[Senate Hearing 108-701]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 108-701



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


                           SEPTEMBER 9, 2003


                          Serial No. J-108-37


         Printed for the use of the Committee on the Judiciary


96-926                 WASHINGTON : 2004
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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




Cornyn, Hon. John, a U.S. Senator from the State of Texas........     1
    prepared statement and attachment............................    61
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    83
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    17
    prepared statement...........................................   168


Baird, Hon. Brian, a Representative in Congress from the State of 
  Washington.....................................................     9
Dreier, Hon. David, a Representative in Congress from the State 
  of California..................................................     3
Hall, Thad, Program Officer, The Century Foundation, Washington, 
  D.C............................................................    26
Lewis, R. Doug, Executive Director, The Election Center, Houston, 
  Texas..........................................................    22
Ornstein, Norman J., Senior Counselor, Continuity of Government 
  Commission, and Resident Scholar, American Enterprise 
  Institute, Washington, D.C.....................................    20
Wright, Samuel F., Director, Military Voting Rights Project, 
  National Defense Committee, Arlington, Virginia................    25

                         QUESTIONS AND ANSWERS

Responses of Thad Hall to questions submitted by Senator Leahy...    36
Responses of Douglas Lewis to questions submitted by Senator 
  Leahy..........................................................    41
Responses of Norman Ornstein to questions submitted by Senator 
  Leahy..........................................................    45
Responses of Samuel F. Wright to questions submitted by Senator 
  Leahy..........................................................    48

                       SUBMISSIONS FOR THE RECORD

Baird, Hon. Brian, a Representative in Congress from the State of 
  Washington, prepared statement and attachment..................    57
Dreier, Hon. David, a Representative in Congress from the State 
  of California, prepared statement and attachments..............    65
electionline.org, Doug Chapin, Director, Washington, D.C., letter    80
Fong, Cory G., Deputy Secretary of State, State of North Dakota, 
  Bismarck, North Dakota, letter.................................    84
Gans, Curtis, Vice President and Director, Committee for the 
  Study of American Electorate, Washington, D.C., prepared 
  statement......................................................    86
Hall, Thad, Program Officer, The Century Foundation, prepared 
  statement......................................................    89
Ho, James C., Majority Chief Counsel, Subcommittee on the 
  Constitution, Civil Rights and Property Rights, Committee on 
  the Judiciary, United States Senate, Washington, D.C., 
  responses of State and local election officials to inquiries 
  about any 21-day expedited special elections regime............   101
Lewis, R. Doug, Executive Director, Certified Elections 
  Registration Administrator (CERA), Houston, Texas, letter......   171
Ornstein, Norman J., Senior Counselor, Continuity of Goverment 
  Commission, Resident Scholar, American Enterprise Institute, 
  Washington, D.C., prepared statement...........................   177
Paul, Hon. Ron, a Representative in Congress from the State of 
  Texas, prepared statement......................................   195
Phillips, Howard, Chairman, Conservative Caucus, Vienna, 
  Virginia, statement............................................   197
Rice, Charles E., Professor Emeritus, Notre Dame Law School 
  Visiting Professor, Ave Maria School of Law, Ann Arbor, 
  Michigan, statement............................................   202
Schlafly, Phyllis, Constitutional Attorney, Briarcliff, St. 
  Louis, Missouri, letter........................................   206
Simpson, Hon. Alan, and Hon. Lynn Martin, Commissioners, 
  Continuity of Government Commission, Washington, D.C., 
  statement......................................................   207
Washington Times, Continuity of Congress, September 12, 2003.....   212
Wright, Samuel F., Director, Military Voting Rights Project, 
  National Defense Committee, Arlington, Virginia, letter and 
  attachments....................................................   214



                       TUESDAY, SEPTEMBER 9, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn 
    Present: Senators Cornyn and Leahy.

                         STATE OF TEXAS

    Senator Cornyn. This hearing of the Senate Judiciary 
Committee will come to order. I want to thank, first of all, 
Chairman Hatch for scheduling this important hearing.
    Earlier this year, the Continuity of Government Commission 
issued a unanimous report recommending measures to ensure the 
continuity of Congressional operations. That same morning, I 
spoke on the floor of the Senate to praise the commission for 
its hard work and its contribution, and announced that I would 
hold hearings in the Subcommittee on the Constitution on this 
    Shortly thereafter, Chairman Hatch was gracious enough to 
invite me to Chair the full Committee proceedings here, rather 
than through the Subcommittee, and obviously I accepted his 
offer. I want to thank him again today for his leadership of 
the Committee and for giving serious attention, as I do all of 
the witnesses here, to something that needs our attention.
    I also want to express my gratitude to Senator Leahy and 
his staff--Senator Leahy will be here with us shortly--for 
working with my office to put together this hearing, which is 
entitled ``Ensuring the Continuity of the U.S. Government: The 
    Two years ago, America suffered its most destructive act of 
terror in history. Congress responded swiftly. The very next 
week, Congress appropriated funds to bolster national security, 
stabilize our economy, and provide for the families of victims, 
and also enacted legislation to secure our airports and 
authorized the use of necessary military force. To date, 
however, Congress has failed to ensure that the vital 
institutions of our Government will continue to operate on 
behalf of the American people should another attack occur.
    Two years is too long. So this morning we will consider 
what measures are necessary to guarantee continuity of 
Congress. Next Tuesday morning, I will co-chair a joint hearing 
with the Chairman of the Rules Committee, Senator Lott, on 
proposals to reform the presidential succession statute. Future 
hearings on the continuity of Government are also planned.
    Congress cannot constitutionally act without a majority of 
its members. Article 1, section 5, of the Constitution 
expressly provided that a majority of each House shall 
constitute a quorum to do business. Our Constitution is 
explicit on this point because our Founders believed it was 
fundamental to our representative form of Government.
    Alexander Hamilton explained in Federalist 59 that the 
Constitution empowers the States to shut down Congress, if it 
wishes, by refusing to send representatives. In fact, during 
the first Congress, neither the House nor the Senate was able 
to operate for an entire month because a majority of 
Representatives and Senators failed to appear for duty. Both 
chambers had to wait until a quorum, consisting of a majority 
of the whole number, was present.
    This vulnerability was deliberate. As one delegate in 1787 
urged his colleagues, ``In this extended country embracing so 
great a diversity of interests, it would be dangerous to the 
distant parts to allow a small number of members of the two 
houses to make laws.''
    Congressional power exercised by just a handful of members 
is not representative government and it is constitutionally 
dubious. It raises serious questions of democratic legitimacy. 
The Founders properly rejected the notion that a small body of 
members from one region of the Nation might enact national 
legislation or confirm Federal officials who would have 
nationwide jurisdiction.
    This commitment to federalism and national representation 
has a cost, however. Under the Constitution's requirement of a 
majority for a quorum, terrorists could shut Congress down by 
killing or incapacitating a sufficient number of 
Representatives or Senators.
    Our ability to ensure the continuity of Congress under the 
current Constitution is woefully limited. States have the power 
to allow their Governors to appoint Senators in the case of 
vacancies, and 48 States have elected to do so. But the 
Constitution provides no immediate mechanism for filling 
vacancies in the House, nor for addressing incapacities in 
either chamber.
    Vacancies in the House can only be addressed by special 
election. The problem is, of course, that that can take months 
to conduct special elections, for reasons of mechanical 
feasibility, democratic integrity, and the rights of military 
and other absentee voters.
    What is more, incapacities cannot be addressed at all, 
although people often forget this problem affects the Senate no 
less than the House. If 50 Senators were in the hospital, 
unable to perform their duties, or resign, they could not be 
replaced. The Senate could be unable to operate for up to two 
full election cycles, a 4-year period.
    According to the Continuity of Government Commission, a 
bipartisan panel of former Congressional leaders and government 
officials from across the political spectrum, this commission 
has unanimously endorsed a constitutional amendment to ensure 
continuity of Congress in case of catastrophic attack. Just as 
the 25th Amendment ensures continuity of the presidency, the 
proposed amendment would ensure continued Congressional 
operations following a terrorist attack.
    The commission deserves our attentive hearing and 
respectful consideration, as well as the views of Members of 
Congress and others who have views to offer on this subject. 
Our hearing today will explore not only the commission's 
recommendations, but the views of Members of Congress and 
others on this subject.
    As we mourn the tragedy of September 11, we should also 
take some comfort in the fact that further attacks within our 
borders have been thus far avoided. That is true because, in 
part, Congress has upgraded our ability to prosecute the war on 
terrorism and reorganized our Federal Government to bolster our 
efforts at homeland security.
    Had the events of September 11 unfolded differently, 
however, none of this legislation might have been enacted in a 
timely fashion. United Airlines Flight 93 was likely headed for 
the Capitol. But for a late departure and the ensuing heroism 
of passengers on board, the ability of Congress to function 
might have been destroyed.
    In an age of terrorism and a time of war, few things could 
be more important than ensuring that the U.S. Government, the 
Nation's most vital instrument of national security, is 
failsafe and fool-proof against even the most devious and 
destructive of terrorist plots.
    No one likes to plan for their own demise, but the failure 
to do so, in my opinion, in this regard would be not only an 
abdication of our duty, but it would be foolish and dangerous. 
We must therefore begin the process of sending the message to 
terrorists that there is nothing they can do to stop the 
American Government from securing freedom here and around the 
globe. Two years is too long and the time to plan for the 
unthinkable is now.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    We have on our first panel two distinguished members of the 
House of Representatives, Hon. David Dreier and Hon. Brian 
    Gentlemen, we appreciate you being here today to offer your 
    I know Senator Leahy is coming. Ordinarily, I would turn to 
him for his opening statement, but we will break and do that 
when he is able to be here with us. So at this time, I will 
recognize Hon. David Dreier for his opening statement.


