[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
                          MARKUP OF CONTINUITY
                       OF GOVERNMENT LEGISLATION

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

                            BUSINESS MEETING

                               before the

                   COMMITTEE ON HOUSE ADMINISTRATION
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 17, 2005

                               __________

      Printed for the use of the Committee on House Administration












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                   COMMITTEE ON HOUSE ADMINISTRATION

                        BOB NEY, Ohio, Chairman
VERNON J. EHLERS, Michigan           JUANITA MILLENDER-McDONALD, 
JOHN L. MICA, Florida                    California
JOHN T. DOOLITTLE, California          Ranking Minority Member
THOMAS M. REYNOLDS, New York         TOM BRADY, Pennsylvania
CANDICE S. MILLER, Michigan          ZOE LOFGREN, California

                           Professional Staff

                     Paul Vinovich, Staff Director
                George Shevlin, Minority Staff Director















             MARKUP OF CONTINUITY OF GOVERNMENT LEGISLATION

                              ----------                              


                      THURSDAY, FEBRUARY 17, 2005

                          House of Representatives,
                         Committee on House Administration,
                                                    Washington, DC.
    The committee met, pursuant to call, at 2:05 p.m., in Room 
1310, Longworth House Office Building, Hon. Robert W. Ney 
[chairman of the committee] presiding.
    Present: Representatives Ney, Ehlers, Doolittle, Reynolds, 
Miller of Michigan, and Millender-McDonald.
    Staff present: Paul Vinovich, Staff Director; Fred Hay, 
Counsel; Matt Petersen, Counsel; Jeff Janas, Professional Staff 
Member; George Shevlin, Minority Staff Director; Charles 
Howell, Minority Chief Counsel; Matt Pinkus, Minority 
Professional Staff; and Tom Hicks, Minority Professional Staff.
    The Chairman. Committee is now in order for the purpose of 
consideration of H.R. 841, the Continuity and Representation 
Act of 2005. Last year, the full House of Representatives 
passed important legislation that would ensure that a 
functioning House would be in place with the ability to operate 
with legitimacy if, heaven forbid, a catastrophic terrorist 
attack would ever to take place that killed dozens of Members 
of this body.
    By overwhelming vote of 306 to 97, the House voted to enact 
the Continuity and Representation Act of 2004, which 
established a framework for conducting expedited special 
elections to fill House vacancies resulting from extraordinary 
circumstances. I want to stress extraordinary circumstances. 
Unfortunately, this important piece of legislation was never 
taken up by the Senate during the last Congress, thus 
necessitating that we once again consider new continuity 
legislation in this Congress. There is an urgent need to pass a 
bill that preserves the continuity of Congress in the event of 
a catastrophic attack, and the reasons I think are obvious. The 
horrifying events of September 11, 2001, a day on which 
terrorist enemies of the United States murdered over 3,000 
innocent American citizens in cold blood while striking symbols 
of our country's economic and military might, painfully reminds 
us of the evil intent of the terrorists and their increasingly 
sophisticated and deadly attacks.
    That day forced each of us to consider the alarming 
possibility of a terrorist attack aimed at the heart of our 
Nation's government here in Washington, D.C. Potentially 
carried out with nuclear, chemical or biological weapons of 
mass destruction that could decimate large portions of the 
Federal Government and kill or maim hundreds of Members of 
Congress. If such an attack were ever to occur, the presence of 
strong national leadership would be more important than ever 
before. The American people would be desperately seeking the 
reassurance that their government remained intact and retained 
the capability of acting vigorously in the Nation's defense.
    Therefore, it would be essential that a functioning 
Congress be in place with the ability to operate with 
legitimacy as soon as possible. This is not a comfortable 
scenario for any one of us to confront, for it compels us to 
contemplate the possibility of our own demise in a catastrophic 
attack. Nevertheless, as elected representatives of the people 
of the United States, we have a duty to ensure that the 
peoples' House continues to function effectively and 
legitimately during times of national emergency. As we consider 
how best to ensure the continuity of the House of 
Representatives in the event of a devastating terrorist attack, 
it is vital that we reflect on fundamental roles that the House 
plays in our constitutional structure.
    When drafting the Federal Constitution, our Founding 
Fathers designed the House to be the branch of government 
closest to the people. They believed the only way this 
objective could be accomplished was through frequent elections. 
Consequently, the Constitution, in Article 1, section 2 clause 
