St. John 
  Garwood, Jr. Centennial Chair in Law, University of Texas Law 
  School, Austin, Texas..........................................    10
Simpson, Alan K., Co-Chairman, Continuity in Government 
  Commission, and former Senator, Cody, Wyoming..................     7
Wasserman, Howard M., Assistant Professor, Florida International 
  University College of Law, Miami, Florida......................    11

                         QUESTIONS AND ANSWERS

Responses of Sanford V. Levinson to questions submitted by 
  Senators Leahy and Feingold....................................    20
Responses of Howard W. Wasserman to questions submitted by 
  Senators Leahy and Feingold....................................    28

                       SUBMISSIONS FOR THE RECORD

Gerhardt, Michael J., Arthur B. Hanson Professor of Law, William 
  & Mary Law School, Williamsburg, Virginia, letter..............    42
Glennon, Michael J., Professor of International Law, Tufts 
  University, Medford, Massachusetts, letter.....................    44
Levinson, Sanford V., W. St. John Garwood and W. St. John 
  Garwood, Jr. Centennial Chair in Law, University of Texas Law 
  School, Austin, Texas, prepared statement......................    49
Rotunda, Ronald D., George Mason Univerisity, School of Law, 
  Arlington, Virginia, letter....................................    62
Rundquist, Paul, Specialist in American National Government, 
  Government and Finance Division, Congressional Research 
  Service, Washington, D.C., memorandum..........................    65
Simpson, Alan K., Co-Chairman, Continutiy in Government 
  Commission, and Former Senator, Cody, Wyoming, prepared 
  statement......................................................    68
Tribe, Laurence H., Ralph S. Tyler, Jr. Professor of 
  Constitutional Law, Harvard University Law School, Cambridge, 
  Massachusetts, letter..........................................    74
Volokh, Eugene, Professor of Law, University of California, Los 
  Angeles, Los Angeles, California, letter.......................    75
Wasserman, Howard M., Assistant Professor, Florida International 
  University College of Law, Miami, Florida, prepared statement..    77

 
  ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: A PROPOSED 
      CONSTITUTIONAL AMENDMENT TO GUARANTEE A FUNCTIONING CONGRESS

                              ----------                              


                       TUESDAY, JANUARY 27, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:35 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn 
presiding.
    Present: Senators Cornyn, Craig, and Feingold.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE 
                         STATE OF TEXAS