    Representative Dreier. Well, thank you very much, Mr. 
Chairman. Let me say that our friend, Orrin Hatch, has been 
known for having made some great decisions. Clearly, his most 
recent was to have you preside over this full Committee 
hearing. Once again, Orrin Hatch has demonstrated his 
brilliance. We are happy to have you presiding over it. As you 
know, I have long been an admirer of yours and your work in 
Texas, and appreciate the fact that you are deliberatively 
taking on this challenge with a very open mind as you look at 
the very fine recommendations that came forward from the hard 
work of the commission, and also the responsibility that we 
    You are absolutely right. I mean, you are the only Senator 
who is here right now. There are two members of the House of 
Representatives here. You have some other distinguished 
witnesses, but this is obviously not an issue that we like to 
spend a lot of time contemplating.
    As you said in your opening remarks very appropriately, 
planning for your demise is not something that is particularly 
intriguing, but we do have a responsibility to look seriously 
at the challenge of the continuity of Congress.
    Your closing statement was really right on target. It is 
important for us to send a signal to those who would do in the 
United States of America and our Government that we are going 
to ensure that, as President Bush demonstrated 2 years ago this 
week, we are going to be able to stand up to them and ensure 
that there is a continuation of this very, very important 
experiment that we have in representative democracy.
    So I congratulate you for holding the hearing and for your 
focus on this issue. Of course, it is, again, as you pointed 
out, very timely, as this week marks the second anniversary of 
September 11. I do believe that we have, obviously, as I have 
said, some real challenges ahead of us.
    My message, Mr. Chairman, is a pretty simple and basic one, 
and that is I want to encourage people to go slowly on this. I 
was just talking to my friend, Norm Ornstein, who is going to 
be testifying here in a few minutes, and he said he has spent a 
lot of time looking at this and he has come to the conclusion 
that the constitutional amendment is the right thing. I am not 
there. I want to say that I do believe that we just need to be 
very, very careful before we look at that as the panacea.
    I have in my written testimony, which I hope you and your 
colleagues will have a chance to look at, gone through some 
very detailed analyses of the findings of the Commission, as 
well as some overall thoughts and recommendations that I hope 
you will look at.
    You said that we are from the people's House. Brian has 
worked very hard on this issue, as well, and I have the highest 
regard for him. But I want to say that I would like to begin by 
quoting a very distinguished former member of the U.S. Senate, 
the late Senator John Stennis, from Mississippi, when he said, 
``I believe it is one of the great heritages of the House of 
Representatives that no person has ever taken a seat or cast a 
vote in that body except by virtue of election by the people. 
That is a great pillar of our form of government.  .  .'' I 
think Senator Stennis was right on target when he made that 
    As you know, the idea of a constitutional amendment to 
allow for appointment of Representatives following a national 
crisis is not a new idea. It is something that has been 
contemplated before, more by this body than the other body.
    During the Cold War, a great number of constitutional 
amendments were proposed and at least three passed here in the 
Senate. However, even facing the prospect of mass attacks from 
numerous Soviet nuclear warheads and chemical and biological 
weapons, resulting in the decapitation of not only the Capitol, 
but most of our major cities, the House chose to oppose 
amending the Constitution to allow for appointment of its 
    The House has always been known, Mr. Chairman, as the 
people's House. The Constitution requires, under Article I, 
section 2, that the House ``be composed of Members chosen every 
second year by the people of the several states.'' Now, many in 
the House revel in the fact that every member of the body has 
always been elected. There has been no exception, as that is 
what the Constitution has dictated. In fact, the House of 
Representatives, as you know, is the only Federal office where 
no one has ever served without first having been elected, and I 
think that is something we really need to underscore.
    The Senate has always been filled differently from the 
House. Originally constituted by appointment by the State 
legislatures, it was not until the 20th century that the Senate 
became directly elected through the 17th Amendment to the 
Constitution that provides that ``the Senate of the United 
States shall be composed of two senators from each state 
elected by the people thereof.  .  .''
    The 17th Amendment further outlines how the executive 
authority shall issue writs of election to fill vacancies, but 
the legislature from any State ``may empower the executive 
thereof to make temporary appointments until the people fill 
the vacancies by election as the legislature may direct.'' 
Thus, the amendment allows for temporary appointment and 
election under control of the State legislature.
    We hope, Mr. Chairman, that Senators will be able to 
understand why I and many of my colleagues are pursuing a 
statutory approach, pursuant to another constitutional 
provision, which is Article I, section 4. We contend that this 
provision is part of the Constitution to allow the institutions 
to preserve themselves through elections which Congress can 
    The provision states, ``The times, places and manner of 
holding elections for Senators and Representatives shall be 
prescribed in each State by the Legislature thereof, but the 
Congress may at any time by law make or alter such regulations, 
except as to the places of choosing Senators.''
    We believe that a Federal law should be passed requiring 
the States to have a mass vacancy special election within a 
very limited time period. I will talk specifically about our 
proposal in a moment, Mr. Chairman, but the real point is for 
you to understand that any constitutional amendment calling for 
appointment of House members will meet considerable opposition 
in the House, clearly complicating the passage of it. I would 
urge you to examine our approach as the best method of 
preserving our institutions in times of crisis.
    Mr. Chairman, the Founding Fathers created a republic which 
has become the longest continuous constitutional democracy in 
the world, and they did so with unparalleled genius. The 
Framers did not come upon this great document in a single flash 
of inspiration. Rather, they spent months, as you know very 
well, discussing, arguing and voting on the subject of how the 
Government should be formed. In the end, they wisely created a 
House and a Senate with differing size, constituency, term of 
office, procedural rules, duties, and prerogatives.
    Nor did they casually adopt the direct election of 
Representatives by the people, while granting States the power 
of selection of Senators. However, many came to believe as the 
delegate James Wilson, when he stated his desire for a vigorous 
Government whose power ``flow[s] immediately from the 
legitimate source of all authority--the people.  .  .The 
government ought to possess not only
.  .  .the force but [also].  .  .the mind or sense of the 
people at large.''
    Delegate George Mason concurred: ``The people will be 
represented [in the House]; they ought therefore to choose the 
representatives.'' Delegate John Dickerson considered it 
``essential that one branch of the legislature should be drawn 
immediately from the people; and as expedient that the other 
should be chosen by the Legislatures of the States. This 
combination of the State Governments with the National 
Government was as politic as it was unavoidable.'' Of course, 
the Father of the Constitution, Mr. Chairman, James Madison, 
held that it was ``a clear principle of free government'' that 
the people must always elect at least one branch of the 
    In the end, the Constitutional Convention delegates saw, as 
Hamilton noted in Federalist 59, that direct election by the 
people, and not selection, which could be held hostage to the 
whims or even inaction of State government leaders, is the only 
way to ensure a national government, one that reflects the will 
of a majority of Americans. Hamilton sums up this thought on 
this provision of the Constitution with his very famous 
statement that ``Every government ought to contain in itself 
the means of its own preservation.''
    Now, Mr. Chairman, I will tell you that I am going to just 
take a moment to go through our legislation and I do want to 
say that one of the members of the commission, highly 
respected, our former Minority Leader, Bob Michel, has said 
that a constitutional amendment should really be the last 
resort. Mr. Chairman, I would say that the Constitution itself 
contemplates this process in Article I, section 4, where it 
gives to the Congress, again, the power over the times, places 
and manner of election.
    I have joined with several of my very distinguished 
colleagues in support of legislation that provides for 
expedited special elections to fill mass vacancies in the 
House. The list of the cosponsors: I am joined by the Chairman 
of the House Judiciary Committee, Jim Sensenbrenner; Steve 
Chabot, from Ohio, who is on the Judiciary Committee. The 
former Secretaries of State who serve in the House of 
Representatives, Tom Cole, who is from Oklahoma, and Candice 
Miller, who is from Michigan, join. And, of course, your fellow 
Texan, Ron Paul, who, as, we all know, is an ardent 
constitutionalist, is also a cosponsor of the legislation.
    The legislation operates within the checks and balances 
underpinning our Constitution and recognizes, as Madison did in 
Federalist 52, that ``It is particularly essential that the 
[House] should have an immediate dependence on, and intimate 
sympathy with, the people.  .  .[E]lections are unquestionably 
the only policy by which this.  .  .can be effectually 
    Our bill, the Continuity of Representation Act of 2003, 
H.R. 2844, protects the people's House. It requires expedited 
special elections for the House in the case of a catastrophe 
that results in more than 100 vacancies, such as would be the 
case if, for example, as you discussed in your opening remarks, 
as well-planned terrorist strike were to be tragically 
    If such exceptional circumstances exist as having more than 
100 House members killed, this legislation allows the Speaker 
of the House to call for rapid special elections in order to 
reconstitute the House. This approach has the support of the 
Speaker of the House, Dennis Hastert, who said it would allow 
Americans to ``retain their local voice in Washington.  .  
.without changing the Constitution.''
    The report of the commission begins by stating, ``On 
average, states take 4 months to hold special elections, and in 
the aftermath of a catastrophic attack, elections would likely 
take much longer.''
    Now, Mr. Chairman, this four-month figure is based on an 
average reached by looking at the special elections since the 
99th Congress. This average is a small sample by which to judge 
a situation with mass vacancies. Looking more broadly, the 
report contains data showing that more than one-third of the 
States have laws limiting the time on special elections from 28 
to 127 days, averaging 84 days.
    We believe that elections, especially in times of crisis, 
can take place in a much shorter period of time. The report by 
the commission postulates later that under the current 
constitutional arrangement, there is no effective way to begin 
filling House vacancies in less than 3 months after an attack.
    The data provided by the report of the commission shows 
that currently laws are in effect to start the filling of 
vacancies earlier. Eight States currently have special 
elections limited to less than 90 days, with the average being 
55 days. There are also 6 States averaging 90-day limits. This 
means that after vacancies are declared, then 14 States under 
their current laws would begin filling their vacancies. These 
include New York, California, and Texas, with substantial 
populations, as you and I certainly know, Mr. Chairman. Judging 
the impact of mass vacancies on special elections solely on the 
relatively few special elections sampled shouldn't carry that 
much weight.
    Now, as I mentioned, a number of States already have 
special elections laws that provide in non-emergency 
circumstances for rapid elections, no later than 28 days in 
Minnesota and between 30 and 40 days in New York. California, 
my State, has provisions for special elections in the event of 
a catastrophe that require them to be held within 63 days, 
while special elections in non-emergency situations have up to 
119 days.
    It is not unreasonable to think that the American people in 
individual districts across the Nation can choose a 
representative in 21 days. If September 11 showed us anything, 
it is that Americans pull together in times of disaster and 
they accomplish amazing things.
    Indeed, we believe that it is just loopy or silly to argue 
that finding polling places, printing ballots, and assembling 
volunteers, as some have tried to suggest, would stand in the 
way of the national will to reconstitute the House of 
Representatives in a time of crisis.
    Some of those who advocate a constitutional amendment to 
appoint temporary stand-in members, Mr. Chairman, justify the 
need for appointing members because of the vitally important 
business that must be done immediately by the House of 
Representatives in the wake of a national crisis. In my view, 
the Framers intended that such important decisions should be 
made in the House not by someone who is selected for the 
people, but by someone who is elected by the people.
    Mr. Chairman, the Senate does not need a constitutional 
amendment to deal with vacancies. You have one already, as you 
know, the 17th Amendment. One must ask, is there some desire on 
the part of some Senators to nationalize Senate appointments by 
requiring Governors to choose only from a pre-selected list of 
candidates? Suffice it to say that many questions for 
appointment do remain unanswered.
    Let me summarize, Mr. Chairman, by saying that I am 
troubled by the language of the amendment that the commission 
recommended. Yes, it does appear simple in form, but I am 
concerned that beneath its plain brown wrapper lies the 
constitutional equivalent of a computer virus or worm. Over 
time, I am concerned that it will eat away at other provisions 
of the Constitution, forcing the Framers' checks and balances 
to crash under the potential statutory fixes that such an 
amendment would allow.
    Moreover, the commission has left unanswered a much more 
difficult question, and you raised it in your remarks, and that 
is incapacitation, particularly mass incapacitation. Unlike 
vacancies, incapacitation has never been fully addressed by the 
Congress, and the commission acknowledged the problems inherent 
in answering this whole issue.
    Mr. Chairman, let me close by saying that I understand the 
desire for expediency in times of crisis. Appointing stand-in 
members by the executive in each State or through a list of 
heirs to the seat provided by each sitting Representative may 
seem expedient, even prudent, to some. It may seem easier than 
planning, creating, and implementing the infrastructure 
necessary to ensure rapid and fair elections in the face of 
mass vacancies.
    However, Mr. Chairman, in the long term I believe that 
after a national crisis, when large numbers of members of the 
House have been killed, and even the existence of our republic 
may be at stake, we should still choose to have faith in 
elections and not selections. In a national crisis, printing 
ballots and conducting elections will not be insurmountable 
obstacles to Americans. Legitimacy, not expediency, should be 
our concern, and I believe that America is up to the challenge.
    Again, I thank you very much for holding the hearing. I do 
have a chart that I would like to commend to you that I would 
like to include in the record which does go through the time 
frame for holding special elections.
    As you know, we have an election that is coming up four 
weeks from today in California. It is a very unusual recall 
election. This process has existed since 1911 and we have never 
seen it, and I will tell you people are trying to describe it 
often as a zoo and a circus and all kinds of things.
    But I will tell you that it is fascinating how the people 
are going to be making this decision and making this choice, 
and it is being done in an expeditious manner, taking into 
concern a number of the issues that you raise, as there have 
been four or five court challenges to this that have come 
forward and it still is moving ahead.
    I would also like to include, Mr. Chairman, specific 
references to the constitutional provisions that do insist upon 
and allow for the provision of elections.
    I thank you very much for holding this hearing and for your 
forbearance in letting me go through my testimony.
    [The prepared statement of Representative Dreier appears as 
a submission for the record.]
    Senator Cornyn. Thank you, Congressman Dreier, for your 
thoughtful comments. I know there is a divergence of opinion, 
and that is not a bad thing. We are going to hear from others 
who have different views, but it is very helpful to have the 
benefit of your views. Certainly, your written statement and 
that of Congressman Baird and all other witnesses will be made 
part of the record, without objection.
    I do want to at this time make part of the record letters 
that we have received from State and local officials--and you 
and I discussed this very briefly before the hearing started--
expressing some concern with expedited elections and the 
challenges that that would present to them.
    I want to now turn to Congressman Baird and allow him to 
give his opening statement, and then I will have a few 
questions for each of you and let you go back to work on the 
other side of the dome.


