[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CONTINUITY OF CONGRESS IN THE WAKE OF A CATASTROPHIC ATTACK
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 23, 2009
__________
Serial No. 111-17
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
51-227 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
JULY 23, 2009
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 2
WITNESSES
The Honorable Brian Baird, a Representative in Congress from the
State of Washington
Oral Testimony................................................. 4
Prepared Statement............................................. 6
The Honorable Dana Rohrabacher, a representative in Congress from
the State of California
Oral Testimony................................................. 9
Prepared Statement............................................. 12
Mr. John C. Fortier, Research Fellow, American Enterprise
Institute
Oral Testimony................................................. 25
Prepared Statement............................................. 27
Mr. R. Eric Petersen, Analyst in American National Government,
Congressional Research Service
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Mr. Harold C. Relyea, former Analyst, Congressional Research
Service
Oral Testimony................................................. 51
Prepared Statement............................................. 53
APPENDIX
Material Submitted for the Hearing Record........................ 71
CONTINUITY OF CONGRESS IN THE WAKE OF A CATASTROPHIC ATTACK
----------
THURSDAY, JULY 23, 2009
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:10 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Conyers, Scott, Sherman,
Sensenbrenner, Rooney, and Gohmert.
Staff Present: David Lachmann, Subcommittee Chief of Staff;
and Paul Taylor, Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. The first order of business, the Chair will recognize
himself for 5 minutes for an opening statement.
Today's hearing deals with a very important problem: the
continuity of the Congress in the event of a catastrophic
attack. In the years since 9/11, this issue has virtually
dropped off the radar. While the Congress has taken some
actions to prepare for such an eventuality it is far from clear
that our work is finished. In fact, I would say it is clear
that our work is not finished. I hope to hear from today's
witnesses about some of these important issues.
Most importantly, we need to know whether our current
system is sufficient to ensure that necessary governing
functions continue in a manner that is both constitutional and
effective. We cannot wait until a crisis to find out whether we
are adequately prepared for a catastrophe. I am very concerned
that however we choose to respond, that the American people
will have confidence in the new Congress and view its actions
as legitimate.
Congress has important and exclusive functions under the
Constitution and we must guarantee that those functions remain
vital in a national emergency, or one might even say especially
in a national emergency. I am especially concerned that a House
of Representatives, well short of the majority of its 435
seats, might wield the war power or the power of the purse
without legitimacy. The damage to our institutions from a rump
Congress declaring war, for example, would be incalculable.
Nonetheless, we must weigh the dangers of a substantial
diminished Congress against the danger of a President
exercising unchecked power in the absence of a functioning
Congress. The Nation runs the risk in a national crisis of
those proportions of turning into a dictatorship. If the person
who controls the most divisions gets to run the show, then the
attack will have been successful in a way that we cannot
accept.
Similarly it is not clear how we can deal with the problem
of determining when Members are incapacitated, who should make
that decision, how to respond and how and when to determine
that the incapacity is over.
It is not entirely clear that the current House rules deal
with this issue in a manner consistent with the Constitution.
It is my fervent hope that the circumstances necessitating
these extraordinary actions will never come to pass. No one
wants to have to contemplate such an eventuality but we cannot
fail to deal with the responsibility. The Nation would be ill-
served and the future of our successful system of democracy in
peril.
I thank the witnesses. I look forward to your testimony.
I will now recognize the distinguished Ranking Member for 5
minutes for your opening statement.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman. Just
a few years ago, Congress acted in an overwhelmingly bipartisan
fashion and passed the Continuity and Representative Act by
huge margins that included the support of over two-thirds of
the Democratic Caucus. That legislation, which I authored with
the help of then-Ranking Member Conyers and then-Ranking Member
Skelton, from the House Armed Services Committee, will preserve
the people's constitutional right to direct elected
representation by requiring the expedited special election of
new Members in the event there are more than 100 vacancies in
the House.
James Madison used the strongest of terms when stating the
House must be composed of only those elected by the people.
Madison wrote that direct elections are, quote, unquestionably
the only policy by which the House can have an immediate
sympathy with the people. The House, uniquely among all the
branches and bodies of the entire Federal Government, is rooted
in the principle of direct elections and that principle must be
preserved.
Current Federal law allows the Presidency and the Senate to
consist of entirely the unelected in certain circumstances.
Without an elected House, the entire Federal Government could
be run, laws could be written, without a single branch
representing the popular will. I have no doubt that the bond of
the spirit of the American people will ensure that democracy
prevails even in the most pressing conditions.
Just as the recovery of the Pentagon and the World Trade
Center sites were accomplished far quicker than most imagined,
I have the greatest confidence that the American people and the
State and local election officials would act expeditiously to
restore the people's House in a time of emergency.
A study conducted by The Elections Center, a nonpartisan
organization representing the Nation's election officials, has
shown that expedited special elections can be conducted within
a 45-day time frame. As the CBO has pointed out, ten States
already require special elections within 45 days under normal
circumstances. And in the future, absentee and overseas ballots
requested by electronic means can further facilitate the timely
conducting of special elections.
In the interest of providing Members with a full array of
options and addressing issues such as institutionally
foundational importance, as Chairman of the Committee I agree
to report out adversely Representative Baird's proposed
constitutional amendment that would authorize nonelected
members for the first time in history.
That amendment was fully debated in Committee where
amendments could be offered. Indeed, throughout that debate I
asked over a half-dozen times if any Members wanted to offer
any amendments and no one did. And when Representative Baird's
proposed constitutional amendment received a vote on the House
floor it was overwhelmingly defeated. Indeed, it failed to
achieve even a one-sixth vote. The vote was 63 yes, 353 no, let
alone the constitutionally required two-thirds vote.
Of all the constitutional amendments the House has ever
held hearings on, that proposal was the most overwhelmingly
disapproved constitutional amendment in the history of
Congress.
A proposed constitutional amendment fared even more poorly
in the Senate, where it failed to receive even a markup by the
Senate Judiciary Committee.
On the other hand, the Senate has already begun the process
of providing that all Senators be elected by holding a joint
hearing in March with this very Subcommittee, on a bipartisan
proposal to amend the Constitution to provide more democracy,
not less, by requiring that Senators always be elected. That
proposal, of course, was spurred by the corruption surrounding
the appointment of President Obama's successor in the Senate.
Just a couple weeks ago it was reported that a former chief
of staff to impeached Illinois Governor Rod Blagojevich pleaded
guilty to taking part in a scheme to sell or trade the
President's vacant Senate seat and will testify at the now
disgraced Governor's corruption trial. He pleaded guilty to
wire fraud for a phone conversation about appointing Obama
adviser Valerie Jarrett to the seat; and in return, Mr.
Blagojevich would get a job as head of a union-sponsored
organization. Opening the House of Representatives to the same
corrupt dealings through an appointment process is exactly the
wrong way to go.
Finally, let me quote another former Senator, now Vice
President Joe Biden. A few years ago he was asked by George
Stephanopoulos of ABC News whether he thought it was a good
idea for candidates to sign a pledge to establish specific
rules to ensure that Congress could reconstitute itself through
nonelected Members immediately after an attack. To that,
Senator Biden stated, and I quote, I think that is the worst
idea in the world.
Joe Biden is right. And with that in mind, I look forward
to hearing from today's witnesses.
Mr. Nadler. I thank the gentleman, and I am glad we have on
the record the statement from the Chairman that the Vice
President is right on something.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I ask that other Members submit their
statements for the record. Without objection, all Members will
have 5 legislative days to submit opening statements for
inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing.
We will now turn to our first panel of witnesses.
Representative Brian Baird has represented the Third District
of Washington since 1998. He is a licensed clinical
psychologist who has practiced in Washington State and Oregon.
He has also taught at the university level as a former chairman
in the Department of Psychology at Pacific Lutheran University.
Prior to his election Congressman Baird worked in the State
Veterans Administration psychiatric hospitals, community mental
health clinics, substance abuse treatment programs,
institutions for juvenile offenders and head injury
rehabilitation programs.
He currently serves on the House Transportation
Infrastructure Committee and the Science and Technology
Committee where he serves as the Chairman of the Energy and
Environment Subcommittee.
Representative Dana Rohrabacher is currently serving his
11th term in Congress representing California's 46th District.
He is the Ranking Member of the International Organizations,
Human Rights, and Oversight Subcommittee of the House Foreign
Affairs Committee.
Prior to his first election to Congress in 1988, he served
as Special Assistant to President Reagan. He is a native of
Orange County. Prior to joining the Reagan White House staff,
he was an editorial writer for the Orange County Register.
Representative Rohrabacher has a B.A. in history from Long
Beach State College and a Master's in American studies from the
University of Southern California. I shall also mention--
because if I don't he will--that he and his wife Rhonda are the
proud parents of triplets: Annika, Tristen, and Christian.
I am pleased to welcome both of you. Your written
statements in their entirety will be made part of the record. I
would ask each of you to summarize your testimony in 5 minutes
or less. To help you stay within that time, as you know, there
is a timing light at your table. When 1 minute remains, the
light will switch from green to yellow, and then red when the 5
minutes are up. Congressman Baird.
TESTIMONY OF THE HONORABLE BRIAN BAIRD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Baird. Mr. Chairman, Ranking Member, friends and
distinguished colleagues, I want to thank you for holding this
hearing on what I consider to be one of the most important
matters that may come before Congress during our careers and
perhaps during our lifetimes. I am referring to the need to
ensure that the Congress itself will continue in a
constitutionally valid manner if a terrorist attack, pandemic
disease, natural disaster or other catastrophic event results
in the death or incapacitation of large numbers of the House of
Representatives.
