[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
__________
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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
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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.]