    Representative Baird. Thank you, Mr. Chairman. I commend 
you for recognizing the importance of this issue, and Senator 
Hatch, as well, and Senator Leahy.
    It has been too long. I have great respect for Chairman 
Dreier, and he is wise in suggesting that we not move hastily 
to solve this issue, but it has been 2 years. The entire 
Constitution was written over the course of a summer, and it 
has been 2 years that we have known about this fundamental core 
vulnerability not only in the continuity of the House of 
Representatives, but in the presidential succession, and we 
have failed to act.
    Fortunately, we have not had a necessity to take recourse 
in whatever solution we might come up with, but that is due to 
good fortune and perhaps our actions in preventing the 
terrorists. But should that day arise when we need to have a 
solution to the continuity question and we have not solved it, 
we will have done a grave disservice to this country and to the 
    I am somewhat haunted by what I believe is a very real 
possibility that the American people are going about their 
daily business and suddenly the announcement comes across the 
television and the radio that we have received word of a 
nuclear weapon being detonated in the Nation's Capital. All 
members of the House and Senate are believed to have perished. 
The President and the Vice President and most members of the 
Cabinet who were in D.C. at the time, the Supreme Court, 
thousands of Government workers, and even more average 
civilians are believed to have been killed. We will have more 
news in a minute.
    If that announcement happens, we absolutely must have a 
constitutionally unambiguous means of telling the American 
people what happens next. How do we put our Government back 
together? Where are the fundamental pillars of checks and 
balances, separation of powers? Who fills what post, and how do 
we get this wonderful democratic republic back on its feet 
    We cannot have prolonged periods of uncertainty and 
ambiguity, we cannot have power struggles. The situation we 
face today leaves the door wide open for precisely those 
    Tom Mann and Norm Ornstein and their working group are to 
be tremendously commended for their efforts in trying to 
address this, and I think they have made some outstanding 
recommendations. I don't agree with all of them, but their 
ground work in understanding the scope of the problem and 
proposing different solutions is admirable and of tremendous 
service to this great country. On top of that, the working 
group within the House of Representatives, chaired by Chris Cox 
and Martin Frost--and Chairman Dreier was part of that as 
well--I believe did an extensive review of a number of these 
issues. So when we say we must not act hastily, that is true, 
but we have had 2 years to look at this and I think we have a 
sense of what the problems are.
    What I would like to do very briefly is respond to some of 
the concerns of those who have legitimate questions about the 
issue of temporary replacement, then suggest a possible 
    First of all, all of us who serve in the House of 
Representatives are justifiably proud that we serve in a body 
to which one must be directly elected. That tradition is as old 
as this country and we are proud and honored to be part of that 
    But at the same time, we must recognize that we live in a 
time in which sudden and complete destruction can rain down 
upon this body and upon this Nation, and we need to prepare for 
that. It is a possibility that I do not think was 
contemplatable by the Framers. Frankly, in their day, if 
someone had managed to kill all of the Senators and House 
members and the President and Vice President, we had lost a war 
and that was it. Today, it is entirely possible to kill all of 
us and the Nation preserves. The question is who governs that 
nation and how do they govern it during that time of crisis?
    So we have to recognize the importance of the tradition of 
direct election, but we also have to recognize that new 
conditions may require new solutions, and I would argue that 
the sudden destruction of the Capitol is a new condition.
    I would also suggest that some of the issues that have been 
raised about how we might cope, I find intellectually 
unsatisfying. For example, some people have suggested that we 
can do entirely without a House of Representatives for a period 
of five weeks or more. During the five weeks post-September 11, 
a number of essential acts were performed by the Congress, the 
House and Senate working together, that presumably would be put 
on hold.
    I find it supremely ironic that those who steadfastly 
adhere to the principle of direct election of the House would, 
through that very insistence, allow the entire country to be 
run by thoroughly unelected individuals, most likely Cabinet 
members, who frankly most Americans probably have no name 
recognition of, who were never elected, and who would fill the 
role of the presidency, presumably then assume extra-
constitutional powers, including possibly the declaration of 
war and the launching of nuclear weapons.
    So to say that the principle of direct election is 
important is absolutely true, but principles of separation of 
powers and checks and balances are equally true. And I think 
you could look through either party administrations over the 
last several decades and say there are some Cabinet members 
with whom we would all be comfortable should they fulfill the 
role of the presidency.
    I still, regardless of how much I respect those 
individuals, respect that they should have checks and balances, 
particularly with the declaration of war. But I would add that 
there have been Cabinet members or Presidents Pro Tem of the 
Senate or Speakers of the House whom we may not necessarily 
feel so comfortable with were they to move to the presidency 
with no checks and balances. So for me, it is again ironic to 
say that election by the people is so essentially important 
that we will let unelected people run this country with no 
checks and balances.
    I also believe that it is tremendously important that we 
recognize the realities of what might happen if we try to 
expedite an election in the way some have suggested. One of the 
proposals calls for the major political parties to nominate the 
candidates who would serve in the hastily arranged special 
elections. There, it seems to me we have an immediate 
disenfranchisement of the people to a significant degree. I am 
not sure how independent parties would be handled in that.
    But beyond that, if you expedite election in three weeks, 
are we doing this in the name of an election or do we actually 
have a contemplative process in which people can thoroughly 
evaluate the qualifications of the candidates and the 
candidates have the opportunity to present their views before 
the people?
    As an alternative to either leaving the House vacant for 
five weeks or more, to leaving an unelected person in charge of 
the entire country, to a rushed election that doesn't do 
justice to the process, it is possible to suggest that we 
temporarily appoint replacement for House members.
    Now, let me use my State as an example. In the State of 
Washington, a number of tremendous statesmen could be nominated 
to fill those posts, and let me share with you some of these 
folks you know well. Senator Slade Gorton is from the other 
party, but I have to tell you if I were to perish and he were 
to be nominated in my stead, he would do an outstanding job of 
taking care of this country in the brief interim until a 
special election could take place; former Speaker of the House 
Tom Foley, Al Swift, Sid Morrison--people from both parties 
with exemplary qualifications, statesmen and states women who 
would serve this country with great skill in a time of profound 
    Are we to believe that these experienced, accomplished, 
wise individuals, if temporarily appointed, would be worse for 
the country than a complete vacancy of House functions and the 
assumption of extra-constitutional authority by unelected 
people filling the role of President? I find that somewhat of a 
    The people in electing us to be their representatives here 
thereby empowered us to make profound decisions on their 
behalf, decisions about whether or not the country goes to war, 
decisions about taxation, indeed decisions about all the laws 
of this land. It follows, to me, that an amendment that would 
authorize elected representatives to appoint temporary 
replacements in the event of their death or incapacity would be 
an acceptable response in the short term.
    Mr. Dreier is correct. We do not want to abandon the 
principle of direct election in the House. No one is suggesting 
that over the long run. What we are saying is that 
extraordinary circumstances may call for special conditions and 
special responses.
    At most, I think these appointed individuals would serve 
for three to 5 months, depending on the circumstances necessary 
for a direct election. But in that time, important work would 
be done, and I think they would do it well if chosen wisely. 
They would, at the same point, be subject to subsequent 
election. The Framers argued that one of the constraints upon 
the actions of elected representatives is the prospect of a 
subsequent election. That would apply to those who were 
    So the principle I am trying to address here is, yes, we 
value direct election, but we also value the House of 
Representatives and its constitutional authority, and I don't 
want to abandon that for five weeks or more during the time of 
gravest national crisis to people who are almost entirely 
certain to be unelected.
    We can pretend that a handful of people under the House 
rules constitutes a legitimate House of Representatives, but I 
agree with the Chairman's opening remarks that I don't that 
squares with the Constitution. We can console ourselves and 
suggest that, no, they can't kill us all, but the pictures I 
have seen of Hiroshima and Nagasaki suggest otherwise.
    We can imagine that in time of crisis, universal sagacity 
is imposed or imbued upon those survivors, but my experience of 
crisis has been quite the contrary. Instead, I believe we must 
look squarely at this. We must provide a solution, and should 
that horrific day arise, following the announcement of our 
demise there must be clear-cut, unambiguous methods of 
replacing us so that the American people, and indeed the world 
can have confidence that their Government is up and running 
again and has a legitimate constitutional mechanism for doing 
so, and that the posts are filled by wise and decent people.
    I thank the Chairman for this opportunity and look forward 
to answering questions.
    [The prepared statement of Representative Baird appears as 
a submission for the record.]
    Senator Cornyn. Thank you very much, Congressman Baird.
    I have been handed a note that says that Senator Hatch will 
unfortunately not be able to attend the hearing in person due 
to unforeseen circumstances. He and others will have and do 
have written statements that will be made part of the record in 
this proceeding.
    As usual, and as our colleagues in the House know, there 
are Senators with other conflicting hearings. Indeed, I am 
missing a Senate Armed Services hearing by being here today. Of 
course, that is why we have the crack staff we do to help us 
monitor what is going on. Certainly, all those statements will 
be made part of the record.
    I wanted to just note that Congressmen Dreier had mentioned 
the distinguished group of his colleagues who support his 
proposed statutory change to address these concerns.
    I also note that, Congressman Baird, you have 86 cosponsors 
at last count for your House Joint Resolution 67.
    Maybe, Congressman Dreier, let me ask you to take a stab at 
this first. Given an apparent division in terms of the approach 
to address what we all agree is a problem, how are we going to 
bridge that gap between those who believe that a constitutional 
amendment is required and those that think that a statutory 
change will be sufficient?
    Representative Dreier. Well, Mr. Chairman, thank you for 
that. I will say that I think we have just done it here today 
because Brian in his very thoughtful testimony has made some of 
the most compelling arguments for my legislation imaginable. He 
began his presentation to you, Mr. Chairman, by saying that we 
have gone for 2 years without acting, and he is correct. As we 
look at what took place 2 years ago, there has been no action 
    Now, the proposal for a constitutional amendment will, as 
you know very well, take, as constitutional amendments have in 
the past, on average, 7 years for ratification. So if we were 
to proceed with this structure--and I don't think it would get 
through the House of Representatives and I don't know if it 
would get through the Senate, but by the time we went through 
the process of passing it through both the House and the 
Senate, then sent it to the States for ratification, it 
clearly--and, again, the average is 7 years--could take a very, 
very long period of time.
    So I would argue that that means that we should responsibly 
step forward with our legislative solution, which is what the 
Constitution calls for on this, and I think that would be an 
effective way to bridge it.
    The other point that he makes is a very interesting one. 
Brian talks about unelected leaders and those in the executive 
branch. Well, as you know, Mr. Chairman, if you look at, as I 
said in my remarks, the Constitution, we know that someone can 
become Vice President or President of the United States through 
appointment, as we saw with President Ford.
    Obviously, he was confirmed by the United States Senate 
when he was nominated to be Vice President of the United 
States, but he became President. And all of those other 
positions, by definition in the U.S. Constitution, are 
appointed; those Cabinet members are appointed, confirmed by 
the Senate, but appointed. So we have a structure of, for lack 
of a better term, many unelected people. Obviously, the 
President and Vice President are, by design of the 
Constitution, preferably elected by the people, but the others 
serve by appointment.
    Again, I get back to the fact of do we need more unelected 
people. Again, Brian criticized unelected people basically 
running the Government, but what we would have is, through the 
body that is by design from the Framers to be elected, we would 
have unelected people if we went the route of replacing it with 
our very distinguished former colleagues that he mentioned from 
his State, or if we had this whole idea of members behind us.
    So I think that we have come to a solution here, and I have 
always said, as our former Minority Leader, Bob Michel, said, 
the constitutional amendment should be the last resort. So why 
don't we look for, as the Constitution has put into place, a 
legislative solution, which frankly we could move reasonably 
expeditiously, juxtaposed to the constitutional amendment, and 
let's see how that works and if it can, in fact, be effective?
    So I think this hearing that you are presiding over, Mr. 
Chairman, has, in fact, gone a long way toward bridging that, 
as I think we could come together with what would be tantamount 
to a reasonably immediate solution under the standard 
strictures that exist for the process of lawmaking.
    Senator Cornyn. Congressman Baird, do you agree with 
Congressman Dreier that we have a budding consensus here in the 
House of Representatives?
    Representative Baird. I think we are a good ways away from 
it, and the reason is--
    Representative Dreier. I am always very optimistic, Mr. 
    Representative Baird. I appreciate the Chairman's optimism.
    Representative Dreier. I look at the world through rose-
colored glasses.
    Representative Baird. We are a ways away from it because 
what has been proposed will make us feel like we have solved 
the problem without solving the problem.
    My concern was not solely about whether or not the 
executive branch would be served by unelected people. What I 
was trying to point out is that those who adhere so 
profoundly--and I respect their adherence to it--to direct 
election of the House would, in that adherence, allow 
completely unelected people to run the entire country with no 
checks and balances, and I find that paradoxical.
    What they are doing essentially, I believe, and I find it 
deeply troubling, is disempowering the legislative branch. 
Effectively, what their solution--and I will say that in 
quotes--does is say that for a period of up to five weeks or 
more, Article I of the Constitution is hereby suspended.
    If the Framers had wanted us to statutorily be able to 
suspend Article I of the Constitution, I don't know why they 
made it Article I and spent so much trouble working on it. But 
in the absence of a House for five weeks, I don't think the 
executive has any choice, nor do they have any constraints 
should they choose not to exercise that but to act, to take 
this country into war, possibly nuclear war, to spend untold 
numbers of funds, to change fundamental laws, to impose marshal 
law, et cetera.
    What I am saying is checks and balances and separation of 
powers are equally important in the principles of the 
Constitution, perhaps more so than would be a 3- to 4-month 
deviation from direct election in the case of the House of 
Representatives. And I would underscore that we are still 
calling for prompt, direct election. What I am saying is do not 
have a period in which Article I of the Constitution no longer 
    As for the ratification notion, I would underscore that 
when I first introduced the proposal that Governors appoint 
temporary replacements, this was in the context of immediate 
post-9/11 concerns. We were about to go to war. At the time, we 
did not know where Pakistan was going to be on that. We did 
know Pakistan had nuclear weapons and we didn't know what else 
Al Qaeda might have up their sleeves. I felt it was important 
to get some mechanism through this body to be available to the 
people should they have, unfortunately, the need to act on 
    This notion that ratification takes 7 years, I think, is 
specious and a straw man, quite frankly. If this body could 
agree upon a constitutional amendment, then put it before the 
people in the very spirit of those who believe, as do I, that 
the people should have such power, the people through their 
States. Put it before the people.
    Does anyone doubt that if we had a viable mechanism of 
replacing the House, possibly the Senate--we already have the 
Senate, but if we had a viable mechanism of replacing the House 
in a time of crisis, that the legislators would not promptly 
convene and ratify this amendment so that we could get the 
Constitution functioning and the House of Representatives back 
up and running?
    It is in the best interest of the State legislatures and of 
the States to have a House of Representatives. We are the 
Representatives, and so too would be the temporary designees. 
Or do they prefer to have no representation in the House of 
Representatives, to abandon Article I for a period of five 
    I believe we could ratify this, if the time came, very 
promptly. Quite frankly, even lacking that urgency of that 
situation, I believe most States, certainly the people in my 
State--when I talk to people at town meetings, they tell us you 
folks ought to fix this.
    What I would suggest is this: How do we get consensus on 
this? We are not going to get consensus, but let's bring it 
before the bodies for debate. What troubles me the most is that 
2 years after 9/11, in the House of Representatives we have had 
a working group. The Continuity Commission has done their work. 
We have had one hearing in the Judiciary Committee, but this 
has not received attention at the public level by the full 
    More than 218 members of the House of Representatives 
signed a letter 2 years ago, at the end of the last Congress, 
asking the Speaker of the House to bring this forward, to move 
this forward through a bipartisan committee. That has not been 
done. Two years is too long. Tomorrow, we could need this.
    Senator Cornyn. Well, hopefully, this hearing is the 
beginning of a re-starting of a discussion and hopefully will 
help expedite consideration of whatever solution is ultimately 
determined by the Congress and by the people.
    I know we could ask a lot of questions and there is going 
to be a lot of debate on this, as there well should be, but let 
me just ask one final question of Congressman Dreier 
particularly as regards to concerns that have been expressed by 
some, and I have shared some of those with you, about expedited 
elections and what that does to potentially disenfranchise some 
important elements of the electorate, for example, our military 
and others. That is a concern.
    Could you give me your thoughts on that, please?
    Representative Dreier. Mr. Chairman, we learned through the 
election of 2000 that democracy is a work in progress. I like 
to often tell the joke that on July 2 of 2000 I had the honor 
of co-leading an election observer team to Mexico with your 
fellow Texan and my good friend, our former Secretary of State, 
James Baker. We co-lead a 75-member election observer team.
    I serve on the board of the International Republican 
Institute and we regularly are out there as Americans observing 
elections all over the world, so a joke that on the night of 
July 2, Jim Baker and I stood in the hills above Puebla, 
Mexico, checking the validity of ballots, and 3 months later 
Jim Baker was doing the exact same thing in south Florida. So 
the point is a very clear one. Democracy is, in fact, a work in 
    I would argue that I am always concerned about 
disenfranchising voters, and we regularly hear cases of voters 
being disenfranchised. But I would argue that as we week to 
ensure that voters are not disenfranchised, we should not 
disenfranchise every single voter, because this proposal 
basically does that.
    My legislation calls for 21 days, and some argue that that 
is too short a period of time and again I have got these 
examples. It may not be exactly 21 days, but this notion of 5 
weeks is, to me, not a correct one. I think it can be done 
within 21 days.
    You know, James Madison said the problems of democracy are 
solved with more democracy. It seems to me that as we look at 
that, I wouldn't say that the problems created, as Brian 
pointed out in his last exchange with you, of unelected leaders 
are solved with more unelected leaders. I think that we need to 
get back to that core.
    So we are always going to seek to ensure that there are no 
disenfranchised voters, and we should seek to do everything we 
possibly can to see that the military and others are able to 
participate in these elections. But there is nothing to say 
that with that time frame that we have that having communities 
come together as they look at feeding and clothing their 
children in the wake of a horrible tragedy--that choosing their 
leaders is a very important part of that process. It is the 
basis on which the United States of America was founded and I 
think that we need to ensure that that stays in place, and we 
will seek to ensure that everyone does have that right to 
    It is nice to see my friend, Senator Leahy, here.
    Senator Leahy. Good to see you.
    Representative Dreier. Good to see you.
    Representative Baird. Could I respond very briefly?
    Senator Cornyn. Congressman Baird, if you do have a brief 
response, and then I need to recognize the Ranking Member.
    Representative Baird. Yes, thank you. First of all, 
welcome, Senator Leahy, and thank you for your presence and 
your leadership on this.
    My only response would be this: We do not disagree there is 
a straw man being created as if we are favoring--those of us 
who favor appointment are somehow opposed to election. Not at 
    The two areas of disagreement are these. One, do we have no 
Congress, no Article I of the Constitution during that interim? 
I believe that is a mistake. Two, should the elections take 
place in a time that allows a truly deliberative process and 
that is practically functional in a time of national crisis? 
Three months, I believe, is reasonable, but I think it is an 
error to try to push that so quickly that you disenfranchise 
people or lead to a distorted process.
    So we are not disagreeing that elected representatives are 
the ideal. Nobody is disagreeing with that in this body. What 
we are disagreeing with is the imposed time frame and we are 
disagreeing with whether or not you leave the House of 
Representatives non-existent or to be run by a small handful of 
people during a time of grave national crisis.
    Senator Cornyn. Thank you very much.
    I am delighted that Senator Leahy, the Ranking Member of 
the Senate Judiciary Committee, could be here and present his 
opening statement and participate in the hearing. As he 
observed, I think one reason why we are a little light in terms 
of physical presence of members today is particularly because 
of a Senate Armed Services Committee hearing on the conflict in 
Iraq and the President's recent proposal of Sunday night in 
terms of supplemental appropriations and the like.
    With that, let me turn the floor over to Senator Leahy.