The matter has been discussed before but we still lack a
solution that is either constitutionally valid or functional in
practice. That fact suggests a failure to uphold our sacred
oath of office.
I will make four points today:
First, there is no doubt that we face a real possibility of
terrorist attack, disease or natural catastrophe.
Second, we have no constitutionally valid mechanism for
dealing with such events.
Third, if an attack or disaster occurs, it will create a
constitutional crisis and confusion at precisely the worst
possible moment.
And fourth, responsible, constitutionally valid, and
practical options have been proposed and it is time for
Congress to act on them.
Post September 11th the first point would seem to be
obvious, yet many appear to deny or minimize it. There are
worse ideas, Mr. Ranking Member, to temporary placement, and
that is no Congress at all. That is a much worse idea.
To those who still do not recognize the threat, let me
quote from the report of the Commission on the Prevention of
Weapons of Mass Destruction, Senator Bob Graham and Jim Talent.
That report begins, in quotes, Unless the world community
acts decisively and with great urgency, it is more likely than
not that a weapon of mass destruction will be used in a
terrorist attack somewhere in the world by the end of 2013.
If we are sworn to uphold the Constitution, we should not
leave such gaps as exist today. In 2005, as was mentioned, a
provision was attached to an appropriations bill following a
hearing--by the way, at which I was not allowed to testify on
the nature of my own bill. That was passed by the House. But it
creates a procedure in which the House rules set a provisional
quorum in catastrophic circumstances allowing the House to
operate under a provisional quorum.
First of all, let's talk about special elections. We have
actually done some work on this. To our knowledge, those who
passed that bill have not; but we looked into it and asked how
many States actually have conducted elections in the requisite
time period. In fact, only one has of the prior 21 special
elections since that bill passed. The average, in fact, has
been not some 40 days, but 117 days.
The most recent two elections were in response to known
vacancies, not crisis events, and they took respectively 140
days in the case of Hilda Solis, 91 days in the case of Rahm
Emanuel, et cetera.
Some could argue that we will move faster after a disaster.
I find that a remarkable assertion, but we actually have
evidence. The primary election in Louisiana was scheduled for
150 days after the President declared disaster. It did not
actually occur until 239 days after the disaster election. So
much for the idea that disaster speeds things up and makes
people do things more quickly.
How States responded: We find very few States that have
enacted any laws suggesting they could in fact conduct
elections in the requisite time period.
I also believe that, as we will hear from Mr. Fortier, that
the constitution of the temporary quorum is blatantly
unconstitutional and, at best, a fig leaf to try to fill in the
gap. It is impossible to imagine that the framers of the
Constitution wanted a Congress comprised of one or two Members
and a quorum consisting of half of that for the purpose of
declaring war, instituting a draft, appropriating money and
impeaching a President, and possibly electing the President in
the form of the Speaker of the House. I cannot imagine they
were serious about that.
What happens if we don't act? What happens is
constitutional crisis and uncertainty, or a rump government;
either an executive branch declaring martial law or a few
Members saying, ``We are the Congress and we can do all the
aforementioned things.''
That is not the condition that we should leave this country
in, and it is hard for me to believe that we would be
responsible if we did.
Finally, solutions have been proposed. Mr. Rohrabacher has
offered a bill which I have co-sponsored, I have offered a bill
which he has co-sponsored. The Continuity of Government
Commission has offered an alternative approach. The key point
for us is this: The status quo is untenable, it is dangerous
for a constitutional democratic Republic; solutions have been
offered, they ought to be implemented--one of the
aforementioned or something better perhaps, before, not after.
Now, there are critics of this. Some wish to believe that
we won't ever get killed. You know I said good-bye to my kids 1
day before I went to Iraq. And one of my little boys, who is
four, said, ``Daddy, how do I know you are not going to get
die-ded while you're over there?'' And I said to him, ``Son,
don't worry, Daddy is not going to die.'' I lied to him. I am
going to die, so are all of you, so are all of we. The question
is how and when.
But I did take assurance that if something did happen to
me, my son would be cared for. We have that responsibility and
we cannot lie anymore. Neither can we put forward resolutions
that are unconstitutional or based on wishful thinking, and
neither can we not act.
So, Mr. Chairman, thank you for holding this important
hearing. I appreciate it. And I appreciate my colleagues'
attention and interest. And I am honored to be here with my
good friend and colleague, Mr. Rohrabacher, who has worked so
hard on this. And I yield back.
Mr. Nadler. I thank you.
[The prepared statement of Mr. Baird follows:]
Prepared Statement of the Honorable Brian Baird, a Representative in
Congress from the State of Washington
Mr. Chairman, Ranking Member, friends and distinguished colleagues.
I want to thank you for holding this hearing on what I consider to
be one of the most important matters that may come before Congress
during our careers, perhaps during our lifetimes.
I am referring to the need to ensure that the Congress itself will
continue in a constitutionally valid manner if a terrorist attack,
pandemic disease, natural disaster or any other catastrophic event
results in the death or incapacitation of large numbers of the House of
Representatives. This matter has been discussed before, but we still
lack a solution that is either constitutionally valid or functional in
practice. That fact suggests a failure to uphold our sacred oath of
office
I will make four points today. 1. First, there is no doubt that we
face a real possibility of terrorist attack, disease or natural
catastrophe. 2. Second, we have no constitutionally valid mechanism for
dealing with such events. 3. Third, if an attack or natural disaster
does occur, the lack of a valid solution will create confusion and
constitutional crisis at precisely the worst possible moment. 4.
Fourth, responsible, constitutionally valid and practical options have
been proposed and it is time for Congress to act on them before they
are needed, not after.
1. The Risk
Post September 11, 2001 the first point would seem to be obvious,
yet many appear to deny or minimize it. To those who still do not
recognize the threat, let me quote from the report of the Commission on
the Prevention of Weapons of Mass Destruction Proliferation and
Terrorism headed by our former colleagues, Senators Bob Graham and Jim
Talent. The opening sentence of that document reads,
``. . . unless the world community acts decisively and with great
urgency, it is more likely than not that a weapon of mass destruction
will be used in a terrorist attack somewhere in the world by the end of
2013.''
We do not know of course where such an event might occur, but
surely we must recognize that we work in a building and city that have
to be high on the priority target list. As such, we should prepare for
that possibility. This raises the second point.
2. Lack of Preparation and Unconstitutional Measures
If we are sworn to uphold and defend the Constitution, we should
not knowingly allow a situation to occur that would virtually require
the violation of fundamental principles of our Constitution. Neither
should we pass laws or rules that are clearly contrary to
Constitutional mandates. Unfortunately, we have in fact done both.
In 2005, a provision was attached to an appropriations bill
requiring that special elections be held within 49 days of the Speaker
declaring that vacancies have exceeded 100 members. Separately, House
Rules now create a procedure for the Speaker of the House to set a
provisional quorum in catastrophic circumstances, allowing the House to
operate under a ``provisional quorum'', creating a dangerous and
unconstitutional situation.
Let us deal first with the practicality of the Special Election
requirement. Since the law was passed, there have been 21 special
elections for vacant House seats. In that period, only one election has
in fact been held within 49 days. The average has been 117 days. The
two most recent elections, which came in response to known and
predicted vacancies, had the following time frames: Judy Chu to replace
Hilda Solis 140 days and Mike Quigley to replace Rahm Emanuel, 91 days.
It took 90 days to replace the late Stephanie Tubb's Jones, 134 days to
replace now Senator Roger Wicker, and the list goes on.
Some may argue that things would move faster after a disaster, but
that assertion is contrary to the evidence from Hurricane Katrina.
There, a primary election which was originally scheduled for 150 days
after the Presidential disaster declaration was delayed until 239 days
after the declaration and even then its legitimacy was questioned by
many. So much for the idea that disaster will speed things up.
How have states responded to the Congressional directive that they
be able to hold elections within 49 days of a disaster? There too, we
find troubling evidence. My staff contacted secretaries of state from
across the country and found that only two states had done anything to
prepare for the requirements of the legislation. Many reported that
they did not believe they could in fact implement elections in the time
period demanded. Also troubling was the discovery that none of those
contacted indicated that they had been asked by anyone else in Congress
about their preparedness. Apparently, those who pushed the legislation
forward did not pay subsequent attention at all to its implementation.
Turning now to the second issue, this provisional quorum, passed
for the first time at the beginning of the 109th Congress, is a radical
departure from House precedent and I believe, unconstitutional. Article
1, section 5 of the Constitution specifies that a ``majority of each''
body ``shall constitute a quorum'' to do business. The first order of
business of the first Congress was to adjourn for lack of a quorum.
Clearly, the first Congress understood that to have legitimacy as a
legislative body they had to have at least half of their elected
members present.
By comparison, these House rules would violate the Constitutional
requirement of a majority quorum by allowing a provisional quorum to do
business with as few as two or three members. Other witnesses here
today, notably Mr. Fortier, have written extensively about the
constitutionality or, better said, the unconstitutionality of this
rule.
I find Mr. Fortier's analysis compelling, but for those who are not
legal scholars, I simply ask this: Do you believe that the people who
wrote our Constitution and placed such strong emphasis on proportional
representation could seriously have intended that a handful, perhaps
just two or three people should be empowered to take the country into
war, establish a draft, appropriate huge sums of money, impeach a
president, and perhaps even select a president in the form of the
Speaker of the House? To personalize this, I then ask, would you feel
comfortable knowing that you had no representative voice in this
process and that the few who might claim to make up a quorum could well
come from the extreme wing of the opposing party?