    Senator Cornyn. This hearing of the Senate Committee on the 
Judiciary shall come to order. I want to start by thanking 
Chairman Hatch for scheduling this important hearing in the 
full Committee. Last fall, with his blessing, I chaired two 
Judiciary Committee hearings on the problems of continuity in 
Government with respect to both Houses of Congress, as well as 
the presidency.
    On September 9, I chaired a hearing that looked at 
continuity problems facing Congress, and I was joined by my 
colleague, Senator Leahy. On September 16, I co-chaired a 
hearing with Senator Lott, Chairman of the Rules Committee, on 
problems with our presidential succession law. We were joined 
in that effort by a number of distinguished members, including 
Senators Dodd, Feingold, and DeWine.
    On November 5, 2 months after those hearings took place, I 
introduced a constitutional amendment and implementing 
legislation. That proposal was designed to address the problems 
of continuity of Government facing both Houses of Congress, as 
identified by experts during both September hearings.
    Today's hearing will begin the process of considering that 
constitutional amendment. In addition, today I will introduce 
implementing legislation, called the Continuity of Senate Act 
of 2004. This bill is cosponsored by Senators Lott and Dodd, 
and that, of course, is appropriate because the legislation is 
subject to the jurisdiction of the Senate Rules Committee. I 
will speak more on that in just a moment.
    I want to begin my opening statement by thanking Senator 
Leahy and his staff for working with my office to put together 
today's important hearing, which is entitled ``Ensuring the 
Continuity of the U.S. Government: A Proposed Constitutional 
Amendment to Guarantee a Functioning Congress.''
    Two days before the 2-year anniversary of 9/11, this 
Committee examined potential vulnerabilities of our 
constitutional system of government. As painful as it is to 
recall the events of September 11, it is a stark reminder of 
how close terrorists came that day to decapitating the U.S. 
Government.
    Were it not for the late departure of United Airlines 
flight 93 and the ensuing heroism of its passengers, the 
Capitol Building might have been destroyed, potentially killing 
numerous Senators and Representatives, and perhaps even 
disabling Congress itself.
    The American people simply must be able to rely upon a 
functioning Congress in the wake of a catastrophic terrorist 
attack. Although not in session year around, Congress no doubt 
would need to convene immediately in a time of crisis. In the 
days and weeks following September 11, Congress enacted 
numerous emergency laws and appropriations measures to 
stabilize our economy, to address the aftermath of the 
terrorist attacks, and to bolster national security.
    Yet, today we lack the constitutional tools needed to 
ensure continuity of Congressional operations. Under our 
Constitution, a majority of each House of Congress is necessary 
in order to constitute a quorum to do business. After all, our 
Founders understood the need for a nationally-representative 
Congress, and rightly so.
    That important commitment carries with it certain 
vulnerabilities, however. If a terrorist attack killed a 
majority of House members, Congress would be disabled until 
special elections were conducted around the country, a process 
that could take months, according to every election official 
who has contacted my office--time that we may not have. 
Moreover, if a majority of Representatives is incapacitated, 
the House would be shut down until the inauguration of a new 
Congress, a delay of potentially as long as 2 years.
    The situation could be even more dire in the Senate. The 
17th Amendment permits State legislatures to empower Governors 
to make immediate appointments to fill vacancies in the Senate, 
and every State, except Oregon and Wisconsin, has chosen to do 
so. Yet, the Constitution provides no mechanism for dealing 
with Senators who are incapacitated, but not killed. If a 
biological weapons attack incapacitated a majority of Senators, 
Congress could be shut down for 4 years.
    Our Constitution does not prepare us for such dire 
consequences because our Founding Fathers could not have 
contemplated the horrors of 9/11. After all, they lived in a 
world free of weapons of mass destruction. They established a 
presidency to command an Army and Navy, but no Air Force. They 
structured our system of government specifically to disfavor 
standing armies.
    Yet, the Founders, in their great wisdom, well understood 
that they could not predict everything that this new Nation 
might someday need, or what the future might someday hold. They 
wisely ratified the Constitution specifically because it 
included a built-in procedure for amendment or self-correction 
in Article V of the Constitution.
    Accordingly, last November I introduced a constitutional 
amendment and accompanying legislation to ensure continuity of 
Congress in a manner consistent with the vision of the 
Founders. The amendment, Senate Joint Resolution 23, authorizes 
Congress to enact laws providing for Congressional succession, 
just as Article II of the Constitution authorizes laws 
providing for presidential succession.
    The implementing legislation, S. 1820, authorizes each 
State to craft its own mechanism for filling vacancies and 
redressing incapacities in its Congressional delegation, just 
as the 17th Amendment authorizes States to decide how to fill 
vacancies in the Senate.
    My proposed amendment authorizes the creation of special 
emergency procedures that would be available for 120 days, or 
longer if at least one-fourth of either House continues to 
remain vacant or occupied by incapacitated members.
    Any appointment or election of a member of Congress made 
pursuant to such emergency powers would last for as long as the 
law would allow; that is, until expiration of the regular term 
of office or earlier, as Congress may allow. But the emergency 
procedures themselves would be available only for the period of 
time permitted under the proposed constitutional amendment.
    Now, I recognize that some House members favor emergency 
interim appointments to ensure immediate continuity of House 
operations, while others prefer to rely solely on expedited 
special elections. My November proposal takes no side in that 
debate.
    Some States, in order to expedite the conduct of special 
elections, may be prepared to adopt Internet voting, enact 
same-day registration laws, or abandon party primaries, while 
other States may be concerned that expedited special elections 
are undemocratic or will disenfranchise military voters. Under 
my approach, each State would make its own choice.
    Moreover, today I will introduce new implementing 
legislation focused exclusively on the Senate, called the 
Continuity of the Senate Act of 2004, cosponsored by Senators 
Lott and Dodd. If House members decide to rely solely on 
special elections to cure continuity problems in their chamber, 
I will not do anything to stand in their way. By the same 
token, the House should not prevent Senators from resolving 
continuity problems in this chamber. This proposal gets the job 
done, while respecting the prerogatives of each House of 
Congress. It deserves to be enacted into law.
    Twenty years ago, after nearly killing Prime Minister 
Margaret Thatcher and leading members of her government, IRA 
terrorists issued a chilling threat. They said, remember, we 
only have to be lucky once; you have to be lucky always. The 
American people should not have to rely on luck. They deserve a 
constitutional system of government that is failsafe and fool-
proof. Nobody likes to plan for their own demise, but failure 
to do so is not an option. We must plan for the unthinkable 
now, before our luck ever runs out.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    With that, I would like to recognize the Ranking Member of 
the Subcommittee on the Constitution, which I chair, Senator 
Feingold, for any remarks he might make, and also to say thank 
you to Senator Craig for his attendance at this important 
hearing today.
    Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. First, let me 
welcome the witnesses, and especially my friend and former 
colleague, Senator Simpson. It was such a pleasure to serve 
with him.
    It is good to see you again and I look forward to hearing 
from you again.
    Mr. Chairman, I would like to commend you for your work on 
this issue. I appreciate your initiative and leadership. You 
and your staff have put a lot of thought and effort into this 
and I think it shows.
    In the 2 years and 4 months since the attacks of September 
11, we have been repeatedly reminded that there are terrorists 
working everyday to attack our country wherever it is most 
vulnerable. The threats we face are very real, and certainly a 
massive attack on the Federal Government would achieve many of 
the terrorists' goals.
    Of course, our first duty as legislators is to do what we 
can to protect the American people, but we must also recognize 
the possibility of future terrorist attacks and plan for them.
    Discussions about the continuity of Government and about 
various hypothetical scenarios that could occur in the wake of 
a catastrophic terrorist attack may seem to some abstract and 
far-fetched. But in the terrible event that any of these 
nightmare scenarios should come true, many lives depend on the 
ability of the legislative and executive branches to 
effectively respond.
    As you know, Mr. Chairman, I approach all proposals to 
amend the Constitution with great caution. As the charter that 
provides the structure and basic rules for our entire system of 
Government, the Constitution strikes innumerable balances we 
must be wary of disrupting. Any changes in this fundamental 
structure can have far-reaching consequences, and 
constitutional amendments are immensely difficult to undo.
    For this reason, whenever there is a proposal to amend the 
Constitution, I believe we should ask first whether the problem 
can be solved with legislation rather than a constitutional 
amendment. If any of the witnesses believe there are proposals 
other than a constitutional amendment that would adequately 
protect the continuity of our Government, and in particular the 
legislative branch, I would be particularly interested to hear 
them say so.
    But I do recognize that there are some problems that 
probably can't be solved by legislation, and that providing for 
the continuity of Congress may well be one of them. Mass 
vacancies or incapacitations in the House or Senate could 
seriously obstruct Congress from responding to the crisis 
created by a catastrophic terrorist attack.
    Today, we face the threat of attacks on a scale that would 
have been unimaginable not many years ago. And we know, 
historical events can sometimes alert us to vulnerabilities or 
flaws in our constitutional structure. The assassination of 
President Kennedy led to the adoption of the 25th Amendment. It 
may well be that the attacks of September 11 should lead to the 
adoption of the 28th Amendment.
    The goal of this amendment is unquestionably laudable and 
the structure it proposes may well prove to be the best option. 
A lot of hard work has already been done here and I look 
forward to working with you, Mr. Chairman, to find the best way 
to protect our democracy. I am grateful again to our panel and 
look forward to hearing from them.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Senator Feingold, for your 
comments.
    Senator Craig, we would be pleased to hear any opening 
comments you might have.