                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. I am delighted to 
see two friends from the other body over here.
    It is interesting that we are doing this, of course, almost 
on September 11. It is one of those things like presidential 
assassinations; we all know exactly where we were at that time. 
We also are well aware of the fact that the Capitol building 
that we all go to work in everyday was probably targeted for an 
attack, and we have to assume that it will continue to be as Al 
Qaeda plots in their hide-outs in Afghanistan, Pakistan, and 
Saudi Arabia today. We know if they do as they have in the 
past, as they did with the World Trade towers, they will try to 
win this time around.
    For the Senate, it is fairly easy. Under the Constitution, 
in the event of a Senate vacancy, even in a national tragedy, a 
State governor--if authorized by the State legislative--can 
appoint a replacement to seve in the Senate until such time as 
the State laws or State constitution require an election.
    There is no similar provision for filling House vacancies, 
and for very real reasons. The Founders of this country wanted 
to make sure the House was as directly elected by the people 
and in as representative a capacity as possible. Elections are 
required to fill House vacancies, and depending upon the State, 
the elections can take some time.
    Unlike in the Senate where we can have appointed Senators, 
at least for a period of time, every person who has served as a 
member of the House was elected to that office by the people of 
his or her district. James Madison said the ``definition of the 
right of suffrage is very justly regarded as a fundamental 
right of republican government. It was incumbent on the 
Convention, therefore, to define and establish this right in 
the Constitution. To have left it open for the occasional 
regulation of the Congress, would have been improper for the 
reason just mentioned.'' So we do have a very heavy burden, 
obviously, to consider carefully whether to amend the 
Constitution. In fact, no matter what the amendment is, and 
certainly with something this fundamental, we should weigh it 
very carefully.
    Between 1945 and 1963, because of Cold War fears of nuclear 
attacks, there were 30 or more amendments proposed to allow the 
appointment of members of the House in cases of emergency and 
those proposals did not go anywhere.
    Some have said the House could change its rules so that 
emergency appointments could be admitted to a Committee of the 
whole. Frankly, I think that would not address the fundamental 
concern; they would still be unelected. The House has allowed 
delegates from the territories and the District of Columbia to 
vote in the Committee of the whole, but the delegates were 
still people who had been elected by those they represent.
    So the hearing raises some very interesting things. If we 
are going to do this by special election, how would it be 
funded and set up? California, which could have as many as 53 
Representatives to replace, has a statute allowing for the 
replacement of Representatives in the event that a catastrophe 
causes a vacancy in either 25 percent of the seats in the House 
or 25 percent of the seats representing California in the 
House. The statue allows 56 to 63 days for an election after a 
proclamation by the Governor.
    Tom Foley and Newt Gingrich, two former Speakers whom we 
all know and served with, suggested that Representatives 
appoint or designate a successor so that, when Representatives 
run for office, voters would know who the replacements would 
be. But regardless of the proposal, there are some basic 
questions to resolve, for example, how would we determine 
    I am not suggesting an answer, Mr. Chairman. I think it is 
extremely important that you are holding this hearing and I 
compliment you for doing it. Just as we did during the Cold War 
and we talked about the catastrophe of nuclear war, we plan for 
the more surgical catastrophe of an attack on the Capitol 
    Frankly, if I had the proxies of everybody here in the room 
to write a solution other than staying where we are, I am not 
sure what I would do. So I think it is extremely important that 
you are having these hearings and I applaud you for doing that.
    I apologize for the voice; I seem to be having a bit of 
allergy reaction. But it is good to see David, and it is good 
to see you, Brian.
    Thank you.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Senator Leahy, for your comments 
and concerns. I am particularly appreciative of Chairman Hatch 
and you for authorizing us to have this hearing today at the 
full Committee because I do believe it warrants the attention 
of the full Judiciary Committee, and indeed of our full body.
    Representative Dreier. Mr. Chairman, if I could just report 
to Senator Leahy that the fill-in for Senator Hatch has done a 
phenomenal job in the absence of Senator Hatch and the other 
members of the Senate.
    Senator Leahy. You notice how we have done it. John and I 
and Orrin have all tried to make sure that we show a certain 
amount of white-haired leadership. They, of course, show a lot 
more than I do, but they are in the majority and I am in the 
minority, so it is only right.
    Senator Cornyn. Well, gentlemen, thank you very much for 
your time and your thoughtful comments and testimony. They 
serve as an appropriate kick-off for the next panel that is 
going to be here, so thank you for being here.
    At this time, I would like to ask our next panel to come up 
and take their seats. We are fortunate to have with us a number 
of distinguished witnesses and before I recognize them, I would 
like to submit for the record a joint statement from two former 
Members of Congress who serve on the Continuity of Government 
Commission, former Senator Alan Simpson and former 
Representative Lynn Martin.
    Senator Simpson and Representative Martin both wanted to be 
here in person and their testimony supports that which was 
offered by Congressman Baird and the commission report. But we 
are grateful for their written testimony and their 
understandable absence.
    In addition, I would like to submit for the record, without 
objection, the testimony of Congressman Ron Paul, from my home 
State of Texas, who writes in opposition to the commission. As 
Congressman Dreier mentioned, he is a cosponsor of H.R. 2844, 
sponsored by Congressman Sensenbrenner.
    To ensure that we have an opportunity to hear from all 
members of the panel here, gentlemen, I am going to ask you to 
do something that is very difficult, and that is to hold your 
opening statements to 5 minutes. Since there are not going to 
be a lot of people asking questions, I assure you you will be 
able to get the gist of all of your testimony certainly offered 
at some point in response to questions if you can't do it 
during the opening statements. Certainly, your written 
statements will all be submitted as part of the record in this 
    We will also leave the record open until 5:00 p.m. on 
Monday, September 15, for members to submit additional 
documents and also to ask additional questions in writing. So 
you might be looking for that.
    First, we are pleased to be joined by Dr. Norman J. 
Ornstein. Dr. Ornstein is a distinguished scholar and expert on 
Congress and elections, and author of numerous articles and 
books on those subjects. He is a resident scholar at the 
American Enterprise Institute. In the fall of 2002, he helped 
launch the Continuity of Government Commission and serves as 
one of its two senior counselors today and, of course, has 
written extensively on the subject of this hearing.
    Next is Mr. Doug Lewis, Executive Director of The Election 
Center, a non-profit organization dedicated to promoting, 
preserving and improving democracy, headquartered in my home 
State, in the town I was born, Houston, Texas. Its members are 
government employees whose profession it is to serve in voter 
registration and elections administration, the very people who 
would have to conduct these elections. He has testified on 
election reform issues both in the other body as well as the 
United States Senate previously.
    We are also pleased to have Mr. Samuel F. Wright here to 
testify. He is Director of the Military Voting Rights Project 
at the National Defense Committee and is an expert on the 
voting rights of military personnel assigned both within the 
United States and outside of this continent.
    Finally, we are pleased to have with us Mr. Thad Hall, a 
program officer with The Century Foundation. Mr. Hall has 
extensive experience in Federal and State politics, having 
worked for then Georgia Governor Zell Miller and as a policy 
analyst for the Southern Governors Association in Washington, 
D.C. He holds a Ph.D. in political science from the University 
of Georgia.
    With that, gentlemen, we would be pleased to hear first 
from Dr. Ornstein.