Most legal scholars, and most of our constituents rightly conclude
that this situation is not only unconstitutional, it is foolhardy,
dangerous and violates completely the principal of proportionate
representation.
3. Confusion and Uncertainty at the Worst Possible Moment
We cannot know if, when or how a terrorist attack, disaster or
deadly disease might arrive, but we can easily imagine that through
malicious intent or misfortune large numbers of the Congress, the
Executive Branch and the Judiciary might be killed or incapacitated. If
that occurred under present law, the previously described
constitutional questions and violations would produce profound
uncertainty and conflict. What is more, the very institutions
designated to resolve such issues would themselves be incapable of
acting to correct and clarify the situation.
Imagine the President and Vice President have perished leaving
competing interests within Congress and the Executive Branch vying for
power among the limited group of survivors. Imagine that the partisan
political balance of Congress is dramatically shifted, giving a former
minority control of the House and Senate, including the ability to
elect the Speaker--who is third in line for the Presidency. Imagine
resolutions to declare war, instate a draft, declare martial law etc.
being passed, then challenged for constitutionality but with no Supreme
Court to hear the case.
By passing unconstitutional rules, we have ourselves created the
potential for conditions that suspend core principals of proportionate
representation and legislative checks and balances By failing to enact
valid and practical provisions for ensuring Congressional continuity,
we have left a virtual invitation for terrorists to dramatically alter
our political system and our governmental function. As dangerous as are
the conflicts within our own land, the potential of foreign adversaries
to take advantage of the confusion are profoundly dangerous.
This is not a potentiality that the most powerful nation, the
leader of the free world, should allow to continue.
4. Solutions Exist but Must Be Enacted
Many people have spent a tremendous amount of time and energy
evaluating the problems described here and proposing solutions. The
most extensive work has been done by the Continuity of Government
Commission, which was headed by Norman Ornstein of the American
Enterprise Institute and Thomas Mann of the Brookings Institution, with
co-chairs the late Lloyd Cutler and former Senator Alan Simpson. This
commission, comprised of some of the best scholars in the country
concluded that action must be taken and a constitutional amendment
would be required that would empower Congress to provide for its own
continuity.
Within the Congress, I have offered a proposed solution in the form
of a Constitutional Amendment requiring that Members of Congress
generate a list of temporary replacements who would fill vacant seats
until such times as real and valid elections could be held. This
mechanism would ensure that political balance not be altered by
terrorist attack and that replacements would be statesmen and women of
integrity and experience. What is more, as the replacements would be
temporary, the public would also have a constitutionally guaranteed
right to hold an election to fill the position at the earliest possible
date.
Mr. Rohrabacher has a somewhat different approach, which he will
describe shortly.
I should note that Mr. Rohrabacher and I have cosponsored each
other's bills because what matters most to both of us is not that our
legislation per se pass but, more importantly, that a constitutionally
valid solution be created.
Response to Criticism
Of course not everyone will agree with these proposals.
Some, as mentioned earlier, will deny that the problem exists at
all. Frankly, there is not much that can or should need to be said
about this position. If people cannot grasp that a nuclear or
biological weapon can kill us, it is doubtful that they will be able to
grasp whatever solution is offered to deal with that reality. This
limitation should not, however, be allowed to leave our nation in
peril.
Others may recognize the risks but, precisely because those risks
are so real and horrific, they prefer to not deal with them, finding it
too stressful emotionally or too complex politically. This reaction is
understandable, but it is not sufficient. We are granted profound
responsibility in our positions as representatives and we must not
shirk that responsibility, regardless of the difficulty.
A third response has been to suggest that we needn't act today
because someone will undoubtedly survive and the magnitude of the
catastrophe will ensure that they do the right thing by the country
under the circumstances. This belief might be comforting, but it is
based on a deeply faulty premise. There is no guarantee whatsoever that
a crisis brings out the best in people or that the best people will
somehow miraculously be among the survivors. In fact, crises often
bring out the worst in some people and there is every possibility that
some, perhaps many, of the survivors will not have the abilities,
dispositions or motives to manage the situation as well as needed. That
is why we must act now to ensure there is a constitutionally valid way
of selecting the best people to fill vacancies beforehand, not after
the fact.
Finally, perhaps the most strident opposition to the proposed
solutions comes from those who assert, accurately, that no one has ever
served in the House of Representatives who was not directly elected.
That assertion is historically true Constitutionally mandated, and it
is something that members of the House are rightfully proud of. The
trouble, however, is that it is also true that the House, Senate and
Executive have never been simultaneously decapitated. The Constitution
does not deal with that possibility nor likely could it have done so,
given the historical context in which it was written.
Insisting that direct election to the House is more important than
the existence of a House itself, is a bit like a parent of a child
saying ``If I am not alive to care for my family then no one can, so I
won't take out insurance or appoint a legal guardian.''
What matters most to our constituents, and to the Constitution, is
not that we as specific individuals are the representatives, it is that
the people have representation and that the principals of separation of
powers and checks and balances are preserved.
No one, absolutely no one, who has addressed this issue seriously
is suggesting that there should not be elections to replace vacancies
in the House. To suggest otherwise is misleading demagoguery.
The only real questions are what should happen to Congress and to
our country in the interim between a catastrophe and until elections
can be held, and how best do we insure that the elections when they are
held are valid and fair.
Proposed remedies by Mr. Rohrabacher, myself, and the Continuity
Commission all answer these questions in ways that would allow a
constitutionally valid Congress to be up and running with a full and
valid quorum and with all Americans having legitimate representation in
as little as twenty four hours or less after a devastating attack. I
know of no better way to ensure that our liberties are preserved and
that terrorists worst intentions are defeated.
If, within a day of the worst attack in our history, our Congress,
executive and courts are up and running again, we will show
unequivocally that the strength of this nation transcends specific
individuals and that our central institutions can never be taken down
by those who would do us harm, then we will have done a deep and
lasting service to our nation. If, however, we knowingly fail to act,
or if we act by passing symbolic but ineffective and unconstitutional
measures, we will have left the nation in peril and failed in our
responsibilities.
That is the choice before us today. I appreciate the committee's
attention and urge passage of real and lasting solutions.
__________
Mr. Nadler. And I now recognize Congressman Rohrabacher.
TESTIMONY OF THE HONORABLE DANA ROHRABACHER, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Rohrabacher. Thank you very much, Mr. Chairman. And I
appreciate this opportunity to testify.
Providing for the continuity of Congress has been a special
cause for my colleague, Mr. Baird. And I have shared that with
him, just as we have shared the experience together on the
steps of the Capitol on September 11, 2001. It was clear on
that day when we stood and had seen the mayhem that had gone
down in New York and this attack on the Pentagon, it was clear
that day what could have happened to this branch of government
on that day.
Brian and I each have our own proposals of how to deal with
that threat, because that threat is still there and the current
status quo does not work.
The House Joint Resolution 52 and 53 respectively, Mr.
Baird's and my own, addresses the continuity of Congress in
case of a man-made or a natural catastrophe. However, we both
co-sponsored each other's proposals in the belief that either
of these proposals are so much better than the current status
quo in which we are totally vulnerable immediately after an
attack. And that has not escaped those terrorists and those
enemies of our country. They know that if they would bring down
some attack on this Congress that would incapacitate or kill a
number of us, that for a large length of time, whether it is 25
days or 45 days or 100 days, we would have no legislative
branch of government.
And as my colleague has said, having someone here is
certainly--and having a responsible make-up, is certainly
better than not having anybody here except maybe one or two
people claiming to have the powers of the Congress.
I would like to address specifically my proposal which is
House Joint Resolution 53, which not only will allow Congress
to continue operations in the face of a massive tragedy, but
will also make Congress a little bit more democratic in the
small ``d'' sense of the word, because we do face situations
where there are vacancies every year.
Today in the Senate, we have seen Massachusetts and West
Virginia lose half of their representation for weeks and months
at a time because of their Senators' health problems. And not
long ago in South Dakota it lost its benefit of half its Senate
delegation for almost a year because our Constitution has no
provision for dealing with a long-term disability if a Senator
declines to resign his seat.
We have seen major controversies regarding the filling of
Senate vacancies in Illinois and New York because the
Constitution, in its current form, provides only for
gubernatorial appointments as the only alternative to a lengthy
vacancy. And then, of course, it is followed by an expensive
statewide election in States like California and New York.
Until last Thursday, in my home State of California, we had
two fewer Representatives than we were entitled to, and still
have one fewer, because President Obama saw our delegation as a
source of talent for his Administration.
Under our Constitution there is no alternative provided to
a lengthy vacancy for a lack of representation, whether it is
caused by a terrorist attack or whether it is caused by
sickness or by a Member of Congress being appointed to another
position.
House Joint Resolution 53 would solve all of these
constitutional problems by providing that each person who is
elected to the House of Representatives or the Senate must be
elected in combination with an alternate. This provision is, of
course, modeled on how we currently elect the President of the
United States and the Vice President, ensuring that if any
tragedy befalls the President, that we will have an alternate
right there.
You know, we have had these tragedies in the past and the
Vice President has stepped forward. We should have that same
sort of protection for Members of the House and Senate so that
our bodies will not become inoperable after a terrorist attack
or after some kind of major accident.
If an airplane goes down which has Members, a large number
of Members in it, it could change the Majority in our House for
a lengthy period of time. That is not what democracy is all
about, leaving us vulnerable to that type of situation.
So I would just suggest that having an alternate for a
House and Senate Member would provide--which is Mr.