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF 
                             IDAHO

    Senator Craig. Mr. Chairman, I will be very brief. I have 
to chair another hearing in a few moments, but I am so pleased 
that our former colleague and my neighbor out West, Al Simpson, 
is here, along with his wife. We still gain on a regular basis 
the wisdom of Senator Simpson, often through the media. It 
causes us to pause and react.
    But let me give for the record a personal experience that I 
think clearly recognizes what you are trying to do, Senator, 
with S.J. 23 and S. 1820. For those of us who were here on 9/
11, it was obvious in a very short period of time how 
unprepared we were to handle an emergency of the kind that we 
were at that time involved in, or how impossible it would have 
become had this area or portions of this campus been struck by 
an aircraft of the magnitude that occurred at the Pentagon and/
or certainly at the Trade Center.
    I and others evacuated the Hill. I live on the Hill, so I 
went home and got on the phone and started calling around my 
State of Idaho to calm nerves and to give impressions of what 
was going on. Late in the afternoon, it became obvious to me 
that something needed to be done here as a core activity. I was 
then part of the elected leadership, but I was one rung below 
those who were evacuated to Virginia, to our undisclosed 
location.
    But I happened to have had that phone number, so I and 
other leaders and other members, House and Senate, gathered at 
the Capitol Hill Police Station and we began to express our 
concern to the sequestered leaders how important it was that 
the Congress immediately in some form make an expression. We 
were encouraged to go home, not to assemble. We still did not 
yet know the magnitude of the threat that might have been 
ongoing.
    Our leaders were sequestered and they did not feel or 
understand the emotion that was sweeping across the country at 
that time, I believe. We were watching television. They were 
not. We were calling home. They were not. Finally, I and 
others, Democrat and Republican, said no, we are not going 
home; we are going to assemble.
    We were told by the leaders that they would be returning to 
the Capitol grounds at a certain hour to hold a press 
conference. We said, fine, we will meet you there. We did. You 
all saw that. You all saw us standing on the steps of the 
Capitol as our leaders came back and expressed their concern 
and what we would be doing in a public press conference. And, 
of course, then we all broke into a song of unity, our National 
prayer, ``God Bless America.''
    That was probably, in that day, the most singly important 
thing that the Congress of the United States did for the psyche 
of the American people. It was played hour after hour for a 
good number of days following, just that simple act of the 
Congress standing on the steps of this Nation's Capitol singing 
this Nation's prayer. It was a statement of unity of a kind 
that could have been expressed no other way.
    My expression here today is to suggest that a Congress that 
can be, if damaged, reconstituted very quickly is critical to 
the character, the strength, and the stability of this Nation, 
there is no question about it, because for days afterwards, if 
not for months, I received phone calls and letters of 
expression from people who had witnessed all of us collectively 
on the steps of the Capitol that day.
    I then began to recognize how critically important it is 
that there be continuity, and that it be seen and heard and 
understood clearly by the American people because if, for 
instance, the worst would have happened, to see our Capitol 
struck would have been a phenomenally devastating blow on the 
psyche of the American people, let alone our systems of 
government.
    So, anyway, I am pleased you are doing this work. I agree 
with Senator Feingold. I have always been extremely cautious in 
how we approach amending our Constitution, but you may well be 
right. This may be an area where we need to be clear, precise, 
and allow for this kind of continuity to go forward.
    I thank you for your work, and to all of our panelists, 
thank you for coming today.
    Senator Cornyn. Thank you, Senator Craig, for your 
comments.
    We are fortunate to have before the Committee today a 
distinguished panel of witnesses. We have asked them to come 
here to discuss, as Senator Feingold stated, the need for a 
constitutional amendment to ensure continuity of Congressional 
operations in the wake of a catastrophic terrorist attack and 
to determine whether one particular proposed amendment, Senate 
Joint Resolution 23, fits the bill.
    As others have alluded to, Senator Alan K. Simpson, of 
course, needs no introduction to this body or to this 
Committee, but I will give him a short one nonetheless. Senator 
Simpson served in the United States Senate from 1978 to 1997, 
acting as the Minority Whip for ten of those years. He was an 
active and distinguished member of this Committee, as well as 
the Finance Committee, the Environment and Public Works 
Committee, and the Special Committee on Aging. As a veteran who 
served in Germany during the final months of the Allied 
occupation, he chaired the Veterans Affairs Committee.
    Before his election to the U.S. Senate, Mr. Simpson served 
in the Wyoming House of Representatives, rising to the office 
of Speaker in 1977. Following his tenure in the U.S. Senate, 
Senator Simpson served as Director of the Institute of Politics 
at Harvard University's John F. Kennedy School of Government 
from 1998 to 2000. Today, he is a visiting lecturer at the 
University of Wyoming and a partner in a Washington-based 
government relations firm and a Denver-based law firm.
    Of course, Senator Simpson co-chairs with Lloyd Cutler the 
Continuity of Government Commission, a bipartisan blue-ribbon 
commission of distinguished public servants established by the 
American Enterprise Institute and the Brookings Institution to 
examine the problems of continuity of all three branches of 
Government.
    Senator Simpson keeps a very busy schedule. I know this 
because we wanted him to testify at our hearing last September. 
He wanted to, as well, but unfortunately we could not work out 
the timing. So I am thrilled that the timing has worked out 
today and I am pleased that he is here to share his expertise 
based on years of experience and careful study.
    I am pleased to introduce from my home State of Texas 
Professor Sandy Levinson, of the University of Texas Law 
School, in Austin. Professor Levinson is the W. St. John 
Garwood and W. St. John Garwood, Jr. Centennial Chair in Law 
and Professor of Government, and is an internationally 
recognized expert in constitutional law.
    He is the author of numerous books and law review articles, 
including ``Constitutional Faith: Written in Stone,'' and of 
particular relevance to today's topic a book entitled 
Responding to Imperfection: The Theory and Practice of 
Constitutional Amendment.
    He received his bachelor's degree from Duke, a Ph.D. from 
Harvard, and a law degree from Stanford.
    Professor Howard Wasserman completes our panel. He is an 
assistant professor of law at Florida International University 
College of Law, in Miami, and previously served as a visiting 
assistant professor of law at Florida State University College 
of Law and a law clerk for Chief Judge James T. Giles, of the 
United States District Court for the Eastern District of 
Pennsylvania, and Jane R. Roth on the United States Court of 
Appeals for the Third Circuit.
    A graduate of Northwestern Law School, Professor Wasserman 
has published numerous articles on the subject of continuity of 
government. He testified last September at the joint hearing of 
the Senate Judiciary and Rules Committees in favor of reforming 
the presidential succession law.
    Professor, it is good to see you again, and thank you all 
for being here today.
    Senator Simpson, if I may start with you, please, we would 
be happy to hear your opening statement.