4, provides that vacancies in the House may be filled only 
through special elections. As a result, no Member has ever 
served in this House who was not first elected by the people he 
or she represents.
    Today I will be offering an amendment in the nature of a 
substitute to H.R. 841. This amendment presents a balanced 
solution to the complex and difficult issues we are 
considering. It will ensure the continued operation of the 
House during times of national crisis, while at the same time, 
preserving the character of the House as an elected body. The 
amendment is similar in structure and details to H.R. 841, 
which is virtually identical to the bill passed last year by 
the House. However, a number of modifications have been made to 
accommodate issues that have been raised by the minority, and 
our ranking member is here today, as well as concerns related 
to us by the States. The amendment requires expedited special 
elections be held within 45 days of the Speaker of the House 
announcing that more than 100 House vacancies exist.
    The candidates running the special elections will be 
selected either by the State political parties, which would 
have up to 10 days after the Speaker's announcement to nominate 
the candidate or by other methods the State deems appropriate, 
including holding primary elections providing the State is 
otherwise able to meet the 45-day deadline for conducting the 
special election.
    Thus, under the amendment, the States are given greater 
flexibility regarding the process by which candidates can be 
selected for expedited special elections. Also under the 
amendment, a State will not have to hold an expedited special 
election if a regularly scheduled general election or 
previously scheduled special election were to be held within 75 
days of the Speaker's announcement, thus providing in essence, 
a 30-day extension for the States.
    The amendment maintains H.R. 841 provision that protects 
the ability of military personnel and overseas citizens to 
fully participate in the special election by instructing that 
absentee ballots be transmitted to such voters within 15 days 
of the Speaker's announcement requiring that such absentee 
ballots be counted if received not later than 45 days after the 
State transmits them. The amendment makes clear that the 
expedited special election procedures set forth in this bill 
are equally applicable to the representatives of the District 
of Columbia and the U.S. territories. Moreover, the amendment 
includes language reiterating that the Nation's voting and 
election laws will remain in effect for the expedited special 
elections.
    Finally, the amendment provides for judicial review of any 
legal challenge to the Speaker's announcement. We are under no 
illusion that holding expedited special elections would be 
challenge-free for the States. Even under the best of 
circumstances, administering elections prevents many logistical 
hurdles. Nevertheless, a number of States already require House 
vacancies to be filled within 45 days or less. Doug Lewis, 
executive director of the Election Center, testified before 
this committee last year stating that it appears the election 
administrators from combined responses nationwide feel that 
they can conduct an election within as few as 45 days. Thus, 
the majority opinion of the Nation's chief election officials 
appears to be that 45 days would prove to be sufficient time to 
plan and prepare for an expedited special election. Therefore, 
I believe, the amendment I'm introducing to the Continuity in 
Representation Act for 2005 strikes the proper balance between 
the demand to fill House vacancies through the special 
elections in as short a time frame as possible, and the need 
for election officials and the voting public to have the time 
necessary to get ready for the election to make informed 
choices of who they are going to vote for.
    Consequently, I wholeheartedly support the amendment and 
invite my colleagues to join in passing this important measure 
out of the committee and sending it to the House floor. At this 
time, I would like to recognize the ranking member, Ms. 
Millender-McDonald, and any other members.
    Ms. Millender-McDonald. Thank you so much, Mr. Chairman. 
Mr. Chairman, I am pleased to have the opportunity to address 
this issue that is outlined in H.R. 841, the Continuity of 
Representation Act of 2005 and to discuss a significant 
amendment I intend to propose. I am not sure that the bill as 
currently designed in its current form can be improved enough 
to make it workable, but I am grateful to the chairman for 
scheduling this markup and for his willingness to accept some 
useful ideas from the minority to improve legislative language 
in part of the bill. We did accept the chairman's invitation to 
look at the bill for what it is and to at least attempt to 
perfect it. But H.R. 841, Mr. Chairman, as introduced and with 
the forthcoming adoption of the manager's amendment in the 
committee today, differs only slightly from H.R. 2844 as passed 
last year by the House. I voted against that bill in the 
committee markup last year and I will likely do so again here 
today.