Sensenbrenner's main concern--for an elected Representative
just always to be here in case of an emergency. Just as an
elected Vice President, a Vice President is elected just like
the President; so that takes care of that democratic argument,
but doesn't leave us vulnerable for months and weeks, weeks or
months, at a time after some terrorist attack or some tragedy.
So I would ask my colleagues to take this as a very real
challenge. We are vulnerable. This country, as we speak, is
vulnerable to terrorists and we are also vulnerable to
accidents. Let's correct the situation and make sure that we
can always have a Senate, always have a House of
Representatives, always have a Congress that can function, even
though there has been a terrorist attack or some major tragedy
that has existed.
I think that Mr. Baird's proposal and my own proposal will
go a long way to making this country less vulnerable as it
stands right now. Thank you very much.
Mr. Nadler. Thank you very much.
[The prepared statement of Mr. Rohrabacher follows:]
Prepared Statement of the Honorable Dana Rohrabacher, a Representative
in Congress from the State of California
ATTACHMENT
__________
Mr. Nadler. It is customary in this Committee that we don't
ask questions of colleagues.
Mr. Sensenbrenner. May I ask one?
Mr. Nadler. Okay. Well, we will dispense with our custom. I
recognize the gentleman, the honorary Ranking Member.
Mr. Sensenbrenner. Thank you. Just one quick one. Mr.
Rohrabacher, since you are pushing this Vice Congressman bit,
who would you name as yours?
Mr. Rohrabacher. I would give it great thought and I would
make sure that that person was an acceptable person and someone
known for his honor and integrity. Certainly that would be
something, that judgment would be something I am sure my
constituents would take into consideration, because if I would
pick somebody who is not representative of their values they
would vote against me in the election.
Mr. Sensenbrenner. At least the Vice President was given
the job of being President of the Senate in order to earn the
salary. Most Vice Presidents recently have not showed up there
very much. What duties would the Vice Congressman have? Would
it be kind of like Prince Charles whose job is to wait for his
mother to die?
Mr. Rohrabacher. I think the job of an alternate
Congressman would be the most important job of all, and that is
of being a citizen. And what is happening here is our
government--this is the house of the people, this is the house
of our citizens, and there could be no greater responsibility
of a U.S. citizen to be ready to serve in case of national
emergency.
Mr. Sensenbrenner. Thank you.
Mr. Nadler. I will recognize myself for a couple of
questions since we have dispensed with our custom. Congressman
Rohrabacher, what do you call this, an alternate? What title
did you give this person, the alternate, the assistant?
Mr. Rohrabacher. Excuse me, I can't hear you.
Mr. Nadler. What title did you give this person, the
alternate Congressman, the assistant Congressman?
Mr. Rohrabacher. Alternate.
Mr. Nadler. Alternate. And this alternate would serve only
until the next regular election or only until a special
election to be held?
Mr. Rohrabacher. The alternate would serve, if the Member
is incapacitated or killed, until the next election.
Mr. Nadler. Until the next regular election.
Mr. Rohrabacher. Or, in the case of a Senate, or a special
election.
Mr. Nadler. Okay. Now, let me ask you a different question.
Very often in the normal course of events, if any of us were to
retire, announce that we weren't running again, and a bunch of
candidates suddenly felt compelled to or felt called upon to
declare their availability, you would expect that those
candidates might include local elected officials, a State
senator, a State member of the assembly, a council member,
board of supervisors, whatever. Under the current Constitution,
a Congressman could not also be a State senator or an
assemblyman or anything else.
Do you think that the alternate, that you should be able to
name as the alternate, someone who is currently serving in a
different office so that the people know him--if it were your
judgment--and that he should be able to serve as alternate but
obviously not as Congressman.
Mr. Rohrabacher. The alternate would only be able to serve
if he is eligible for that seat.
Mr. Nadler. No, no. But if he took the seat he would have
to resign as State senator or assemblyman. But while just an
alternate, do you think he should be able to be a State senator
or an assemblyman--or he has to be completely separate?
Mr. Rohrabacher. The answer is no, because he would be the
Congressman at that time.
Mr. Nadler. No. Before he became the Congressman. In other
words, you are naming someone as the alternate.
Mr. Rohrabacher. No, you could not serve in another
position.
Mr. Nadler. While you are an alternate.
Mr. Rohrabacher. Correct.
Mr. Nadler. And why do you think that is a good idea?
Mr. Rohrabacher. I think it is a good idea because we don't
need to have such a concentration of authority and potential
power. There are plenty of people in our society that can serve
as an alternate in case of an emergency. There would be no
reason to concentrate that in the hands of someone who already
holds public office.
And by the way, my staff is reminding me, we also have a
situation where that alternate should be able to come in, in
case someone is incapacitated because of disease, and then
maybe after he is cured of an illness he would then come back
and the alternate would give up that seat.
Mr. Nadler. Thank you. Congressman Baird, do you want to
comment on these questions?
Mr. Baird. I do. And I think the key point I would take in
a bit of a different direction, and it would be this. If we
have a vote today and most of us are on the House floor and
most of us are killed, or State of the Union where vast numbers
are killed, under the current situation you would have a huge
question mark who is going to fill that seat. You will have no
representation.
Most people in the United States of America will have no
representation at all in the House of Representatives. And it
is important to suggest that those who are hard over and say,
validly on the one hand, nobody has ever served who wasn't
elected, that somehow that is more important than having some
representation. I just differ with that.
I would at least like to have somebody chosen by the person
who I have elected from my district, from my State, at least
under the Constitution, giving a voice if we are going to start
a draft, have a war, appropriate funds, impeach a President. I
want a voice there.
Now, the question for me is if I nominate----
Mr. Nadler. And you would assume that the person who is
elected to Congress would select for such an alternate someone
of the same political views, philosophy, et cetera.
Mr. Baird. Exactly. That is exactly the point.
Other proposals, one of the problems with the Senate system
is that you have partisanship. Mr. Sensenbrenner alluded to
that. You have people trying to say, well, let's switch part of
those key parties, et cetera. You shouldn't have that. We would
most likely select statesmen and stateswomen to fill our shoes.
I could name somebody right now. Don Bonker, a former
Representative, well respected in this institution, would do an
admirable job, perhaps better than I would do, if I perished.
And here is the point: With the proposal I put forward, or
Mr. Rohrabacher, within 48 hours, maybe 24 hours of the worst
decapitating event in the history of this country, the House of
Representatives could be reconstituted and the American people
and the world could watch them reconvene. And you would have
people like Don Bonker and Lee Hamilton or Slade Gorton or
distinguished statesmen and stateswomen serving the country
within a 24-hour period, fully comprised 435 voting Members of
the House of Representatives, constitutionally valid
immediately.
Then you have your special elections, then you deal with
declarations of war, but with full representation filled by
statesmen and stateswomen. And to imply we pick somebody else,
through graft or something else, is I think rather specious.
Mr. Nadler. I agree with what you say. Let me just say I
think that, considering the fact that this person wouldn't
function if the person who picked them was still around, you
wouldn't have that temptation.
Mr. Baird. Plus I am dead. Where is the bonus of the graft?
Mr. Nadler. That is what I just said.
Mr. Rohrabacher. And during that time period, we have
already experienced after 9/11, that during that time period
important things happen. Laws are passed to deal with the
current crisis.
We do need elected--and I agree with Jim and the idea of
having elected officials here. And I think that what I am
offering that person is no less elected than the Vice President
of the United States is elected. And we need that to happen.
And I will just--one last thought, if you will. And that
is, Brian and I first got to know each other, I didn't know
Brian until September 11, 2001. We were standing on the steps
with everybody else out here when they held that press
conference with Dick Gephart and I guess Denny Hastert.
And we were standing there and the thing began to break up,
and I grabbed my buddy by the arm, my buddy who I never met
before, and I said, you know, we need to sing God Bless
America. And you know, the two of us, this bipartisan duo,
started singing God Bless America, and everybody turned around
and started coming back.
And you know, it was that unity that we demonstrated, all
of us together that day, that important day, that I think
helped bring America together. So I think it is very fitting
today that we are taking care of business with the friendship
that we started there on 9/11. All of us need to think about
the potential of something horrible like that happening and do
our duty to make sure the American people are well served.
Thank you.
Mr. Nadler. Thank you both for your initiative in this and
for your testimony. And thank you, you are excused.
And we will ask the second panel to come up, and I would
ask the witnesses to take their places. In the interest of time
I will introduce the second panel of witnesses while they are
taking their seats.
John Fortier is a research fellow at the American
Enterprise Institute. He is Executive Director of the
Continuity of Government Commission. He has taught at the
University of Pennsylvania, the University of Delaware, Boston
College, and Harvard University. He holds a B.A. from
Georgetown and a Ph.D. from Boston College.
Dr. Eric Petersen is an analyst in American National
Government in the Congressional Research Service. His areas of
specialization include continuity of government and emergency
preparedness and congressional administrative operations. In
addition to his service at CRS, Dr. Petersen teaches at
Virginia Tech in the Department of Political Science, and has
taught in the State University of New York System, Syracuse
University, and the Catholic University of America. He holds a
Bachelor's degree from the University of Pennsylvania, Master's
in Public Administration from Virginia Tech, and Master's of
Arts and Ph.D. from Syracuse University.
Dr. Harold Relyea for over 3\1/2\ decades was a specialist
in the American National Government with the Congressional
Research Service of the Library of Congress. A member of the
CRS staff since 1971, he held both managerial and research
positions during his career. His principal areas of research
responsibility included the Presidential office and powers,
executive branch organization and management, executive-
congressional relations, congressional oversight and various
aspects of government information policy and practice.