 STATEMENT OF HON. ALAN K. SIMPSON, CO-CHAIRMAN, CONTINUITY OF 
GOVERNMENT COMMISSION, AND FORMER UNITED STATES SENATOR, CODY, 
                            WYOMING

    Mr. Simpson. Well, thank you very much, Senator Cornyn. 
This is a treat to see my old friend, Russ Feingold. We served 
together, enjoyed each other's company, and our spouses, too. I 
always had great regard and respect for him.
    I did not get the opportunity to serve with you, but I can 
tell you you are a leader especially on this issue, and I 
admire that very much. And Larry Craig, the Lion of the West, 
an old friend.
    You said you were doing this with Orrin's blessing and, of 
course, we always needed that here in this chamber. Orrin would 
give his blessing to all of us. As he would say, would you 
please--no, I won't go into it.
    [Laughter.]
    Mr. Simpson. And then, of course, Pat Leahy and his staff 
whom I see today, and staff around the room; to all of you, 
greetings. I know what you are here for, to sort it all out and 
run back, all of you in the back there saying I heard Simpson 
and Sandy and Howard testify; I think they are all goofy. I 
know how it works, but listen carefully to this one because 
this is an important issue. This one will not go away.
    So it is fun to come into the lion's den here, familiar 
surroundings, 18 years here in this Committee. And, of course, 
I am going to do something that I remember always doing. I ask 
that the full text of my remarks be entered into the record.
    Senator Cornyn. Without objection.
    Mr. Simpson. Isn't that wonderful the way I did that? We 
always used to do that from up there, but I wanted to get ahead 
and I have done that. Thank you, Senator.
    My wife of 50 years is here. It is hard to believe that she 
would have stuck it out that long. She spent a few hours in 
this room, and she has been a great helpmate of mine. You 
cannot succeed in politics without a supportive spouse, so she 
is right there. Yes, she is. I brought her for defense 
purposes, because we left Washington undaunted and unindicted, 
and it was a wonderful experience. Now, I am going to take four 
more minutes. I know how this game works. I thank you.
    The Continuity of Government Commission is a no-nonsense 
group. Let me just tell you quickly who is on it because you 
don't read the letterhead. Lloyd Cutler and I co-chair it: Phil 
Bobbit, Ken Duberstein, Tom Foley, Charles Fried, Newt 
Gingrich, Jamie Gorelick, Nick Katzenbach, Judge Robert 
Katzman, Lynn Martin, Kweisi Mfume, Bob Michel, Leon Panetta, 
and Donna Shalala.
    We have held two full-day public hearings, heard testimony 
from all sorts of groups, didn't want to go really to a 
constitutional amendment, but found ourselves looking clearly 
back into it because of incapacitation and other issues.
    The reason is clear; you have all stated that. 9/11 
happened. It was not fiction, it was not a book. They will come 
again. The terrorism threat is not behind us. The President 
said at the State of the Union, ``It is tempting to believe the 
danger is behind us. That hope is understandable, comforting, 
and false.'' That is exactly what it is.
    The fourth plane, from all of the things we found through 
our investigation and the investigation of select committees, 
was headed for this Capitol, and the brave passengers took it 
down. The House was in session that morning. The Senators and 
House members were all over this campus, as Larry refers to it, 
and it is true.
    The Capitol Dome is made of cast iron. If that baby had hit 
that dome, the stuff would have trickled through the whole area 
in a molten form. I am not trying to be dramatic, so I will 
stop right there. But let me tell you that was real.
    We identified these problems in our hearings. It would take 
months to fill vacancies in the House because you have to have 
a special election. The Senators can be replaced in 48 hours, 
and many of us have been, and the Governors do that. But it 
takes an average of over 4 months to fill vacant seats in the 
House of Representatives, and if there were more than 50-
percent vacancies there would be no quorum.
    They have a very lenient quorum rule in the House, which is 
something about ``living,'' which is an interesting part of it. 
They could get a smaller group, but imagine what would happen 
if the New York delegation would be the only one that survived. 
That could happen.
    There is the light. Anyway, I will come back to 
presidential succession in later hearings, but it is the issue 
of incapacitated members. They cannot be replaced by election 
because there is no vacancy. You can't replace a person who is 
incapacitated because they may come back. So that is really a 
problem.
    We recommend the constitutional amendment. It would operate 
when there are many deaths, but if somebody can hear us over in 
the House, the word is ``temporary.'' We are talking about 
temporary; everything is temporary here. It is just too long to 
go 45 days without having Congress in session.
    The real difficulty for us is not here in this body; it is 
in the House of Representatives. I do respect them greatly and 
I know Chairman Sensenbrenner very well. He and I have worked 
together. I have had a very enjoyable relationship. But I can 
tell you if the argument is continued in the House that this is 
simply the People's House and the fact that every member of the 
House has been directly elected by the people and that if we do 
something with the Constitution it will injure the, quote, 
``character of the House,'' I will tell you what will destroy 
the character of the House--220 of them lying in an alley out 
here incapacitated with burns, or dead. That would really 
change the character of the House.
    I would just say to you that I am astounded at the reaction 
in the House, especially the chairman, a member of my party. It 
is almost embarrassing. It is almost as if this commission were 
treated rudely. We have been treated rudely by the Chairman not 
listening to one shred of what we are saying, and no 
alternative procedures except one that keeps getting tossed out 
that you have defined. I hate to be that critical, but I will 
tell you I would be embarrassed.
    And I will tell you another thing politicians don't like, 
and that is ridicule. And if something else happens in this 
country, they are going to come back and say where were you? 
Were you fast asleep? Why didn't you do something? You knew. 
Where were you? How could you?
    That is all I have to say.
    [The prepared statement of Mr. Simpson appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Senator Simpson.
    Professor Levinson, we would be glad to hear your opening 
statement.