    The core problem remains. The bill's rigid deadlines are 
tailor-made to foster confusion and litigation at a time of 
future national crisis when the American people will need to 
renew the legitimacy of the elected representatives in the 
House. It imposes a new unfunded mandate upon the States. In 
its zeal to expedite process, H.R. 841 compromises democracy. I 
say that after looking at the process in the last Congress. We 
have the benefit of hindsight and we should use that to refine 
our actions this year. It was apparent in the 108th Congress 
that the sponsors of H.R. 2844, which is virtually identical to 
this year's version, had not carefully considered the impact of 
its provisions before the bill was put on the express track to 
the House floor. The Sensenbrenner bill was essentially a wish 
list of deadlines and other procedures which might be 
achievable in some States and in some circumstances following a 
future catastrophe, but not necessarily in other States under 
different conditions.
    That bill, as originally introduced, had a deadline of only 
21 days to hold special elections, a number apparently made up 
out of whole cloth. There were no guarantees that the bill as 
structured would achieve the goal of national special election 
uniformity it sought. And some of us have reservations about 
whether that goal is desirable. The bill sets up conditions 
which must be met, conditions which would require States to 
amend their laws and sometimes their State's constitutions to 
come into compliance. The States must essentially invent 
mechanisms to implement what may be radical changes in their 
own election laws and political structures.
    What could happen if the States failed to do so? Last 
year's bill did not say. Neither does the new version.
    Two major amendments sponsored by the minority were 
accepted last year, one of them very reluctantly, on the House 
floor. The first amendment dealt with the time frame for 
sending ballots to overseas absentee and military voters. The 
other was adopted as the motion to recommit after the Rules 
Committee refused to allow Ranking Member Larson to present it 
in the Committee of the Whole in the form of an amendment. It 
was intended to protect major civil rights and voting rights 
laws, and laws to protect handicapped voters, from being 
gutted. What was most revealing is that the sponsors apparently 
never considered these basic issues themselves before they 
introduced the bill, nor did they attempt to amend it in 
committee to include them.
    During last year's debate, Mr. Chairman, critics of the 
bill were attacked, not with a strong defense of the bill, but 
rather with unfair and misleading attacks on various ideas for 
constitutional amendments intended to plug gaps in the bill or 
to address related continuity of government issues. And I make 
that observation as a member who voted against not only the 
bill last year, but both Representative Baird's constitutional 
amendment providing temporary appointments to the House and 
Representative Dreier's constitutional amendment approved on 
January 4, 2005, the one masquerading as a House rule, which 
gives the House, without a quorum, all sorts of extraordinary 
powers which the Framers of the Constitution explicitly 
prohibited it from exercising.
    Now as for the bill before us today, H.R. 841, it purports 
to provide a maximum of 45 days for the entire special election 
process. But the requirement adopted last year in the motion to 
recommit, which I mentioned earlier, to comply with other 
applicable Federal laws, may be incompatible with such a 
deadline. We don't know how long these elections may take, even 
if this bill was enacted.
    But for purposes of this markup, I will take the 45 days at 
face value. The amendment, which I will shortly offer would 
allow a total of 60 days. The House last year rejected an 
amendment proposing 75 days. So I believe this is a reasonable 
compromise. In California, we currently have a special election 
in progress for the late Congressman Bob Matsui's seat using 
approximately that time frame. The amendment would introduce 
great flexibility into the expedited process, to allow more 
time for the elections and to give States additional options on 
how to conduct them. 60 days is not a magic bullet, Mr. 
Chairman, any more than 45 days is, and members can find many 
supporters of different deadlines.
    Proponents of the bill have often cited Doug Lewis, 
executive director of the Election Center, which represents 
States and local election officials nationwide, but he has not 
endorsed this bill and has said in other venues that 45 days is 
still too short and that a time frame closer to 60 days would 
provide States with greater assurances of success. State and 
local election officials at election process forums over the 
last 2 years have raised questions about the time frame as 
well. And I have talked with Secretaries of State even before I 
came to the meeting today, and they are still not clear as to 
why the 45 days was chosen and not a longer period.
    In testimony prepared by this committee in September of 
2003, Mr. Lewis framed the debate as follows and I quote:

    What is an election? Is that a date certain event so that 
voters can vote or is it more than that? Is an election in 
American democracy really a process and includes time for the 
identification of candidates, the ability of candidates to 
mount a campaign, to raise funds, to attract supporters, to 
inform the voters of what their choices are between individual 
contestants and then going to the polls to make that choice? 
The point is this: If it is only an event, then we can 
structure an event in a short time frame and carry out the 
events as flawlessly as possible. If however, you define it in 
the broader process terms, then you have to allow the process 
time to work.

    Mr. Chairman, I prefer to come down on the side of the 
interests of democracy. And my instincts as a candidate in many 
elections at the local, State and national level tell me that 
45 days is simply too short.
    If my 60-day amendment were to be adopted, I then would 
propose technical changes in the bill's provisions relating to 
military and overseas absentee voting without changing their 
substance, since these provisions as written in the bill are 
geared to the 45-day schedule.
    Mr. Chairman, of course, no House can bind a future one and 
the House can make its own judgment on seating Members based on 
the totality of facts in any potential election contest. 
However, since the intent of the bill is to fill vacancies in 
the House, we should not create artificial barriers to doing 
so. And I would remind my colleagues that nothing in the bill 
itself provides that a Member-elect would rush to the floor to 
be sworn in at the end of 45 days, 60 days or any other such 
framework. States must correct their results, certify their 
returns, await receipt of absentee ballots, and possibly 
recount ballots in close elections. The 2004 Washington 
gubernatorial race demonstrates the possibilities of 
controversy and delay inherent in the election administration 
process.
    I will put the rest of my statement in the record. But I do 
feel strongly about this issue because California has an 
election system in which people take great pride in exercising 
their franchise and don't like being dictated to by anyone. The 
original bill would have gutted our State's long-standing 
political traditions at a time when a reconstituted Congress 
needs to renew its legitimacy from the American people.
    [The statement of Ms. Millender-McDonald follows:]



    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    The Chairman. I thank the gentlelady. Any other statements.
    Mrs. Miller. I certainly want to begin by commending you, 
Mr. Chairman, as well as Chairmen Sensenbrenner and Dreier for 
all the work that all of you have put into this issue. The 
legislation we are going to be marking up today deals with the 
most serious situation, and so I commend everyone for the very 
serious consideration they have given this issue, as well as 
their commitment to achieve a solution that I think enjoys 
bipartisan support. The need for this legislation is so very 
important in the wake of the absolutely horrific attacks on our 
Nation of 9/11. And as we all remember so vividly, on that day, 
the enemies of freedom clearly targeted the pillars of our 
Nation.
    The terrorist attack at the World Trade Towers, which 
represented our economic freedoms. The enemies of freedom also 
attacked the Pentagon, which represents our military strength. 
And certainly by all accounts flight number 93 was targeted at 
either the White House or the Capitol building, both symbols of 
our Democratic form of government and of our freedom. If it had 
not been for the absolutely heroic actions by those passengers, 
really ordinary Americans who exhibited extraordinary bravery, 
that particular plane may very well have reached its intended 
targets.
    The results would have been unthinkable. So now we 
contemplate how best to prepare for the unthinkable. The 
Congress must ensure that our government remain strong and 
stable in the event of a catastrophic attack. As we grapple 
with this issue, we want to remind to ourselves that the U.S. 
House of Representatives is the peoples' House. For the 
entirety of our national existence, Members of the House have 
been directly elected by the people and even a terrorist attack 
should not be reason enough to change its historical content.
    Article 1, section 2 of our Constitution states when 
vacancies happen in the representation from any State, the 
executive authority thereof shall issue writs of election to 
fill such vacancies. The operative phrase is election. In the 
bill we are marking up today continues the tradition we fell 
firm to for as I say the entirety of our national existence 
certainly allows us to remain true to the course that was 
charted for us by our Founding Fathers.
    Our Constitution and our laws have already addressed the 
other branches of government. The President would be replaced 
quickly by the existing line of succession. The courts would be 
replaced quickly by presidential appointment. The Senate would 
be reconstituted very quickly through the gubernatorial 
appointments, as the 17 amendment outlines.
    Only the House, the House of Representatives, would not be 
able to function quickly during a time of national emergency 
because of the constitutional provision which requires direct 
elections of the Members. I believe that this legislation that 
we are considering today is a very well thought out and 
reasonable approach which will serve our Nation well into the 
future. This bill requires special elections to fill vacancies 
in the House of Representatives within a 45-day period after a 
vacancy is announced by the Speaker of the House in the 
extraordinary circumstances that the number of vacancies 
exceeds 100. Some will argue as the, minority leader just did, 
that more time is necessary, but I certainly disagree with 
that.
    Last week this committee held a hearing on the Help America 
Vote Act. One effect of that law that was not discussed 
actually was its impact on election officials in preparing for 
a special election. Local clerks now have the tools would HAVA, 
actually, to conduct a special election much more easily than 
they could have previously. And this is not to say such an 
undertaking would be easy. It would be difficult.
    I can tell you, based on my experience as the chief 
elections officer in the great State of Michigan previously, I 
am very confident that our election officials across our Nation 
will rise to the occasion to complete the required work 
especially in a time of national emergency. It has been said 
that the price of freedom is remaining ever vigilant and the 
enemies of freedom will find that America is. Thank you very 
much.
    The Chairman. Thank the gentlelady for her statement. Mr. 
Reynolds? If not, the Chair lays before the committee H.R. 841 
open to the amendment and the Chair offers an amendment in the 
nature of a substitute. And this is the amendment I previously 
mentioned with the change and I appreciate the minority made to 
make the bill better and to improve a couple of those issues in 
the bill. Any discussion on this?
    [The information follows:]