    Mr. Ornstein. Thank you very much, Mr. Chairman, and thank 
you for your leadership on this issue. Let me say it has been a 
pleasure working with your terrific staff, and the staff of the 
Committee as well, on these issues.
    Senator Leahy mentioned that, of course, we are approaching 
the second anniversary. I have been working on this issue now 
for 728 days, starting on September 11. I was at Dulles Airport 
and got called off the jetway when the second plane hit the 
World Trade Center, retrieved my car, made my way back home and 
watched with horror through the rest of the day.
    That afternoon, it became clear to me, as it did to Brian 
Baird, that the greatest likelihood was that that fourth plane 
was headed for the Capitol dome, and I began to work through 
the consequences of if it had hit and then realized that the 
Framers had, in fact, left, as they couldn't have done 
otherwise perhaps, a hole in the Constitution, a hole that 
remains a gaping one now almost 2 years after that horrific 
wake-up call.
    I noticed the other day that Britain has begun to plan 
massive evacuations of London in the event of a terrorist 
attack, where they believe Westminster would be a major target 
as well. We know that the threat has not diminished. If 
anything, it is greater for something happening here.
    Unfortunately, we have had other kinds of wake-up calls, 
and the history of Congress is to dawdle over issues of 
succession. You think about the number of times when we had no 
Vice President in place, or times, as with President Wilson, 
when he was comatose for months and really no plan for dealing 
with incapacitation there. Yet, it took us until modern times 
and the 25th Amendment to even begin to deal with those issues.
    Now, as David Dreier mentioned, we did consider these 
questions during the Cold War. The Senate did three times pass 
constitutional amendments to provide for appointments in the 
House in the event of a catastrophe. The House did not take 
them up. Once, it came very close, but at a time when there 
were other constitutional amendments that took greater 
    But I do think that it is instructive to think about the 
difference between the Cold War era and now, and to recognize 
that there are two sharp and critical differences between then 
and now. One is the notice of an attack. Then, we had, of 
course, the Greenbriar set up, that secret bunker 200 miles 
from Washington, based on the assumption that if we had a 
confrontation with the Soviets, we would have notice of between 
30 and 90 minutes once the missiles were launched from Siberia 
to evacuate the Capital. Now, we know the danger is a sudden 
attack occurring with no notice whatsoever.
    The second is the danger of incapacitation, and I want to 
stress this greatly and it is also something that Chairman 
Dreier brought up, but did not address, and noted that we had 
discussed it in the Continuity of Government Commission report.
    There is probably, given the nature of biological and 
chemical weapons available and given the experience we had, the 
frightening experience in the Senate, one that touched Senator 
Leahy directly, with anthrax in the aftermath of September 11, 
perhaps a greater danger of massive incapacitation than even of 
widespread death.
    If that highly weaponized anthrax had gotten into the 
ventilation system in the Senate, we might well have had 60 
Senators or more in intensive care units with inhalation 
anthrax for weeks or months; no Senate, therefore no Congress, 
nobody to confirm appointments, including possibly to confirm a 
new Vice President or to deal with other very significant 
    Any suggestion that we can deal with this problem for the 
House with simply expedited elections ignores the problem of 
incapacitation. And, of course, it is, as you suggested, Mr. 
Chairman, in your opening statement, a problem that the Senate 
has to deal with as well. The 17th Amendment to the 
Constitution does not deal with incapacitation; it deals with 
death. We have had members of the Senate who have been 
incapacitated for years, unable to function.
    But it doesn't matter much, frankly, for the institution as 
a whole when you have 1 Senator out of 96 or 1 out of 100 who 
isn't able to function for a period of time. It would if there 
were more than 50. Any interpretation of the quorum, even the 
questionably expansive one of House parliamentarians since the 
Civil War that says that a quorum is a majority of those 
elected, sworn and living, doesn't take into account what would 
happen if we had more than a majority of members incapacitated 
for a significant period of time. And the idea that you would 
simply force them to resign or expel them from office so that 
you could get a body functioning is not a very attractive one.
    Let me say just a few other comments along the way. Our 
commission, 16 members, co-chaired by Alan Simpson, a former 
member of this Committee and of this body, and Lloyd Cutler, 
former White House Counsel to two Presidents--former Speakers, 
former Cabinet members, many former Members of Congress, 
constitutional scholars, and others--not one of us like 
constitutional amendments. Not one of us started wanting a 
constitutional amendment.
    We went through exhaustively all the alternatives to see 
what could work first and came, I am afraid, inexorably to the 
conclusion, first, for incapacitation, but also in the case of 
widespread deaths, that to leave the country, as Brian Baird 
suggested, for weeks, if not months, without a functioning 
Congress, with what might be, if we are lucky, a benign form of 
marshal law, is simply unacceptable.
    The bill that Chairman Dreier and his colleagues have 
introduced, in effect, has a one-week, a seven-day period for 
elections, two weeks after a massive catastrophe, for parties 
to choose candidates, leaving out, of course, independents, any 
kind of independent candidates, and then one week once you have 
chosen the candidates to print ballots, secure polling places, 
get voting machines ready and certified, hire and train poll 
workers, and do the balloting. You leave out any voter 
registration, you leave out practically any absentee voting, 
you leave out large numbers of people, and it simply can't be 
    California may have the 63-day rule for emergencies. They 
are going well beyond the 60 days for this gubernatorial recall 
election, and it is instructive here. For one statewide 
election, not at a time of emergency, with 2 months from the 
time that the candidates are selected and the ballots can begin 
to be printed, election officials throughout California are 
saying that it is nowhere near enough time and they are afraid 
they are going to have another Florida on their hands. This 
can't be done easily within a matter of weeks.
    Given what we know and what the working group co-chaired by 
Representatives Chris Cox and Martin Frost concluded after some 
exhaustive study, the number of vendors who print ballots is 
limited across the country. It is tough enough to hold special 
elections in the House within the matter of two or 3 months 
when there is one election going on, much less trying to do 
hundreds at the same time across the country.
    We may be able to expedite matters with vote-by-mail or 
Internet voting. I could spend hours going through the perils 
of vote-by mail, which has led in many cases, beyond, of 
course, the fact that it destroys the secret ballot and that 
zone of privacy around the polling place, to corruption, not in 
Oregon perhaps, but in many other places, including wide 
experience in Florida and Georgia, among others. We have had 
conferences on Internet voting showing that, as we have seen 
with these worms, there is no safety or privacy there either. 
There is no solution.
    Unfortunately, you come inexorably, as I believe this 
Committee will through its deliberations, to the conclusion 
that we need something else if we are going to have a 
functioning constitutional form of Government at the worst 
possible time.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Ornstein appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Dr. Ornstein, for those 
    Mr. Lewis, we will hear your opening statement, please.