 STATEMENT OF SANFORD V. LEVINSON, W. ST. JOHN GARWOOD AND W. 
 ST. JOHN GARWOOD, JR. CENTENNIAL CHAIR IN LAW, UNIVERSITY OF 
                TEXAS LAW SCHOOL, AUSTIN, TEXAS

    Mr. Levinson. Thank you. I won't repeat everything that is 
in the written statement. I do want to express, though, both 
professional and personal honor and pleasure in being here. The 
professional satisfaction comes from what you mentioned; that 
is that constitutional amendment has been a long-term interest 
of mine. Indeed, I am co-teaching a seminar at the Yale Law 
School this semester on constitutional design. But there is 
also a distinct personal pleasure, not simply that you are the 
Senator from my home State, but that we are of different 
political parties, for this seems to be an issue that is 
without the slightest partisan tilt.
    And I am delighted to have the opportunity to meet Senator 
Simpson, whom I have long admired for his candor, which was 
revealed this morning as well. Even though I have often 
disagreed with him politically, I am delighted to appear before 
you because I think this is an issue which really should bring 
all of us together as Americans and not as Democrats or 
Republicans.
    I want to address the issue that Senator Feingold raised, 
which is the reluctance to amend the Constitution.
    Senator Cornyn, you mentioned that I edited a book called 
Responding to Imperfection. That title comes from a letter 
written by George Washington to his nephew, Bushrod, who would 
later serve on the Supreme Court of the United States.
    Washington, of course, was, to put it mildly, no minor 
figure either in terms of our history or obviously the 
particularity of the Constitution itself. He was the President 
of the Constitutional Convention. Without Washington's support, 
the Constitution never would have been ratified.
    What he wrote to his nephew, though, was as follows, ``The 
warmest friends and the best supporters the Constitution has do 
not contend that it is free from imperfections.'' Fortunately, 
when inevitable imperfections do manifest themselves, ``there 
is a Constitutional door open. The People, (for it is with them 
to Judge) can, as they will have the advantage of experience on 
their Side, decide with as much propriety on the alterations 
and amendment which are necessary.''
    Should the point not already be clear enough, Washington 
went on to say that, ``I do not think we are more inspired, 
have more wisdom, or possess more virtue, than those who will 
come after us.''
    I emphasize in my testimony the words ``the advantage of 
experience.'' Experience was crucially important to the framing 
generation. One can find similar statements in the Federalist 
Papers written by Hamilton and Madison. And it dishonors the 
Framers of the Constitution, and it really dishonors the 
document they handed down to us to assume that they thought 
that they had drafted a perfect document and that there is 
nothing to learn from experience.
    September 11 obviously should have served as the wake-up 
call that Senator Simpson mentioned, and it does seem to me the 
Constitution is grievously imperfect with regard to the kinds 
of contingencies that Senator Simpson mentioned.
    The Constitution recognizes the possibility that there will 
be a vacancy in both the presidency and vice-presidency, and 
therefore the Constitution explicitly authorizes Congress to 
pass a succession in office act. I commend you also for your 
leadership in raising questions about the succession in office 
act. But not only is that not a topic before us this morning, 
it is also a topic that clearly can be resolved by legislation 
because the Constitution specifically authorizes Congress to do 
so.
    We now recognize as a result of September 11 and the kinds 
of considerations raised by Senator Simpson and the project 
that he co-chairs that there are the same possible 
contingencies with Congress as there are with the presidency. 
And I believe that most constitutional specialists would agree 
that Congress does not have the authority simply to pass 
corrective legislation.
    The Constitution very clearly says that succession to the 
House is by election and by no other means. That is not a 
problem with Senators, except in the altogether foreseeable 
contingency that you and Senator Simpson mention, which is 
incapacitated Senators. And then the 17th Amendment, I think, 
is really quite useless.
    It seems to me, to take another term from the Constitution, 
that if a constitutional amendment is ever necessary and 
proper, it is in this instance where there is a contingency 
that we hope is remote, but it is certainly foreseeable. One 
buys insurance and writes wills even when one is young on the 
basis of what one hopes are remote contingencies, but it is 
irresponsible to assume they can never happen. We, I believe, 
know this can happen. The Constitution is deficient with regard 
to allowing us to respond with the kind of alacrity the country 
would need.
    There is another consideration, if I can take literally 20 
more seconds. I spell this out more in the written testimony. 
If Congress cannot function, it is not that nothing will 
happen; it is that inevitably what would arise is a 
presidential dictatorship, as happened arguably with Abraham 
Lincoln when Congress was not in session during the early days 
of the war.
    It seems to me again that all Americans, regardless of 
party, regardless of whether they are liberal or conservative, 
must agree on the essential importance of a functioning 
Congress, and that this amendment is an important and necessary 
first step toward assuring that.
    Thank you very, very much for inviting me and thank you 
very much for taking the lead on this issue.
    [The prepared statement of Mr. Levinson appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Professor Levinson, for your 
testimony and your generous remarks.
    Professor Wasserman, we would be pleased to have your 
opening statement.

STATEMENT OF HOWARD M. WASSERMAN, ASSISTANT PROFESSOR, FLORIDA 
    INTERNATIONAL UNIVERSITY COLLEGE OF LAW, MIAMI, FLORIDA