Currently in private practice he is preparing a book on
national emergency powers. He serves on the editorial board of
Government Information Quarterly. He received his undergraduate
degree from Drew University and his doctoral degree from the
American University.
I am pleased to welcome all of you. Your written statements
will be made part of the record in its entirety. I would ask
each of you to summarize your testimony in 5 minutes or less.
To help you stay within that time there is a timing light at
your table. When 1 minute remains, the light will switch from
green to yellow, and then red when the 5 minutes are up.
The questioners will be recognized in the order of
seniority on the Committee, alternating from Majority to
Minority. I will reserve the right to take someone out of order
if they have to leave or if they can only be here a brief time.
It is customary for the Committee to swear in its witnesses. If
you would please stand and raise your right hand to take the
oath.
[Witnesses sworn.]
Mr. Nadler. Let the record reflect that the witnesses
answered in the affirmative. You may be seated.
And the first witness is Dr. Fortier.
TESTIMONY OF JOHN C. FORTIER, RESEARCH FELLOW, AMERICAN
ENTERPRISE INSTITUTE
Mr. Fortier. Thank you, Chairman Nadler Ranking Member
Sensenbrenner, and Members of the Subcommittee for holding this
hearing on a very important topic.
All of you know that it is almost 8 years since 9/11, and
many of us have been working on these issues since near the
beginning.
I pay particular tribute to Representatives Baird and
Rohrabacher and my colleague Norm Ornstein at the American
Enterprise Institute who really began thinking about these
issues within hours or days of 9/11.
We have held many hearings in this Committee and around the
Hill and outside of Congress, and I think we actually have some
common understanding of what the problems are; but we do have
some differences as to what the solutions are or whether what
Congress has done in the meantime has really been adequate.
The goal, really, is to have a legitimate functioning
Congress quickly after a catastrophic attack. That is important
because the real important decisions are made in the 2 to 3
months after an attack, after 9/11, after what might befall us
in the future.
If we don't have a Congress at all or if we have a Congress
that is made up of a very small and unrepresentative part of
the House of Representatives or in the Senate, we don't serve
the American people well. We potentially defer too much to the
Executive, we may be deferring to an Executive who is not the
original President, who is a secondary figure pulled by the
line of succession into office.
So the important goal is to have a legitimate, as full as
possible, functioning Congress as quickly as possible for those
decisions that will be made after an attack. The problems to
get to that really are that the House has trouble filling
vacancies quickly. It has special elections, not appointments.
The Senate, most States have given their Governors the
powers to make appointments. The Senate could probably be in
place quickly after an attack that most of its Members were
killed, not incapacitated but killed.
And then we also have a problem with incapacitation in both
the House and the Senate where conceivably a large number of
Members killed or incapacitated could persist for many months,
or even years, where there was no way to potentially replace
those Members, and you limped along with either a Congress that
couldn't meet because it didn't have a quorum or a Congress
that had very small bodies that didn't look like the people
that had originally elected them.
Our recommendation in the Commission, the Continuity of
Government Commission, was to have a form of temporary
appointments to fill vacancies in the House and to have some
temporary appointments available to fill in for Members who are
incapacitated in extreme circumstances.
Again, we take no issue with the current situation in the
House and the Senate. In fact, I think we would agree with
Ranking Member Sensenbrenner that the House should be the
people's House, that in normal circumstances a vacancy for a
time is not going to affect the functioning of the House. But
in a case of large numbers of Members of Congress, Members of
the House especially, killed or incapacitated, the
representative character of the House is hurt, and potentially
the actual functioning of the House is hurt, and that would
shift dramatically the balance of power between the branches.
So what has been done? One, we have passed some legislation
to speed up special elections in catastrophic situations. And
two, we have changed the rules or codified some new rules on
the quorum. I don't think either of these are adequate.
One, the speeding up the special elections, as
Representative Baird referred to, is likely not workable. The
49-day limit, some States do have in their laws the provision
to have quick elections, but most election officials will tell
you that is very difficult to do; that you would have to skip
primaries, that you would have to change the laws now in
advance of an attack, and most States have not taken that up.
And I think it is very unlikely that States would meet that
deadline. And even if they did, that is still quite a long time
for many Members of Congress to be missing, for Congress to be
missing two-thirds or three-quarters of its Members during the
most important decisions that have to be made.
I have in my testimony more on the quorum. But briefly I
think the Constitution is pretty clear on the quorum; that the
quorum is a majority of each house. A majority of the House, a
majority of the Senate constitutes a quorum.
And while we have had some precedents and now a change in
the rules that have had some situations that would attempt to
lower the quorum, I don't believe that was consistent with the
framers' original intent to have a body that was widely
representative of people, not a small group of people claiming
to represent others. And also that a Congress like this would
be extremely unrepresentative; that it could represent one part
of the country and not the other.
At the end of the day, I don't think we are much more
prepared than we were on 9/11. And I note that in the 1950's
and 1960's we went through many of these debates, even passed
constitutional amendments through the Senate. Ultimately that
issue was forgotten. And I hope it isn't today because we still
have more work to do.
Mr. Nadler. Thank you very much.
[The prepared statement of Mr. Fortier follows:]
Prepared Statement of John C. Fortier
The views expressed in this testimony are those of the author alone
and do not necessarily represent those of the American Enterprise
Institute.
Thank you Chairman Nadler, Ranking Member Sensenbrenner and Members
of the Subcommittee for inviting me to testify before you on preserving
the continuity of Congress after a terrorist attack. I am the executive
director of the Continuity of Government Commission, a joint effort of
the American Enterprise Institute and the Brookings Institute, now co-
chaired by former senators Alan Simpson and David Pryor.
It has been nearly eight years since the horrific day of September
11, 2001. Even after the passage of time, the country cannot forget the
magnitude of the attack that killed many innocent people and changed
the way we think about our security.
But members of this chamber more than anyone know that the damage
done on September 11th could have been even worse. There were three
planes that struck their intended targets at the two towers of the
World Trade Center and the Pentagon leaving nearly 3,000 innocent
people dead. But there was also a fourth plane, United 93, which took
off from Newark 42 minutes late. Because of the delay, the passengers
on that flight, who were herded to the back of the plane, learned about
the fate of the other three planes from cell phone conversations with
their loved ones. They made the fateful decision to storm the cockpit.
All of them lost their lives, but their heroic actions spared America
the loss of many more lives and prevented the disruption of our
constitutional institutions of government, and our ability to respond
effectively to that terrorist attack.
The target of that fourth plane has been confirmed by the 9/11
Commission; it was headed toward Washington, D.C., and the hijackers
planned to fly it into the Capitol. The aim was not only more death and
destruction, but to debilitate the Congress and to throw into chaos our
constitutional system.
the legal and constitutional problems facing congress in reconstituting
itself after a catastrophic terrorist attack
Shortly after 9/11, two individuals began to think about what would
have happened had the fourth plane reached its target and devastated
the United States Congress. My colleague at the American Enterprise
Institute, Norm Ornstein, thought this problem though two weeks after
9/11 in a Roll Call piece entitled ``What if Congress Were
Obliterated?'' And inside the House, Representative Brian Baird had
similar thoughts and conversations immediately after 9/11. These
individuals have continued to work on these issues, and their efforts
have spurred thoughtful and constructive debate by others. Our
Commission is one example; in its early years, it was chaired by
Senator Alan Simpson and former White House Counsel Lloyd Cutler, and
it includes as its members many former public officials from all three
branches of government. The purpose of the Commission is to make
recommendations on how the institutions of government could
reconstitute themselves after a terrorist attack. After many hearings
of public testimony, the Commission issued its recommendations in a
report in 2003 on the Continuity of Congress, which can be found on our
website www.continuityofgovernment.org. Recently, the Commission issued
a second report on our presidential succession system.
Our Commission, however, was only one institution studying this
problem. Congress itself has studied this issue extensively with high
level task forces, such as the House group chaired by Chris Cox and
Martin Frost. And this committee and others in the House and Senate
have held multiple hearings on the matter.
All of these investigations have come to a common understanding of
the problem, even if not all agree on the solutions.
Here is a short summary of the consequences of a catastrophic
terrorist attack that kills or incapacitates a large number of members
of Congress. These problems center around two issues. First, how would
House and Senate get back to full membership after such an attack?
Second, how would the House and Senate get back to a point where they
could operate constitutionally, legitimately, and practically, even if
their full membership has not been restored? One aspect of this second
question is how the House and Senate could meet their quorum
requirements to conduct business, but the quorum is only one aspect of
this larger question of restoring a legitimate Congress after an
attack.
The House and the Senate would face this situation in very
different ways, with the House having greater difficulties in
reconstituting itself.
the senate
When vacancies occur in the Senate, in the vast majority of cases,
they are filled quickly by gubernatorial appointments. The Seventeenth
Amendment gives state legislatures the ability to empower their
governors to make temporary appointments to fill Senate vacancies.
Those temporary appointees serve until a special election is held to
fill out the remainder of the term. By tradition and with the guidance
of court cases, the length of that appointment cannot extend much
beyond two years. States often schedule special elections at the time
of the next general election. Almost all states have given their
governors the power to fill vacancies. There are five or six
exceptions. Wisconsin and Oregon have had a long standing practice not
to fill Senate vacancies with appointments. Instead, they allow the
Senate seat to sit vacant until they hold a special election. Oklahoma
has allowed appointments in certain circumstances, but in others the
law directs leaving the seat vacant until a special election is held,
depending on the timing of the vacancy. And in the last five years,
Alaska, Massachusetts and Connecticut have changed their laws, and they
no longer provide for governors to make temporary appointments to fill
vacancies. They too leave the Senate seat vacant until a special
election is completed.