                     CENTER, HOUSTON, TEXAS

    Mr. Lewis. Senator and distinguished guests, you know, I am 
reminded, too, that 2 years ago on September 11 I was flying up 
here to talk about election reform with Congress at that time, 
and now we are talking about something that is a little harder 
to contemplate, actually.
    The first assumption I think we have to make when we look 
at it as elections administrators is is the disaster contained 
only in Washington. All bets are off if it is not just 
Washington. At that point, we have got to go back and look at 
if it affects States, too. If it is the kind of disaster that 
hits not just D.C., but many of the States, then we are going 
to have to look at a different set of solutions.
    We don't really have a quarrel with the tradition of House 
members being elected rather than being appointed. The problem 
is that that tradition also weighs, and must weigh equally with 
the tradition that we have elections, that the public knows who 
is running, that they understand the issues, that they have the 
choices and know how to make those choices and who is actually 
going to be on the ballot.
    The question, I guess, we have is do we suspend democratic 
processes in order to get democracy. That seems to be a little 
bit of an anomaly in the way we think of things if we can say 
that we can speed this process up so that we can claim that we 
had an election, when, in fact, that may not represent what we 
define as an election in America.
    Certainly, the genius of the American political system is 
that the voters have fundamental faith in the process itself. 
If they do not have faith in that process, that the process was 
somehow rigged in such a way that it accelerated things to 
where there was no reasonable election of candidates, then can 
they believe in the government that results from it? We think 
probably not.
    Certainly, in order to have a general election, you have to 
have some way to have the primary nomination of the candidates. 
The device that has been proposed is 14 days and let the 
parties sit down and nominate those, and then discard all those 
other people who might have wanted to run or might have been 
able to run, or should have maybe been the persons to run. It 
certainly eliminates all the independents; it eliminates all 
the minor parties because you are not going to have enough 
process time in order to determine who those candidates are. 
That is a part of the American democratic process.
    Certainly, the threshold that Congress needs to look at--is 
that 25 members, 50 members, 100 members, a quorum? What does 
it constitute before this National election and national 
emergency kicks in?
    The lessons that we learned in New York City alone from 9/
11 when an election was scheduled on that day in order for us 
to continue with an election in a disaster--we need to then 
assess what is available to us. How do we go back and rebuild 
the process and do the process so that folks can actually come 
to the polls? Certainly, those lessons ought not to be wasted 
on us.
    Presumably, Congress is going to say that a national 
emergency needs to take precedence and that national interests 
are superior to State interests in this regard. But if that is 
the case, then Federal law is going to have to definitely 
suspend a whole lot of laws on State books in order to conduct 
an emergency election.
    Concurrently, if you are going to suspend all those laws 
and all those processes, you are also going to have to train 
poll workers to a whole new set of rules and regulations so 
that they don't disenfranchise voters when they show up.
    It appears from the surveys that we have done now with 
elections administrators around the country that most feel like 
we can conduct an election in as few as 45 days. But we would 
prefer to have more than that. We would prefer to get to the 
point that we have--any extra day beyond that helps us run an 
election that has more credibility and more ability for folks 
to participate.
    One of the House bills says that if such an emergency 
occurs within 51 days of a regular election, then you go ahead 
with a regular election. Well, if 51 days is the basis, then 51 
days probably ought to be the basis, instead of saying that we 
want to do it in 21.
    Now, the question is can we do an election in 21 days. 
Elections administrators are pretty good folks. They can do 
pretty much the impossible, but the point is is that truly an 
election that represents America?
    If you look at the things that we have to have--candidate 
filing, new voter registration considerations, preparation for 
absentee ballots and what are you going to do about all those 
who are military and overseas--are you going to suspend their 
rights? Are you going to suspend the rights of the disabled in 
the election because you don't have enough time to mail the 
ballots and get them back, and the transit time there?
    If we had more time on the front end, we probably wouldn't 
have to count the ballots after election. Maybe one of the 
things that Congress needs to do in order to assure enough poll 
workers in a situation like this is to suspend all the labor 
laws that would keep us from using and pressing into service 
all of the other government employees at city and county levels 
so that we could do this.
    Certainly, we would want to look at the ability to say can 
we do it? Yes, we can do it. We could hold an election in 21 
days, but it would not be what America has grown to know and 
understand as an election and it would suspend the rights of 
many, many folks in the process.
    Lastly, let me wrap up with saying Congress has to 
understand that on election day you haven't got the final 
totals. We are going to have to go through a canvassing period 
where we process those absentee ballots on the back end, unless 
those have been suspended. We are also going to have to 
understand and do the counts and qualify provisional ballots, 
or do we suspend those, also?
    That back-end process is where it takes us a lot of time. 
In California, it takes them 28 days to get through all the 
ballots that come in on provisional voting. That is not 28 days 
where they can just compress that by magically waving a wand 
and saying they don't need all that time. It takes that much 
time to get it done. So these are things that Congress needs to 
look at when it decides on this issue.
    Thank you, sir.
    [The prepared statement of Mr. Lewis appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much, Mr. Lewis.
    Mr. Wright, I know you are prepared to talk about military 
voting rights. Certainly, for me, that is one of the biggest 
concerns I have about what impact expedited elections would 
have on the rights of those people who are representing this 
Nation on battle fields across the planet. We would be glad to 
hear your opening statement.


    Mr. Wright. Well, thank you. I would just like to bring to 
your attention--I am sure you aware of it--the Uniformed and 
Overseas Citizens Absentee Voting Act of 1986. It is in Section 
1973ff of Title 42. It explicitly applies to special elections, 
as well as primary, general, and runoff elections for Federal 
    Representative Dreier mentioned a California law providing 
for an expedited 63-day rule if there are more than a certain 
number of vacancies in the U.S. House of Representatives either 
overall or among the California delegation specifically. I 
think that law, frankly, is inconsistent with the Uniformed and 
Overseas Citizens Absentee Voting Act. Of course, 
Representative Dreier--in his bill, he could and I think he 
would have to provide for the suspension of UOCAVA, the 
Uniformed and Overseas Citizens Absentee Voting Act.
    Military voting and overseas voting is difficult enough in 
biennial general elections. I presented in my written testimony 
a response to a questionnaire that I received from Hon. Matt 
Blunt, Secretary of State of Missouri. I asked each of the 51 
chief State election officials to complete a questionnaire that 
I sent out in May of 2002. Secretary Blunt is the only one that 
did. I did get some responses from counties in Florida, but the 
Secretary of State there left it up to the counties and 14 of 
the 67 counties responded.
    Secretary Blunt actually distributed my questionnaire--this 
was for the 2002 general election--to the 116 local election 
officials in Missouri and he obtained responses from 105 of 
them. The City of St. Louis was one of the hold-outs, 
    Among those 105 counties in Missouri, in the 2002 general 
election, for military and overseas voters, defined as people 
who used the Federal postcard application to apply for their 
ballots, the disenfranchisement rate was 41 percent. In other 
words, if you add up the applications that were rejected 
because they came in late or because they were somehow 
procedurally insufficient, and then you add to that the 
absentee ballots that came back late, the absentee ballots that 
came back on time but were rejected for procedural 
deficiencies, and another 350 absentee ballots from Federal 
postcard application voters, 350 ballots that never came back 
at all even as of mid-2003, then you come up to 41 percent of 
the applicants that did not, in fact, cast ballots that were 
counted in the 2002 general election.
    In a special election, it is even more difficult, and I 
think there is no way in 21 days, or even 21 weeks, you could 
have an election in which people overseas could have a 
realistic opportunity to vote.
    I recognize the importance of an elected House of 
Representatives, but I favor your approach or what is being 
considered here of having interim appointments, to be followed 
by special elections as soon as reasonably practicable.
    [The prepared statement of Mr. Wright appears as a 
submission for the record.]
    Senator Cornyn. Thank you, sir.
    Mr. Hall, we would be pleased to hear from you.

                  FOUNDATION, WASHINGTON, D.C.