    Mr. Wasserman. Thank you, Chairman Cornyn, and thank you 
for inviting me to address this Committee and to participate in 
this distinguished panel.
    What I referred to in my written statement as the Cornyn 
Plan--a combination of an amendment and some implementing 
legislation--is the exact proper approach to the question of 
continuity of Congress because it utilizes a short, broad, and 
very general constitutional amendment that vests in Congress 
the power to provide by law appropriate procedures in order to 
replace large numbers of incapacitated, disabled, or deceased 
members of both Houses of Congress, and thereby to ensure that 
we have a functioning Congress and a functioning Government, as 
that Government is imagined under a system of separation of 
powers.
    What is important about the amendment is that it punts the 
entire issue to Congress to then deal with in its discretion 
through the ordinary legislative process. And it is that 
process which is far more deliberative and can be far more 
detailed where the real details and the real vagaries of 
constitutional continuity can be spelled out. So as you 
indicated in your opening remarks, even if there is a 
difference between the House and Senate as to what the proper 
procedure is, the amendment is still a good idea just to lay 
every possibility out on the table.
    I would draw the Committee's particular attention to the 
absolute necessity of the amendment with regard to 
incapacitations or disabilities, because the Constitution 
nowhere mentions and nowhere provides any procedures for 
dealing with the disability of individual legislators.
    This contrasts with Article II and the 25th Amendment which 
deal specifically with presidential disability and delegate to 
Congress power to deal with that situation. The triggering 
language in Article I, section 2, and the 17th Amendment as to 
Congress is ``when vacancies happen,'' and in the absence of a 
vacancy there can be no election, there can be no appointment, 
and there can be no other procedure of any kind established to 
put a member in that seat.
    The two leading Supreme Court decisions on the question of 
Congressional qualifications are Powell v. McCormick and U.S. 
Limits v. Thornton. Those two cases together can be understood 
as standing for a general rule that once a member has been 
chosen and qualifies, she must be sworn and seated.
    Except for the very limited circumstance where a two-thirds 
super-majority of one House can expel that member, neither 
Congress nor the States has any power to prevent that member 
from taking her seat or from remaining in that seat for the 
duration of her term.
    Put slightly differently, a member chosen and seated at the 
beginning of a Congress serves 2 or 6 years, depending on the 
House, unless and until she resigns, dies, or is expelled. 
Absent that vacancy, neither Congress nor the States presently 
has any constitutional power to fill that occupied seat even 
temporarily. The import of the amendment therefore would vest 
this power in Congress or, as under your legislation, to some 
delegatee of Congress.
    The last point on this, though, is to emphasize that a pure 
reliance on expulsion is not the answer, for two reasons. 
Number one, at some level it seems unfair to expel a faithful 
public servant merely because she is incapacitated for what may 
be as short as a week or some relatively short period of time.
    The broader problem is expulsion is simply procedurally 
impossible because it requires a two-thirds super-majority and 
there has to be a quorum in order to carry out the expulsion 
procedures. And if there can be no quorum to do ordinary 
business because of the number of incapacitated members, there 
cannot be a quorum to carry out the expulsions.
    The last point I want to make actually focuses on the 
implementing legislation, and I discuss this further in my 
written statement. It is just to suggest the change that any 
implementing legislation make it mandatory that the States 
enact these procedures by changing the language ``may enact'' 
to ``shall enact.''
    The one thing that we do need is some level of national 
uniformity and national certainty, and any delays by the 
States, even unintentional, in implementing and carrying out 
these procedures could threaten the ability of Congress either 
to function at all or to force Congress to function in a very 
small, skeletal, unrepresentative fashion. Congress can avoid 
that problem by requiring that the States implement and carry 
out these necessary procedures.
    With that change, I express strong support for both 
elements of the Cornyn plan, and I urge this Committee and this 
Congress quickly to consider and enact both elements. Thank you 
again for the opportunity to address this panel.
    [The prepared statement of Mr. Wasserman appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much, Professor Wasserman, 
and thanks to all of you for your opening statements. I know 
Senator Feingold and I each have some questions for you.
    If I may start perhaps with Senator Simpson, 2 days after 
9/11 Congress approved legislation expediting benefit payments 
to public safety officers who were killed or injured in the 
line of duty during the terrorist attacks. Three days after 9/
11, Congress approved a $40 billion emergency supplemental 
appropriation bill for recovery from and response to the 
attacks, as well as legislation authorizing the use of military 
force.
    A week later, Congress approved additional legislation both 
to stabilize and secure our airports and to provide 
compensation for the victims of 9/11. In subsequent weeks, 
Congress enacted several other bills and appropriations 
measures to bolster national security and upgrade our 
capabilities to combat terrorism.
    Indeed, week seven, which was right about the time, I 
believe, of the prevailing House proposal for replacement of 
absent members or disabled members by virtue of expedited 
elections, Congress passed the USA PATRIOT Act to deter and 
punish terrorists in the United States and around the world, 
and enhance law enforcement and investigatory tools.
    As my question suggests, we did a lot of things; this 
Congress did a lot of things in the aftermath, the 45 days 
after 9/11, which I believe were important to not only 
reassuring the country, but to providing for the victims and 
their families, as well as authorizing the President to use 
military force against those who played a role in the terrorist 
attacks.
    Of course, unless we have a means of rapidly replacing 
killed or disabled members of the House, none of that could 
have happened. Even under, I believe, the chairman's proposal, 
Chairman Sensenbrenner's proposal, it would be a 45-day 
election. And certainly a newly-elected member of the House 
would find it difficult to get to Washington and begin 
functioning as a fully effective member of Congress in such a 
short time.
    But we have two bodies of the Congress, the House and the 
Senate. The House, as you noted in your comments, Senator 
Simpson, very jealously guards its prerogative to make 
provision for itself and is not particularly welcoming of the 
other body to do it for it.
    I would if you could just perhaps, in your wisdom of 18 
years in the Senate, provide any suggestions or other insight 
about how you might approach such apparently conflicting views 
on how the House ought to deal with succession.
    Mr. Simpson. Well, Senator, you can see how helpful I have 
been already in that area. Sweeping things were done by the 
Congress in those days, within days. The American public was 
heartened by that. I am one of those people who lives in Cody, 
Wyoming, and said what are they going to do? And you did 
marvelous things, not just symbolism, but legislatively.
    Imagine if those legislative acts had to wait 45 days for 
any of them to pass. I will tell you the American people would 
be offended. They would say who threw the sand in the gears? 
Who did this? And I will tell you we would know who did it. 
This cannot stand. You can't do this.
    There is a lot of fine bipartisan support in the House, 
Congressman Baird, Democrats and Republicans alike over there 
who are ready to do something. I think of my old pal John, of 
the Judiciary Committee, and there are so many over there who 