    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Ms. Millender-McDonald. Mr. Chairman, at this time I would 
like to offer an amendment to the amendment in the nature of a 
substitute which has been distributed to the members.
    The Chairman. The clerk will report the amendment.
    [The information follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    The Clerk. Amendment offered by Ms. Millender-McDonald to 
the amendment in the nature of a substitute. Section 26 B 2 of 
the revised statutes of the United States as proposed to be 
added by the amendment, strike 45 days and insert 60 days.
    The Chairman. Question is on the amendment which was 
previously discussed. Those in favor of the amendment will say 
aye. Those opposed will say nay. In the opinion of the Chair, 
the nays have it and the amendment fails. Question is now on 
the amendment in the nature of a substitute. Those in favor of 
the amendment will say aye. Those opposed will say nay. The 
amendment is agreed to. The Chair recognizes Mr. Ehlers for the 
purpose of offering a motion.
    Mr. Ehlers. Mr. Chairman, I move that the committee order 
H.R. 841 as amended be reported favorably to the House of 
Representatives.
    The Chairman. Moved and seconded. The question is on the 
motion. Those in favor of the motion will say aye. Those 
opposed will say nay. In the opinion of the Chair, the ayes 
have it. The motion is agreed to. And the committee orders that 
H.R. 841 be reported favorably to the House of Representatives.
    I ask unanimous consent that members have 7 legislative 
days for statements and materials to be entered into the 
appropriate place in the record. Without objection, the 
material will be so entered. I ask unanimous consent that the 
staff be authorized to make technical and conforming changes on 
all matters considered by the committee at today's meeting. 
Without objection, so ordered.
    Ms. Millender-McDonald. Mr. Chairman, I now announce, 
pursuant to the provisions of clause 2(1) of rule XI, my 
intention to seek not less than the two additional calendar 
days provided by that rule to prepare additional views to be 
filed with the committee report.
    The Chairman. The gentlelady is in order for her request. 
Without objection, the request is granted. I want to thank the 
gentlelady for the thoughtful amendments and the amendment you 
proposed. I thank the members for your time. And I also want to 
recognize all of the special guests we have today visiting the 
Capitol, but also one of our State representatives, Mary Taylor 
from the 43rd District in Ohio.
    Ms. Millender-McDonald. Mr. Chairman, let me just thank you 
for at least bringing this bill to the committee. It certainly 
could have attempted to bypass us and gone directly to the 
floor. It is because of your leadership that we had at least an 
opportunity to speak on it.
    The Chairman. We did that when Congressman Larson was here. 
And your request, I think it was a right request for you to 
make. With that, if there is no further business, the committee 
will be adjourned.
    [Whereupon, at 2:30 p.m., the committee was adjourned.]

                                  
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