The upshot of this gubernatorial power to fill Senate vacancies is
that seats do not remain vacant long. If one imagines a catastrophic
attack that kills all or nearly all of the senators, the Senate could
quickly reconstitute itself. Governors in most of the states would make
temporary appointments within days. And the Senate would have nearly
full membership quickly.
The Senate and the House are each governed by a constitutional
clause that requires a majority of the body to be present to conduct
business. With governors making temporary appointments to the Senate, a
quorum would be achieved quickly.
the house
The House has one chief difference with the Senate that makes its
reconstitution after an attack much more difficult and lengthy. There
is no provision for filling House vacancies with appointments. The
Constitution provides only one way for House vacancies to be filled:
special elections. When a House vacancy occurs, the seat remains
vacant, typically for several months, as the state conducts a special
election to fill the vacancy.
In normal circumstances, the only downside to this arrangement is
that the district has no one to represent its interests during this
period. The House itself is not adversely affected, as it can conduct
its business effectively with 434 or 433 members as well as it could
with the full membership of 435.
But in the case of a catastrophic attack with hundreds of members
killed, the House itself would not be able to reconstitute itself for
months. In our original report, we found that House vacancies created
by the death of a member took over four months to fill. Many state laws
allow for vacancies of longer duration, and some do not fill the
vacancy at all if it occurs in an election year.
The most likely outcome of a catastrophic attack on the House
killing many members would be a House not repopulated for many months.
There would also be a serious question whether the House could conduct
any business because it would be short of its constitutional quorum
requirement of a majority of the body.
incapacitation
One additional factor which would complicate the reconstitution of
the House and Senate is incapacitation of members of Congress. There is
no provision for removing or otherwise dealing with a sworn member of
Congress who is alive, but becomes incapacitated and unable to perform
his or her duties.
In ordinary times, the Senate or the House might have an individual
member or two who might not be able to vote, to show up on the floor,
or who could have an extended period of illness. These individual cases
may affect occasional votes, but they do not affect the functioning of
the House or Senate.
But in the case of a catastrophic attack, a significant number of
incapacitations would be likely and would greatly complicate the House
and Senate reconstituting themselves.
Imagine an attack on the Senate kills twenty senators, and gravely
wounds the rest. Most of the twenty vacant Senate seats could be filled
quickly by gubernatorial appointments. But the eighty senators who were
gravely injured could not show up for work, but could also not be
replaced by gubernatorial appointment or even by a special election. As
these seats are not vacant, there is no mechanism to fill the seats.
In addition to the problem of replenishing the membership of the
Senate, there is the additional problem of the Senate meeting its
constitutional quorum requirement of a majority of the body. If the
Senate could not meet its quorum requirement, it could not conduct
business at all. In theory, this situation could last for a very long
time, until the incapacitated senators recovered, resigned, died, or
their terms expired.
The House would face a similar problem. If many of its members were
incapacitated, states could not begin the process of filling vacancies.
The House would be left with a few members and the possibility that it
could not meet its quorum requirement.
why it matters that the house and senate reconstitute themselves
quickly and legitimately
This committee does not need a lecture about the importance of
Congress in our constitutional system. It is in everyone's interest for
Congress to function as the Constitution intends as quickly as
possible. But let me list a few simple points as to why it we should
not be without a regularly functioning Congress in the immediate
aftermath of an attack.
After 9/11 Congress passed many pieces of significant
legislation directly relating to the attack: the authorization
of force in Afghanistan, as well as measures to save sectors of
our economy, to appropriate funds, and to improve our ability
to protect against and detect future attacks.
In the absence of Congress, the president might act
unilaterally without the check of the Congress.
A president acting with the backing of Congress will
be on stronger ground with the American people and with our
friends and adversaries abroad.
The president of the United States might not be the
president that was elected. In the aftermath of a catastrophic
attack, it is possible that the president, vice president and
others in the line of succession have been killed. The new
president might be unknown to the American people,
inexperienced, and would greatly benefit from the presence of
Congress to reassure the American people that our
constitutional system is functioning.
Our Presidential Succession Act has leaders of
Congress in the line of succession. If the House and Senate
leaders had been killed, but Congress could not meet to select
successors, then no new Speaker or Senate President Pro Tempore
could be selected to assume the presidency. Or if the House or
Senate were to act with very few members using a more flexible
definition of the quorum, they could elect a leader who would
become president, but who would have little legitimacy.
Imagine, for example, that twenty members of the House survive
an attack, which also kills the president and vice president.
These twenty members might select one of their own to be the
Speaker of the House, and that Speaker could then ascend to the
presidency for the duration of the term.
It is for these reasons and others that our Commission strongly
believed that the House and Senate must be reconstituted quickly and
legitimately. We would not want to face the aftermath of a catastrophic
terrorist attack with no Congress, or a House or Senate so small and
unrepresentative as to be illegitimate in the eyes of the Constitution
and the American people. And we do not believe that it is okay for this
condition to persist for months. The real action occurs in the two or
three months after a catastrophic attack. Congress should not be absent
or deformed in the period it is most needed.
options:
the continuity of government commission's recommendations
The Commission studied the problems laid out above and aimed to
find a solution that would allow Congress to reconstitute itself
quickly (within days or at most weeks) and legitimately. Our central
recommendation was that we must pass a constitutional amendment that
would apply to extraordinary circumstances when there were large
numbers of members dead or incapacitated. This constitutional amendment
would allow for temporary appointments to be made to fill vacant seats
until special elections could be held. And it would also allow for
appointments to be made to fill in for incapacitated members, and those
appointments would last until the member recovered, the member died, or
a regularly scheduled election occurred.
With such appointments, both the House and the Senate would have
nearly full membership, representing the whole country within days of
an attack. The appointments would be temporary, and as soon as special
elections could be held, the newly elected members would replace these
temporary figures. The Congress could act in the greatest time of need,
clearly meeting its quorum requirement, and with a membership that
represented the whole country.
The Commission supports several options for appointments. Governors
could make appointments. Appointments could be made from an ordered
list of successors supplied by each member of Congress. Or governors
could pick from among successors on such a list. The goal is to make
the appointment quickly and legitimately so that each district and
state in the country has adequate representation in a short period of
time.
what has been done
The recommendation of our Commission has not been adopted. Two
measures have been adopted that pertain to congressional continuity,
but they are inadequate to address the central issue of the continuity
of Congress after an attack.
First, Congress passed the Continuity in Representation Act, which
requires states to hold quick special elections if there are a large
number of vacancies in the House. States would hold these elections in
49 days.
Second, the House has amended its rules to redefine the quorum that
is required to do business which allows the House to operate with a
very small number of members if there are significant numbers of deaths
or incapacitated members.
why expedited special elections are not the answer
The Commission supports the idea that states should reexamine their
laws for filling House vacancies and consider conducting them on a more
expedited basis. But the legislation passed requiring a 49-day election
is unworkable. In the aftermath of an attack, almost all states will
not be able to hold elections in this shortened timeframe. At the same
time that 49 days is too short to hold elections, it is also too long a
period to be without a Congress with full membership. A functioning
Congress is needed in the weeks and first two or three months after a
catastrophic attack.
Almost no states hold special elections for sudden vacancies in the
timeframe contemplated for the legislation. And there is good reason
why elections would be hard to hold so quickly. Polling sites need to
be secured, machines calibrated, and ballots printed. Candidates have
to qualify for the ballot. In most states, the people get to speak in
primary elections as well as a general election. Absentee ballots need
to be mailed out and returned, not only to local residents, but to
overseas voters. And finally, there has to be some time for a campaign
in which voters get to know the candidates. Merely holding an election
without sufficient time for voters to digest the choices is treating an
election as a formality.
The only way for states to meet the 49-day mandate would be for
them to dispense with primary elections, which many states are loath to
do.
As it stands today, almost no states have modified their laws to
comply with the federal mandate of holding elections in 49 days. As far
as I know, no states practice holding expedited elections. The
likelihood is that special elections would take a minimum of two or
three months after an attack, too long to go without Congress.
the redefinition of the quorum is unconstitutional, against the intent
of the framers of the constitution, and dangerous in the time of
turmoil surrounding an attack
The other change that has been made since 9/11 has been to redefine
in House rules what constitutes a quorum to do business.
The constitutional language on the quorum is clear. A majority of
each house shall constitute a quorum to do business. When the framers
debated this question, their intentions were explicit. They did not
want a small number of members, representing a small fraction of the
country, meeting and acting as the Congress. They considered both lower
and higher thresholds for the quorum, but settled on a majority of the
seats in each House as necessary to achieve a quorum.
During the Civil War and in several precedents afterwards, the
House began to chip away at this original definition of the quorum. The
House came to define the quorum as a majority of those chosen, sworn
and living. In other words, if there are 435 members in the House, the
quorum is 218. If, however, there are two vacancies, then the majority
of those in the House is 217.
Since 9/11, the House has codified this precedent in its rules.
The appeal of such a rule is obvious. No matter how many members of
Congress have died, there is still the possibility of achieving a
quorum by rounding up a majority of those still living. If 100 members
are alive, then 51 is a quorum. If 15 remain, then 8 is a quorum.