would listen to us. I am just astounded that with all this fine 
bipartisan support--and I think, as I say, you could get it 
from John Conyers.
    I will tell you what we need to do. We need to have the 
Chairman open his door and listen. We will bring the whole 
commission in. He has got a lot of pals here and a lot of fine 
Americans are here. I would like to have him see us and come. 
We have been rudely treated, and I think that is a shame. It 
isn't good.
    When I had a situation with Tip O'Neill. I went to see him. 
He said, Simpson, what are you doing in here? I said here I am 
and I didn't bring any staff with me. I just dragged my own 
brains in here; now, if you will just listen. He would say, 
okay, I will listen. Then he would light a cigar and pull up 
his sleeves, and then 1 day he said, Simpson, I am going to do 
what you are suggesting, but if you tell anybody, you will 
never see that legislation again.
    I never told my staff, I never told anybody. Days before 
the deadline, he put the immigration bill on the floor of the 
House and got torn to bits by Fritz Mondale and Gary Hart, who 
were both running for President, on an issue which was so hot 
with Hispanics, and so on. And I think he told Fritz or Gary, 
look, you run for President, I will run the House. And that was 
Tip.
    So all I want is the same courtesy to sit and describe to 
the gentleman, whom I have enjoyed and have helped--I remember 
bringing him to a hearing once where he couldn't even get in. 
And I said to Peter Rodino, let Jim Sensenbrenner in this room. 
He said, no, I don't need to listen to anybody in the minority. 
I said, yes, you do; you can't run a shop like that. So Peter 
opened the door, and I don't think Jim had ever been in that 
sacred chamber. If you can't do that kind of work, then the 
American people are appalled.
    All I am saying is it is no time for rigidity and 
stubbornness and not listening, not on an issue like this. So 
that is what I would do, and I am sure that Jim's staff is 
sitting here scratching themselves, staring off into the East, 
wondering how in God's name Simpson could have erupted like 
this. So have old Jim invite us in and we will all come in and 
just sit around for a while and chew the fat.
    Senator Cornyn. Professor Levinson, you heard both Senator 
Craig and Senator Feingold allude to a state of mind that I 
think a lot of members of Congress have when it comes to 
constitutional amendments, and I appreciate in your opening 
statement you directly took that on.
    There is a tremendous reluctance in this body to deal with 
constitutional amendments. Of course, as Senator Feingold said, 
if this amendment does pass, it would be number 28. So we 
haven't been promiscuous in the way we have amended the 
Constitution by any means in this Nation's history. But I 
believe that this is one of those, and as you pointed out, one 
with bipartisan support, that in some ways is not thrilling 
enough to command a lot of attention. On the other hand, when 
you get a proposed constitutional amendment that does get 
people's blood up, it is hard to pass a constitutional 
amendment there, too.
    I, for one, worry that if the people are unwilling to 
consider amending our Constitution that there are occasional 
Federal judges who are happy to do that through judicial 
decision. And I frankly prefer the former rather than the 
latter. Now, this is not one of them, probably, where a judge 
would assert him or herself, and certainly not until after we 
have already suffered a terrible loss.
    Could you just expand a little bit on your point of view 
about how you think this Committee should approach 
constitutional amendments? Do you think there is any sort of 
objective line of demarkation between those kinds of amendments 
that are worthy of consideration and those that should not be 
considered, and why do you think this is one of them?
    Mr. Levinson. Well, I should confess that I am one of those 
people who think that the United States Constitution is much 
too difficult to amend. One of the articles in the book 
Responding to Imperfection, by another Texan, Don Lutz, who 
teaches at the University of Houston, looked at the United 
States Constitution not only in comparison with about 35 or 40 
national constitutions around the world, but also with the 50 
State constitutions.
    The United States Constitution is the most difficult to 
amend constitution in the world. That record had been held by 
the former Yugoslav Constitution, but we now hold it. This 
means, among other things--I think you are absolutely right--
that a lot of amendment--what in other countries might have 
taken place through formal, self-conscious amendment--takes 
place not simply through judicial innovation, but also frankly 
through Congressional innovation and executive branch 
innovation because there is no good alternative.
    I agree with you that if a matter is truly controversial, 
it really is next to impossible to amend the Constitution of 
the United States. But the point is that this ought not be 
controversial. I just literally can't understand why somebody 
being presented not only with the abstract possibilities, but 
also the reality of September 11 would say, well, this just 
could never happen and I am opposed to amending the 
Constitution because it would lead to bad things.
    I can see reasons to disagree about implementing 
legislation, on what procedures should be set up. I would have 
Congress take a much stronger role, for example, rather than 
simply leaving it to the States, for reasons that have already 
been indicated.
    But it does seem to me that the history of constitutional 
amendment, at least, since the Progressive era has been that it 
is extremely difficult to get through amendments on issues that 
really divide the people politically.
    But there have been a number of amendments--the 25th 
Amendment is a fine example where people realized there is a 
problem. The only thing worse than President Kennedy's 
assassination would have been if he had lingered. I think what 
provoked the 25th Amendment was the realization that we were 
totally unequipped to handle that possibility.
    We could handle assassination very easily. The Constitution 
provided for a successor. But the problem that you and Senator 
Simpson are focusing on we are unequipped to handle. It seems 
to me that there is a track record; that one can pass 
amendments dealing with these kinds of important issues that 
ought not divide us politically. It seems to me if the 
Constitution is ever worth amending, this is one of those 
situations.
    Senator Cornyn. Thank you very much.
    Professor Wasserman, some have suggested that no 
constitutional amendment is needed to deal with incapacitated 
members because members can sign a power of attorney or somehow 
designate someone to serve on their behalf if they were 
incapacitated.
    In your view, would that solution work? Indeed, is it even 
constitutional? Would it be okay for me to sign a power of 
attorney and say if I am incapable of serving, then my wife or 
perhaps a friend or some constituent ought to be able to vote 
in the Senate on my behalf?
    Mr. Wasserman. I don't believe so. I think the language is 
pretty clear as to both the House and the Senate as to how 
members can be chosen initially and as to how they can be 
placed in vacant seats. Other than election at the initial 
choosing and then election in a vacancy in the House and 
appointment for a vacancy in the Senate, I think that exhausts 
any possibilities.
    I will say I think part of the resistance particularly in 
the House to the notion of appointments is a sense of distrust 
of Governors, the risk of partisanship in the making of the 
appointments. I think one workable idea--and again a 
constitutional amendment would be necessary as to the House, 
but one workable possibility to overcome the concerns of 
partisanship is to have each member draw up a list of preferred 
successors, and the appointment, under the 17th Amendment, by 
the Governor, if we can get a 28th amendment via the Governor 
with regard to the House, and have the appointment made from 
one of those preferred successors. So you have some sense of 
the popular imprimatur from the elected member on whoever her 
successor will be.