    Mr. Hall. Thank you, Mr. Chairman. At this hearing, I want 
to focus my comments specifically on the issues associated with 
holding special elections on a short time frame, and here I 
think there are three key points that I want to make.
    First, at present, State laws are not well designed to hold 
special elections on a very short time frame. Second, Congress 
does have the power to regulate elections in a way where 
special elections could be conducted in a relatively quick and 
efficient manner. And, third, there are technological changes 
in the election field that will likely make special elections 
easier to hold in the future, especially for the UOCAVA 
    Regardless of whether or not one supports the 
constitutional amendment or not, it seems very likely that we 
will be holding special elections for House members in the case 
of a disaster for some time, given the debate over whether or 
not there should be an amendment. So the fundamental question 
is how can Congress make the special election process work 
    Answering this, I think, requires rethinking the way 
elections are currently conducted in the States because State 
laws that govern elections are not designed for speed; they are 
designed for other reasons. The California example that Dr. 
Ornstein mentioned earlier is an interesting case in point. The 
California recall provides us some lessons of how State laws 
can impact the speed and ability of election officials to 
quickly hold a special election.
    I was fortunate when I worked for the National Commission 
on Federal Election Reform to spend a week in Los Angeles to 
watch them run their mayoral election, and it is quite an 
experience to see a jurisdiction of that size run an election.
    To give you an example of how large Los Angeles County is, 
they have 5,000 precincts if they run a full election and don't 
consolidate their precincts. If they do consolidate, they have 
about 2,000 precincts. They have 25,000 poll workers. To put 
that in context, there are about 5,000 Starbucks in America. 
There are not 2,000 Wal-Marts worldwide, and the poll workers 
outnumber the LAPD 3 to 1 on election day. So it gives you a 
sense of what is involved in putting together an election.
    In L.A., they also have 135 candidates, which is creating a 
huge problem. There is a very low threshold for getting on the 
ballot. There are numerous lawsuits going on out there, and so 
it does have kind of circus atmosphere, in part because the 
people who run the elections out there have very little 
discretion on how they run the election. They have to run it at 
poll sites on election day.
    They could, however, use a different model if they were 
freed up to do so. For instance, if you look to the north of 
California, in Oregon they run their elections using vote-by-
mail, and they have done so since the people of Oregon passed a 
State constitutional amendment in 1996 to allow them to do 
    In Oregon, all registered voters are automatically sent a 
ballot between 14 and 18 days before an election. They then 
complete the ballot. They have to turn the ballot in either by 
sending it in by mail or dropping it off and it has to be 
received by election day. Then the votes can be counted at that 
    The benefit of this system in a crisis situation might be 
that you would not have to gear up poll sites, find poll 
workers, and do these things. You would be able to immediately 
enfranchise all the registered voters by sending them a ballot.
    The effectiveness of vote-by-mail has been recently 
recognized internationally. The United Kingdom has an electoral 
commission that is similar to the soon to be created Election 
Administration Commission. They have been conducting 
experiments in local elections using vote-by-mail over the past 
several election cycles and they have recently recommended that 
all local elections in the United Kingdom be held using vote-
    However, using this system would not be without its 
drawbacks. One of the issues would be that people who have 
disabilities might not be able to vote using vote-by-mail. But 
localities can often operate poll sites using early voting, 
which you, I am sure, are familiar with, as it is used so much 
in Texas, where you can put up touch-screen voting systems that 
people can use.
    In fact, Los Angeles County, which traditionally has used 
punch cards, has been using an early voting DRE system since 
2000 in their disabled community and their language-minority 
community. They have to serve seven different languages in Los 
Angeles County under the Voting Rights Act and have found this 
to be very beneficial.
    I think that Congress could do a couple of things to make 
the process work better. First, they could require States to 
develop a legally-binding mechanism for how they would hold 
special elections in the case of a disaster. States would 
basically determine what laws would be in place and what 
procedures they would have to do to make an election work in 
that situation. Second, Congress can obviously pass a law to 
accomplish the same goal.
    I also think it is very important that in a disaster 
situation, if we are going to do these elections in the short 
term, Congress and the Federal Government should be willing to 
pay for some of the costs associated with these elections.
    Some of the problems associated with these elections could 
be overcome if Congress did this. For example, with the issues 
of ballots and things like that, Congress could go ahead, or 
the Federal Government could put in place contracts with people 
so we had ballot paper in place, we had printers in place, we 
had all the things you would need to make an election go off 
    Finally, I would just like to point out that technological 
changes are likely to make enfranchising the UOCAVA population 
in the future much easier. In 2004, the Federal voting 
assistance program will be pilot-testing an Internet voting 
system that will be used in several States, and that will 
provide an opportunity for these people to vote using a 
quicker, much more efficient and effective technology, and to 
register using that technology. I am actually part of the 
evaluation team that is evaluating that process.
    [The prepared statement of Mr. Hall appears as a submission 
for the record.]
    Senator Cornyn. Thank you very much, Mr. Hall.
    At this time, I want to offer, without objection, into the 
record the written statements of Doug Chapin, who is Director 
of Electionline.org; Curtis Gans, Director of the Committee for 
the Study of the American Electorate; and Phyllis Schlafly, 
President of the Eagle Forum and Chairman of the Coalition to 
Preserve an Elected Congress, who writes in opposition to the 
commission report. Mr. Chapin and Mr. Gans express concerns 
with an expedited election process.
    I want to make just a brief statement in appreciation to 
Dr. Ornstein, and really to the commission that was a joint 
project of the American Enterprise Institute and the Brookings 
Institution--the Continuity of Government Commission for the 
outstanding work that was done on this subject. I think, to me, 
that stands out as a great example of the kind of scholarship 
and expertise that can be offered to Government to help us make 
better decisions, and I appreciate that very much.
    Starting maybe with Dr. Ornstein, let me just ask you about 
Congress' traditional reluctance to pass constitutional 
amendments. I was reminded that in one extreme instance, a 
constitutional amendment was submitted to the States in 1789, 
but took 203 years to ratify.
    If we are talking about trying to get amendments to the 
Constitution ratified so we can deal with what I think we can 
all agree is, if not urgent, a compelling need for Congress to 
act, can you tell me sort of what your thoughts are about how 
we can get it done more quickly and in a way that would address 
the concerns that you talked about?
    Mr. Ornstein. Certainly, Mr. Chairman. Thank you for your 
kind comments, and let me acknowledge my fellow senior 
counselor, Tom Mann, and the director of our commission, John 
Fortier, who are there in the audience, along with Kim Spears, 
who has worked on this issue with us.
    Chairman Dreier, of course, misspoke when he said that it 
takes an average of 7 years for constitutional amendments to be 
ratified. The modern practice has been to put a 7-year limit 
once the amendments go through Congress and then go to the 
States. What we had recommended was a much shorter limit for 
the States.
    But in this case, the critical issue is getting an 
amendment through the Congress while there is a Congress. Once 
an amendment goes to the States, I am not very worried, 
frankly, about ratification time because once you have got an 
amendment through the Congress, assuming, by the way, that we 
have implementing legislation, as well, in the form of a short 
amendment that is parallel, let me note, to the constitutional 
provision for presidential succession--presidential succession 
in the Constitution basically creates a presidency and a vice-
presidency, but then delegates to Congress the responsibility 
through implementing legislation to select others, the subject 
of the joint hearing, of course, that you will be holding with 
the Rules Committee in the Senate next week.
    If you did it in that fashion, basically just giving it to 
Congress, you would need some kind of implementing legislation. 
But once you are through the body, then States, as 
Representative Baird said, beyond any question, if we had a 
catastrophe, would act swiftly. The difficulty comes if we 
don't have a plan in place and then an attack occurs.
    Now, unfortunately, the history of the country in these 
areas is that we wait until we go from theoretical to real, and 
in some instances, as we had with President Wilson, from real 
to something even more real. It takes something that really 
shakes the country up, like the assassination of President 
Kennedy, to overcome the natural inertia in the process, 
normally a very commendable thing because constitutional 
amendments shouldn't be done lightly, to get something done.
    When I am asked about this issue, people say, well, are 
they going to act and will they get this amendment done? And my 
answer is yes. The question is does it come before or after we 
have to pick up the pieces from an attack. So ratification time 
in this case, I think, is not the critical question. It is 
getting the Congress moving so that if something happens, we 
then can see the States respond quickly.
    I also believe, by the way, that most constitutional 
amendments, once they get through Congress, unless they are 
highly controversial issues like the equal rights amendment for 
women, once Congress has managed to muster the super-majorities 
in both Houses to make something happen, the States recognize 
the reason for doing so and move much more quickly.
    Senator Cornyn. I know no one likes to think about this, 
but would you just speak briefly to what the possible scenarios 
might be, the parade of horribles, I guess, in the event 
Congress fails to act on this proposed constitutional amendment 
if, in fact, a majority of the Senate is incapacitated or a 
majority of the House is incapacitated or killed and either 
body is unable to establish a quorum? Can you give us an idea 
of some of the scenarios that you think are possible?
    Mr. Ornstein. Sure. You can unfortunately find a number of 
worst-case scenarios that used to be the stuff of Tom Clancy 
novels, literally, but now they are tangible possibilities.
    Probably the worst case is something happening at an 
inaugural. At an inaugural, we have the crisis of succession 
with all three branches. You have got, of course, the incoming 
President and Vice President, the outgoing President and Vice 
President involved; the outgoing and incoming Cabinet. The 
outgoing Cabinet is supposed to submit letters of resignation 
as of noon on January 20. Presumably, most of them have, 
perhaps not all.
    Even though confirmation hearings have been held in many 
instances--in recent times, we have done this to try and get a 
Government up and running--before the 20th, you still have to 
have the Senate only after noon on January 20 confirm new 
Cabinet members.
    You have the Supreme Court there, the Congressional 
leadership, and most of the Members of Congress. And if you did 
have something like a suitcase nuclear bomb, you could end up 
with questions about whether there was anybody in charge and 
maybe people popping up saying, well, I will be the President. 
And you might then have literally a handful of members of the 
House who happen to survive announcing that they would 
constitute a quorum, choose a Speaker, who would then become 
under the Presidential Succession Act President for the next 4 
years. This is not fanciful, I am afraid. It is real.
    Beyond that, of course, even with expedited special 
elections, even if we did move within a brief period of time--
and again remember that the proposal on the table, which is 14 
days to choose candidates, then 7 days to hold an election--you 
are still going to need at least a week or 10 days or much more 
time, as Mr. Lewis has reminded us, afterwards to go through 
the ballots and then certify the candidates.
    Think about what was done in the three of four weeks in the 
immediate aftermath of September 11, all the things that were 
done. Even at minimum, we are going to have that problem. Then, 
of course, you have those problems of incapacitation where you 
would be paralyzed with simply no Congress that could act under 
any circumstances, given the definition of a quorum.
    What we are talking about now is the possibility of 
quarantine because of smallpox, an anthrax or sarin gas attack, 
another kind of biological attack. We have known in the past 
that what we thought was the worst case in the Cold War and 
post-Cold War era was the State of the Union. And, of course, 
we have followed the practice over the last couple of decades 
of having a member of the Cabinet absented from that State of 
the Union because this was the one occasion when all the 
members in the Cabinet and the President and Vice President 
were gathered together in that one building.
    But when you consider the range of weapons of mass 