But this is an arrangement that treats the quorum as a mere
formality, not as a basis for legitimacy as the framers intended. A
House of Representatives made up of ten members is no House at all. It
is wholly unrepresentative. The remaining members could all be from the
same state, political party or gender. Nearly the entire country would
have no one representing their districts--all at the time where the
most important decisions are being made.
The answer seems to be that continuity of Congress is preserved if
some semblance of Congress is preserved, no matter how small, how
unrepresentative and how illegitimate it is.
In addition to this simple change in House rules, the House has
further amended its rules to deal with incapacitated members. A
majority of chosen, sworn, and living members would not yield a quorum
to do business if many members were alive, but unable to come to the
floor of the House due to incapacitation.
The further rules change, through a series of assessments and
decisions by the remaining members, allows for incapacitated members to
be ignored in the counting that determines if a quorum is present.
Essentially, after an attack and a several-day waiting period, a
determination could be made that a small number of members is alive and
able to perform their duties, and from this number a majority would
constitute a quorum. Imagine an attack that severely wounds 400
members, perhaps an attack involving infectious agents. A determination
could be made that only 35 members are able to come to the floor, and
that a quorum for business is eighteen members. Those eighteen members
could act at the House of Representatives conceivably for up to two
years or until the end of the terms of the incapacitated members.
conclusion
The danger of a catastrophic attack on Congress is real. It might
have happened on 9/11.
To allow for Congress to reconstitute itself quickly and
legitimately after an attack, temporary appointments to fill vacancies
and to fill in for incapacitated members are needed. These appointees
could fill the gap in time until special elections could be held. And
it would allow for a fully representative Congress to be present when
the most important decisions following an attack are being made.
The alternatives enacted by Congress are insufficient. The
provision to hold quick special elections is not likely to work in
practice. And a period of 49 days or two or three months with most of
the seats of the House vacant is not an acceptable situation when the
input of Congress into vital decisions is needed.
The attempt to redefine the quorum is unconstitutional. And as a
policy matter, it falls into the trap that the framers tried to avoid.
It would allow a small number of members, representing a small portion
of the country, to make legislative decisions and to elect leaders who
would be in the line of presidential succession. Such a Congress would
lack legitimacy in the eyes of the Constitution and the American
people.
__________
Mr. Nadler. Dr. Petersen is recognized for 5 minutes.
TESTIMONY OF R. ERIC PETERSEN, ANALYST IN AMERICAN NATIONAL
GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE
Mr. Petersen. Mr. Chairman, Ranking Member Sensenbrenner,
Members of the Committee, thank you for the opportunity to
appear before you today.
Congress and the U.S. Capitol are globally recognized icons
of American government and American values. As such, they are a
potential target of high symbolic and strategic value to
adversaries of the United States Government. A catastrophic
attack on Congress could disrupt government and impede it from
carrying out its constitutional responsibilities.
Since 2001, as a number of the witnesses have noted, a
number of efforts have been attempted to better ensure the
continuity of Congress. In addition to continuity of
congressional representation, there are administrative efforts,
there are coordinative efforts between the branches, and a
number of other programs in place.
I am going to focus on continuity of congressional
representation, which is filling large numbers of vacant seats
in the House, and addressing concerns related to incapacitation
or missing Members in the House and the Senate.
Generally since 2001, we have seen two broad approaches:
the combination of Chamber rules changes in legislation, and a
proposal to amend the Constitution. In the 109th Congress the
House adopted rules to establish a provisional quorum after
catastrophic circumstances based on the longstanding precedent
that a quorum consists of a majority of those Members chosen,
sworn and living, whose membership has not been terminated by
resignation or by action of the House.
Legislation passed by Mr. Sensenbrenner was also enacted to
require States to hold special House elections when
extraordinary circumstances cause mass vacancies in the House.
Proponents of these actions have argued that they enable
the House to withstand a sudden change in membership of many
Members. They support the principle that House membership is
gained only through election by the people. That they are far
less cumbersome to implement than amending the Constitution,
and they afford the House sufficient protection following a
disruption.
Opponents of these practices argue that the protections are
insufficient and could raise constitutional objections. The
quorum requirements are properly based on the number of seats
in either Chamber rather than the number of Members present to
conduct business. And for opponents of these practices, a more
appropriate remedy is to amend the Constitution to allow for
rapid replenishment of vacant seats.
Since 2001, 14 proposed constitutional amendments to
address the consequences of catastrophic loss of congressional
membership have been introduced, including measures in the
111th Congress by Mr. Baird and Mr. Rohrabacher.
The proposals have been designed to address two or more of
the following issues: the conditions under which the vacancies
would be filled; the level of vacancies needed to invoke
implementation of the measure; who would select replacement
Members; and the duration of any temporary appointments.
In addressing any effort to assure its continuity, Congress
would likely face questions related to demands for an elected
representative government; the need to assure that Congress can
carry out its responsibilities in challenging circumstances;
the extent to which further consideration of these issues might
be necessary; and whether developing additional plans for
continuity of representation would better prepare Congress to
withstand potential interruptions.
Thank you again for inviting me to testify, and I will be
happy to address any questions you might have.
Mr. Nadler. Thank you very much.
[The prepared statement of Mr. Petersen follows:]
Prepared Statement of R. Eric Petersen
__________
Mr. Nadler. Dr. Relyea.
TESTIMONY OF HAROLD C. RELYEA, FORMER ANALYST, CONGRESSIONAL
RESEARCH SERVICE
Mr. Relyea. Thank you, Mr. Chairman. Thank you for your
invitation to appear here today.
My statement recounts emergency conditions occurring in the
early months of 1861 when Congress was not in session and the
newly elected President chose to address the crisis at hand
unilaterally, taking actions of necessity which he trusted a
reconvened Congress would ratify.
My purpose here is twofold: to provide some historical, as
well as Presidential, context for the hearing.
At the time of his inauguration, as the Nation experienced
rebellion within the Southern States, Abraham Lincoln took
extraordinary actions, some of which he realized were of
doubtful legality. He knew he needed legislative ratification
of those actions, but he was not willing to convene a new
Congress immediately to obtain the necessary approval. Instead,
the 37th Congress did not convene for 122 days, or about 17
weeks.
The time frame is important in view of the schedule set in
the Continuity of Representation Act of 2005, which basically
calls for the holding of a special election within 49 days
following an announcement by the Speaker that, because of
extraordinary circumstances, vacancies in representation from
States have exceeded 100 seats.
In congressional hearings a few years ago, some questioned
that a national standard of 45 to 50 days was sufficient for
the holding of mass elections after a national catastrophe.
Longer periods of time, from an election administration
perspective, it was suggested, would yield a better opportunity
to include more of the electorate, such as Americans living
overseas, armed forces personnel, travelers, and older people,
and better ensure the integrity of the electoral process.
The Lincoln era-example suggests that upwards of 120 days
might elapse before the occurrence of special elections
facilitating a reconvening of Congress. When Congress, in an
emergency, reconvenes, with or without the occurrence of
special elections, what is the expectation? In the case of
Lincoln in 1861, it was to ratify readily his emergency actions
which, in his words, and I quote, ``whether strictly legal or
not were ventured upon under what appeared to be a popular and
a public necessity,'' unquote. Among these were increases in
the Armed Forces, a constitutional responsibility clearly
vested in Congress.
In the aftermath of the terrorist attacks of September 11,
2001, President George W. Bush was better prepared to ensure
the availability of essential government personnel to deal with
the emergency resulting from that exigency.
Pursuant to the National Emergencies Act of 1976, he
initially declared a national emergency for purposes of
activating certain standby authority regarding Armed Forces and
U.S. Coast Guard personnel.
Shortly thereafter, he issued a second national emergency
declaration invoking the International Emergency Economic
Powers Act to block property of, and prohibit transactions
with, persons who commit, threaten to commit, or support
terrorism.
While Congress may wish to explore the possibilities of
enacting additional standby statutory authority to be activated
by Presidential national emergency declarations relative to
ensuring the continuity of the Federal Government, including
Congress, it should also be remembered that Congress, pursuant
to that same National Emergencies Act, may, by joint
resolution, rescind a Presidential emergency proclamation or
authorities so activated, which certainly is a reason for
ensuring the operational capability of Congress in the
aftermath of a catastrophic attack.
Ratifying the extraordinary emergency actions of the
President, providing needed resources for responding to an
emergency, and oversight of the response of the executive
branch to an exigency are also reasons for assuring that
Congress will be an active and continuous participant in the
Federal Government's operations.
Mr. Chairman, thank you again for your invitation to appear
here today before the Subcommittee. I welcome the questions of
Members.
Mr. Nadler. I thank you very much.
[The prepared statement of Mr. Relyea follows:]
Prepared Statement of Harold C. Relyea
__________
Mr. Nadler. And I first recognize myself for 5 minutes for
questioning.
The quorum rule that we have been operating under since the
Civil War is that a quorum is a majority of Members chosen,
sworn and living. This seems to suggest a majority of any
number of Members chosen, sworn and living, would pass
constitutional muster.
Would the House of Representatives composed of five Members
be able to act under current law with only three Members
present if the others are dead? If not, what is the
constitutional distinction and do we have to address this
problem?
Who wants to do that?
Mr. Fortier. Well, I think your question points to the
untenability of the interpretation that you can redefine the
quorum as less than half the Members of the actual body. The
framers debated whether we should have a quorum of a majority
or a larger number or a smaller number. And the reason they
came to a majority, which was a reasonably high number, was
that they didn't want a small number of people.
Mr. Nadler. The question is a majority of total seats or a
majority of Members living.