    Number one, the appointing authority should be someone 
other than the successor. And, number two, it is absolutely the 
case that some amendment is necessary because the power simply 
to unilaterally select one's own successor is not allowed by 
anything in the text of the Constitution and frankly is an 
undemocratic concept.
    Senator Cornyn. Senator Simpson, do you have any comments?
    Mr. Simpson. The real key here is ``temporary,'' 
``temporary preferred successors.'' This is the key, and the 
House doesn't seem to hear this that everything we are talking 
about is temporary. Do this maybe for 45 days. After 45 days, 
have whatever elections. I think Howard counseled me on that 
one before. The word here throughout is ``temporary,'' 
``temporary,'' ``temporary.''
    Mr. Wasserman. I agree. I omitted that word, but yes. I 
mean, any of these appointments, even Senate appointments, in 
the context of this worse-case scenario should be somewhat more 
limited in time.
    Senator Cornyn. So I gather, Senator Simpson, it would be 
possible to meld both the current approach in the House, 
Chairman Sensenbrenner's approach to have a 45-day election 
period, and the approach that you propose of a temporary 
appointment to somehow have the best of both worlds, I guess, 
if I understand what you are saying.
    Mr. Simpson. Well, we have thought of everything and had 
the hearings to produce that with this group of commissioners. 
And we just keep coming back to the absoluteness of a 
constitutional amendment, but there are ways to go about it.
    One of the ones was that when you run, you designate a 
person on the ballot who, if there is a vacancy or 
incapacitation, that person will take over your office 
temporarily until the next direct election. That was discussed. 
A lot of those things have been discussed. We are not hard-
nosed on it, but we don't like to get run down the track with 
tar on us, you know, and with feathers, too. That is not good.
    Senator Cornyn. Well, as much of a challenge as it is to 
propose a temporary appointment, I wonder whether the idea of 
candidates designating a successor on the ballot would create 
other resistance. I was reminded when Professor Wasserman was 
talking about trying to depoliticize the selection of a 
temporary successor the old saw that you can't take politics 
out of politics.
    It is kind of like when people talk about redistricting and 
say it is much too partisan, much too ugly, and we need to take 
the politics out of it, and while there are some interesting 
scholarly suggestions, I haven't seen one yet that would 
succeed in taking the politics out of redistricting.
    But I believe from what we have heard this morning in your 
opening statements and the brief Q and I we have had, it sounds 
like we are all pretty much on the same page here. I do want to 
emphasize that in my conversation with Chairman Sensenbrenner, 
I have told him, out of courtesy and out of necessity, that 
certainly the House will do what the House chooses to do and 
that is their decision.
    I do hope that regardless of what the ultimate decision in 
the House is that that does not stop us from getting as good a 
possible product as we can, because simply doing nothing, I 
believe, is not an option. We will just have to work out those 
differences the best we can, respecting differing opinions, but 
also the fact that you have to live with the reality of the 
approach of people who disagree perhaps with the best approach 
to this issue.
    Before we close, I would like to provide each one of you an 
opportunity to provide any concluding remarks that you might 
have, things that we have not discussed that should be 
discussed. Of course, the written testimony that you have 
provided will be made part of the record, without objection, 
and we will leave the record open for a period of time, Monday 
next at five p.m.. We will leave it open until then, so anyone 
who wishes to provide additional written materials may do so 
and those will be made a part of the record of this hearing.
    Senator Simpson, I would be glad to hear you and Professor 
Levinson and Professor Wasserman on any concluding remarks you 
may have. Please proceed.
    Mr. Simpson. A very dangerous thing, Senator, and I am 
going to limit it to one minute. I want to work with the House. 
We have had House members testify before our group. We have not 
had Chairman Sensenbrenner testify, nor present anything other 
than his own bill. I would hope that we could get together and 
talk. I think we need that.
    I am not being compensated for this wonderful activity, and 
we have the AEI and the Brookings Institute sponsoring this 
commission. So if you don't like the right, you can accuse 
them, and if you don't like the left, you can accuse them. So 
we are working together. Our senior counselors are Norm 
Ornstein and Thomas Mann, so we get the best in those two fine 
people, and a fine executive director, John Fortier.
    We are not interested in controversy. We are interested in 
reality. Everything now is reality television. The actuality is 
it happened, it happened. It is not some bubbled-headed dream 
that happened as we watched, and it can happen again. I think 
it is just like writing a will. You don't like writing a will 
because you think you are going to die after you sign it. So we 
are writing a will for America here and we won't die after we 
sign it.
    The other thing that is so fascinating is if the goal of 
terrorism is to destroy our Government and we put something 
together like we have in mind, they will say you can't destroy 
those damn fools; they can reconstruct, they can come back 
quickly. I think people are forgetting that.
    Senator Cornyn. Thank you.
    Professor Levinson.
    Mr. Levinson. I would like just to reiterate one point: 
Should this kind of catastrophe happen and Congress isn't able 
to function, the practical reality is not that nothing would 
happen, but that the President, for good reason in this kind of 
situation, would, in effect, seize power because the one thing 
we know under this sort of condition is that decisions would 
have to be made.
    Anybody who believes, as I certainly do, that, to put it 
mildly, Congress plays an essential role in our constitutional 
system ought not tolerate the possibility of presidential 
dictatorship, even a benevolent one. I think that is one of the 
things that makes this amendment just so crucial.
    Senator Cornyn. Professor Wasserman.
    Mr. Wasserman. Whatever the general opposition or 
apprehension or hesitancy to enact constitutional amendments 
may be, I think the central purpose of Article V was to allow 
for amendments that dealt specifically with the structure of 
the Federal Government, and in particular the processes and 
procedures by which the Government selects the members who are 
going to serve in those offices. Those are the types of things 
that the Framers recognized. They didn't anticipate changes, 
and each generation would make procedural changes accordingly. 
This is precisely that type of procedural amendment that is 
absolutely anticipated by the Framers and which becomes a 
necessity in order to allow the Government to continue 
functioning as it is supposed to under the Constitution.
    Senator Cornyn. Well, thanks to each of you for being here 
today and for arranging your schedules so that we could have 
this hearing. I think this has been very important, and while 
we seem to be at least here singing off the same sheet of 
music, we know that there will be a debate and that debate is 
important. But just as important as the debate, we need 
resolution and we need action. I especially want to thank you 
for coming here during such inclement weather. I am glad you 
weren't deterred.
    Before we adjourn, I would also like to again express my 
thanks to the Chairman, Senator Hatch, and the ranking member, 
Senator Leahy, for their cooperation in this hearing. We will 
leave the record open, as I said, until five p.m. on Monday 
next, February 2, for members to submit documents into the 
record or to ask written questions of any of the witnesses.
    With that, this hearing of the Senate Committee on the 
Judiciary is adjourned.
    [Whereupon, at 10:41 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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