destruction available now over the Internet or in a fairly easy 
fashion, the accessibility of them to Al Qaeda and to others, 
including with cooperation by governments, and that the pace of 
technology there is only going to increase and the availability 
of these destructive things increase, we are no longer simply 
confined to a question of what happens in one building. It can 
be a question of what happens across the entire city.
    A suitcase nuclear bomb available now with fairly ready 
technology literally the size of a suitcase can wipe out a 6- 
to 8-square-block area, basically much of official Washington, 
if it were in the appropriate place. And we know that some of 
these biological attacks can move very swiftly through the 
    So the bottom line, Mr. Chairman, is that when you take any 
of those scenarios and then you begin to work through what it 
could mean, with the House having a Speaker who is third in the 
line of succession, with the Senate having the important role, 
among other things, of confirming Vice Presidents and members 
of the Court and other such officials, with both bodies being 
needed for lawmaking, the easy ability now, unfortunately, in 
the age of terrorism to block those actions from taking place 
for weeks or months cries out for a response.
    Senator Cornyn. Mr. Lewis, I know from observation that 
when Congress or perhaps the State legislature mandates certain 
election law changes, there is a very real impact on the people 
who actually have to administer those elections. We have heard 
some suggestions even here today about the use of technology, 
Internet voting, vote-by-mail, things like that that would 
perhaps expedite special elections.
    Could you speak for a moment on what sort of impact that 
would have on those who actually administer the elections in 
terms of being able to successfully accomplish those elections?
    Mr. Lewis. Well, the truth of the matter is even if you 
look at ordering ballot stock, ballot stock is not a piece of 
paper. It is a stock that we use to run through equipment. If 
we are going to order up enough to have what essentially 
becomes a national election, you are going to have to order 
that by train car load, you know, and it doesn't come quickly. 
We don't keep it in stock, we don't keep it on hand.
    And then as Norman has correctly pointed out, you have only 
got a handful of ballot printers in America. And ballot 
printing is not one of those things where you just take it down 
to any printer or down to a Qwik Copy and have them run you a 
copy of it. If it is going to be counted by machines, it is 
going to have to meet timing marks.
    Or if we are going to use electronic equipment, you have 
got to have that programmed. The electronic equipment at least 
helps us eliminate all the possibilities of having to wait 
around on card stock and ballot stock, but then you are down to 
how programs all of that. There are a limited number of 
technical people available to us to help us get that set up in 
a hurry.
    So when you look at it, 7 days, as proposed--I guess I am 
one of those loopy folks that thinks it is going to take a 
little longer. The truth of the matter is if you work with this 
enough, you find out that this does not happen overnight. We 
have done it so well for so long that everyone takes it for 
granted without understanding what goes into it. So it does 
take time to establish all of this.
    If we ever find out a way to make the Internet a viable 
delivery service of votes with safety and security, we might be 
able to make that work. But the truth of the matter is we know 
it is not yet and so we haven't been able to figure that out, 
at least for general public use.
    As we saw with what happened with the Northeast, if somehow 
terrorists were able to knock out the Nation's electricity, a 
whole lot of what we are planning and thinking of doesn't work 
anyway. At that point, we are all in deep trouble.
    So there is no easy answer here, and certainly trying to 
force an election that basically is going to be held in 7 days 
from the date that you know the candidates does not seem to 
make sense. At that point, we have got to look at other 
options, and what those other options are I don't know. That is 
up to you all as Congress people to decide. But, certainly, if 
we are going to do an election, the election ought to have some 
integrity to it in terms of the way that the voters see it and 
perceive it as an election.
    Senator Cornyn. Mr. Wright, if we are going to head in the 
way of a statutory solution, as proposed by some, including 
Congressmen Dreier, what do you see as sort of the minimum 
requirements necessary to preserve the rights of our military 
    Mr. Wright. I don't think it can be done. I think they 
would have to suspend UOCAVA, the Uniformed and Overseas 
Citizens Absentee Voting Act, either suspend it explicitly, or 
more likely, as sometimes happens in special elections anyway, 
just sort of ignore it.
    Senator Cornyn. Well, obviously, that is not a desirable 
result under any set of circumstances.
    Mr. Wright. Right.
    Senator Cornyn. But your testimony is that you really don't 
see preservation of military voting rights and special 
elections as compatible?
    Mr. Wright. Certainly not a snap special election. I think 
you need 6 months.
    Senator Cornyn. Well, I know in Texas we have four 
statutory election dates that offer some sense of 
predictability, some opportunity for preparation if there is a 
vacancy and a special election ordered by the Governor. But, of 
course, we are not talking about that. We are talking about 
something that would start from zero and have to gear up very 
    Mr. Wright. But even with that, the service member or 
anyone overseas or anyone that needs to vote by absentee ballot 
for whatever reason cannot even apply for an absentee ballot 
until he or she knows there is going to be an election.
    Now, we know there is going to be a presidential election a 
year from this November. So if you wait too long to apply for 
your ballot, the ``own dumb fault rule'' comes into play. My 
concern is about those people who apply early but still don't 
get their ballots on time. But in a special election, there is 
no way to apply early because you don't know your Congressman 
is going to die.
    Senator Cornyn. Mr. Lewis, would you like to comment on 
    Mr. Lewis. Yes. Some of that has been helped by the Help 
America Vote Act in the sense that they will then become 
registered for the year, and so already we will know that they 
are military and overseas. We can get to some of that; we can 
answer some of that.
    If we have a minimum of 45 days, with then a period 
afterwards in which we can still receive those ballots, we can 
indeed probably, with all the transit time necessary, get the 
ballots out and get them back. But it is going to be humping 
it, and it won't get it for all of them.
    Mr. Wright. The usual remedy for a UOCAVA violation is a 
court order extending the deadline for the receipt of mailed-in 
ballot from outside the United States. It was a 1982 court 
order in Florida that is still in effect that provided for the 
ballots to be counted up to ten days after the election in 
Florida for Federal offices, President, Senate, and House.
    But that would go against the whole idea of what we are 
talking about here. You know, the whole idea is not only do we 
need to have the election, but we need to figure out who is the 
winner and send that person here to Washington to enable the 
House of Representatives to have a quorum and to enact the 
Nation's business.
    Senator Cornyn. I guess we also have to be concerned about 
the electorate knowing who the candidates are before they 
actually cast a vote and the challenges associated with getting 
that information to those voters. Perhaps there ought to be 
some provision made for at least disseminating to those voters 
information about the duly qualified candidates as part of that 
    Dr. Ornstein?
    Mr. Ornstein. Just one point. If you take what Mr. Lewis 
has said, 45 days being something where there is a consensus of 
election officials that if they were absolutely pushed maybe 
they could do it, although even with that we need caveats, then 
consider that it will take ten days or so after that to go 
through and certify ballots at an absolute minimum, then you 
are talking about having under the worst case an entirely new 
body come to Washington, probably including a vast majority of 
people with little experience in politics or government, very 
few former members, for example, and you need some time to 
organize the body.
    Even now, when the House comes back with usually 90 percent 
of its members continuing, they take several days to enact 
rules, to organize, to select people for committees. Assume 
under the best of circumstances two or three weeks before you 
could actually be up and functioning, with most people not even 
knowing parliamentary procedures.
    So even with that, we are talking 3 months or more before 
you could actually have a fully functioning Congress to begin 
to do things like declare war or authorize the use of military 
force or make appropriations. So under the best of 
circumstances, if we rely on elections, we are still talking 
about a gaping hole in terms of the amount of time where you 
are operating under marshal law.
    Senator Cornyn. Mr. Hall, would you like to comment on some 
of the other testimony by some of your co-panelists?
    Mr. Hall. I think the one thing I would like to point out 
is I think that Mr. Lewis is absolutely correct that you do 
have to take into account that there is a minimum period that 
you have to have to just prepare everything and then to count 
the votes at the end. It may not be 45 days. You may be able to 
shrink that somewhat, but the more you shrink into it, the more 
you impact the UOCAVA population.
    I think in some States, 30 days is generally the minimum 
that they allow. You have to send out UOCAVA ballots by that 
point, and so if you do cut into that time, if there is not 
another procedure for these people to vote using the Internet 
or some other mechanism, you start to impact their ability to 
participate in the process.
    Senator Cornyn. Well, of course, we also know there are 
other requirements that don't cover all States, but do cover 
some States with regard to, for example, the Voting Rights Act 
and pre-clearance requirements to any changes made that would 
have the potential of diluting or disenfranchising minority 
voters which present additional challenges.
    Mr. Lewis?
    Mr. Lewis. One of the things that Congress may want to 
think about is looking at some methodology that would send 
experienced legislators up here and some way of finding a way 
to include those State legislators to get them up here so that 
they hit the ground running rather than people, as Dr. Ornstein 
correctly points out, who don't understand the legislative 
process, who don't understand rules and procedure or how a bill 
gets passed or any of that other stuff. So it may be that in 
your thinking you may want to look at how do you get 
experienced hands up here who can hit the ground running.
    Mr. Wright. Something that occurred to me in listening to 
the other testimony about the incapacitation issue is maybe if 
Senators and Representatives would execute a power of attorney 
to someone outside the D.C. metropolitan area. Maybe your 
campaign Chairman or some trusted person would have the power 
of attorney to resign if you are in a hospital and comatose.
    We have had circumstances where there were vacancies in the 
House for extended periods of time because someone has had a 
heart attack and doesn't have the capacity to sign a 
resignation letter. So it would serve that purpose as well. But 
certainly for the emergency circumstance we are talking about, 
or if someone is missing--you know, we are digging up the 
rubble of the Capitol and maybe someone is still alive under 
that rubble, but more likely they are not, but to resign so 
whatever the process is can get started.
    Mr. Ornstein. Let me say that the difficulty with that is 
you would end up perhaps having a tragedy, taking people who 
might be missing and then found again, or who might be 
incapacitated for three or four or 6 months, and basically 
removing them from office forever or for a very long period of 
time, something which is not desirable.
    You can deal with incapacitation, I think, in a very 
reasonable fashion through this amendment process, where 
basically when it is clear that people are incapacitated--and 
it can be done through some power of attorney fashion or by 
other officials--there are appointments to replace them until 
those individuals themselves simply declare that they are ready 
to resume service. Then nobody is unfortunately destroyed 
inadvertently or the entire election process destroyed by this.
    Senator Cornyn. Well, gentlemen, let me say how grateful I 
am to each of you, and I know I speak on behalf of the Chairman 
of the Committee and the Ranking Members and all members, that 
we appreciate your testimony.
    This is the beginning of our deliberations in this body on 
this subject, not the end, and I hope that this hearing will 
generate a lot of interest in the legislative branch to deal 
with this subject in a responsible and comprehensive way.
    This is, as I believe, Dr. Ornstein, you said, no longer 
the stuff of a Tom Clancy novel. This is very real, and I 
believe that 2 years is too long for us to actually be holding 
these hearings, but here we are now. And so now we can control 
maybe not our past, but our future in terms of the way we 
constructively deal with us and each of you has made a great 
contribution to that effort.
    Before we adjourn, I would like to again thank Chairman 
Hatch and Senator Leahy. I will again say that we will leave 
the record open until 5:00 p.m. next Monday, September 15, for 
members to submit additional documentation for the record, and 
also to submit any additional questions of the witnesses. So 
you might look for those.
    With that, this hearing of the Senate Judiciary Committee 
is adjourned. Thank you.
    [Whereupon, at 12:00 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record