Mr. Fortier. Well, the framers believed that it was a
majority of the total seats. They didn't want the
representatives from Virginia and Maryland to show up, and the
rest of the country not.
Mr. Nadler. So our current system since the Civil War is
unconstitutional.
Mr. Fortier. I think the interpretation of the quorum rule
since the Civil War has been effective. People who proposed it
during the Civil War were leery of this and said, look, the
States in the South have seceded; we don't want to recognize
that they have really left; and yet they haven't elected
anyone; we have to do something.
But they recognized that it was somewhat difficult. And the
later precedents were really about an individual vote: We have
a Member or two missing from the body, so we will say that the
quorum is a couple less.
So I think the principle that you should have a majority of
the country, if you think about the reason a number of seats
represents the country. You have 218 seats and the House of
Representatives would be a majority of people in the country
representative of----
Mr. Nadler. Let me ask a different question. We have a
tension obviously between the desires as expressed by Mr.
Sensenbrenner that the House should be the people's House. It
should be consisted of only elected Representatives, and the
fact that as a practical matter you can't elect people quickly
you might say, 100 days, 70 days, whatever. But it is going to
take some time, and Congress especially potentially in a time
of national emergency will have to act quickly and you want a
legitimate Congress, and how do you square the two?
Would a way of squaring the two be--and I don't think
either of these proposals here do that--but a way of squaring
the two be to mandate special elections within a reasonable
period of time, but to provide for some type of appointment
until that special election; either an appointment by a
Governor or, better yet, as Congressman Baird and Congressman
Rohrabacher suggested, by an alternate Congressman or by
someone on a list left by the Congressman, but only to function
until you could arrange that special election?
Mr. Fortier. That was the recommendation of our Commission,
and we are flexible as to what sort of appointment that is. But
we believe in having the special elections, we believe in
getting people back who are democratically elected. But we
think that the period of time of, we think, several months,
critical time, every district should be represented and there
should be a temporary person.
Mr. Nadler. Anybody else want to comment on that question?
Mr. Relyea. I will comment in this way. I am not an
attorney, but I would like to offer this perspective.
Historically, people have expected elected representation in
the House. It changed with the Senate. But, I think, that too,
the popular election or direct election of Senators, was the
reflection of that mood about the House. And whatever we can do
relative to preserving the House after an attack or a
catastrophe that rests on an electoral base, I think is
extremely commendable. And it is important not only for
operational purposes but I think it is important for----
Mr. Nadler. But you would agree or disagree that pending as
swift as you can manage it, you should have somebody coming in
there.
Mr. Relyea. I think the exploring of something where we see
a longer circumstance of Members not being available, that this
alternative of a temporary appointed process should be examined
further.
Mr. Nadler. My last question is the following. We have seen
two proposals for how to make such a temporary appointment. One
would be, as Congressman Rohrabacher suggested, that when we
run for office we should run with an alternate, and presumably
that the electorate could judge my reelection partially on the
basis of what they thought of my proposed alternate. As
people--I don't know how many people actually vote for
President based on the Vice President, but to some extent
theoretically I suppose that is true.
Congressman Baird proposed that the Congressman should give
a list of alternates, in ranked order I think, to the Clerk of
the House.
I would ask your comments on those two alternatives, with a
second question. In the case of the latter, that you give a
list, a ranked list of alternatives to the Clerk of the House,
some people suggested that that should be public. Once you are
elected, you announce these are my three ranked alternates 1,
2, 3 and give it to the Clerk. And some have suggested--some,
meaning me--have suggested that that should not be public, that
you should--that the Congressman should give the three best he
really thinks, without regard to political considerations or to
his insulting a State senator by not putting him on the list,
et cetera, and that list should become public only in the event
of a catastrophe. Could you comment on that question, too?
Mr. Relyea. I personally find the idea of an alternate, I
would find that somewhat confusing. I think it would be
confusing to the electorate. It is such a radically new
approach. I am not saying it doesn't have merit. I am simply
saying I think you would have a hard time selling that to the
American people.
People vote once, they think they have done a good job
whether they win or lose, and they don't want to play around
with the idea of an alternate; who is this other person, et
cetera.
Designating people, the second proposal, I am not so
certain about that. It has merit to how wide--is this a name
kind of thing, is this a title kind of thing, do we name
somebody personally or by title?
Mr. Nadler. No, no, no. You would name three people. You
would give those three in ranked order to the Clerk of the
House. And variant one, that would be announced publicly;
variant two, it wouldn't be announced.
Mr. Relyea. I understand, and I am still not terribly
excited about that idea. Whether or not--I am clear about the
idea of whether it should be public or not, and I lean very
much toward it being public.
Mr. Nadler. It should be public.
Mr. Relyea. It should be public. I don't think we would
want to do things of that nature in secret. It may have a
security aspect to it, but that seems contrary to the ways we
have operated.
Mr. Nadler. My time is expired, but I ask if anyone else
wants to comment on these two questions.
Mr. Petersen. Very briefly. I guess one question on the
public or the secret nature of it, I mean we have public
elections so that we know who our governing officials are going
to be. And that would--if we were not to publish either the
list of designees or the alternate, then it is possible that we
are contravening that tradition, although there may be
compelling security reasons why that may not be the case.
In the absence of a clear designation in the proposed
amendments as to what the alternate Members or the three
Members, the three alternates might be doing, whether they are
government officials, whether they are drawing a salary or if
they are just waiting, I think it may be difficult to specify
too much at this level. And you know, we would need to have
more of a conversation, you know, in the implementing
legislation.
A potential issue with the three alternates, as I
understand it, in addition to the rank ordering, there is a
mechanism for them to declare incapacity. What do we do in the
circumstance where the Member who has the three delegates, or
designates rather, appears to have come through the incident
that led to the emergency replenishment circumstance; but his
three designees believe that he is traumatized in some way that
mandates him stepping aside for a little while, and they take a
vote, and that is what happens. And immediately he comes back
and asserts that he is ready to take office. And just as
immediately, they take another vote that suggests that maybe
not. Effectively we have made that seat vacant. And I am
reasonably sure that is not the intent of the legislation, but
it appears to me that that is a potential outcome.
Mr. Nadler. If you gave them the power.
Mr. Petersen. If you gave them the power.
Mr. Nadler. Which I don't think anybody is contemplating.
Mr. Petersen. It is in some of the proposals.
Mr. Fortier. If I could say, there are two precedents for
both of these proposals. One--maybe it won't win many votes in
the House for this--but the French do have a system like the
Rohrabacher bill, where they run with the second and that
second takes over if the Member goes to the cabinet or steps
down.
And States--many States have enacted in the 1950's and
1960's, looking at the Cold War, systems to replenish their
State legislatures with a list somewhat like the Baird bill.
Mr. Nadler. Who did that?
Mr. Fortier. A number of States. I had a list once;
Delaware and a number--Texas. There are quite a few. There are
old laws on the books where Members indicate who their
successors are.
I think the answer to your direct question is, I do think
they should be public, my personal opinion. And I just think it
would cause less conspiracy thinking about these secret people
who would take over afterwards, that we should know who they
are. And there are some details to be worked out, but I think
they should be public.
Mr. Nadler. I thank you and my time is long expired.
I now recognize the distinguished Ranking Member, Mr.
Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
This kind of plows over ground that the Committee did over
4 years ago, following the Continuity in Government
Commission's recommendations. I am certain that by saying this
I will get another tantrum by Mr. Ornstein in the pages of Roll
Call, but he has done it so many times that my skin is thick
and my hearing aid is turned off. So I will do it again.
I think the message was given when the House voted down the
Baird amendment by a vote of 63 yes to 353 no, that the House
overwhelmingly opposed having appointed members, period. That
is the largest rejection of a proposed constitutional amendment
in the history of the House of Representatives.
And this was the amendment that Mr. Baird proposed in the
Committee. We didn't try to amend it, we didn't try to modify
it; it was his amendment, forward and back.
So we are talking about the other issues and how to
replenish the House of Representatives. In the hearings that we
held 4 years ago, Walter Dellinger did testify that he believed
that the quorum requirement was constitutional. And the House
does have plenary authority under the Constitution to establish
its own rules, and the courts have consistently not meddled in
how the House adopts its rules and how the House, or Senate for
that matter, decides to enforce its rules.
So I think that the quorum requirement is a red herring,
and using the hypothetical that the Chairman brought up to say
there were only five sitting elected Members that survived,
would it really be democratic to have the 430 appointed members
outvote the five elected Members who at least had some kind of
a mandate from the last election.
So we get to the issue of replenishment, and I think that
by a 3-to-1 margin in the House, the determination was made
that expedited special elections would be the way to deal with
it. And, unfortunately, a lot of the States that have had
vacancies, such as California and Illinois, in the current
Congress have very lengthy special election procedures.
In the case of the vacated House seat by Kirsten
Gillibrand, there the election was held within an 8-week period
of time. And as I recall, Governor Paterson did not set the
date of the election immediately after then-Representative
Gillibrand's resignation from the House, but delayed a bit; and
it could have been done in a much prompter manner.
So the complaints about delays have largely been a result
of State law requiring those delays, and the State
legislatures, if they want to fill those seats, can pass a new
law that allows for them to fill the seat.
I also look at the fact that in the United Kingdom, which
has a similar rule to ours in that in order to sit in Commons,
you have to be elected. During the Second World War, when a
number of the sitting Members were killed in action or killed
as a result of Nazi bombing, the average time between a vacancy
and filling that seat was 42 days. And there you had a country
that was almost under constant attack, being able to fill those
seats.
So--and it has been mentioned earlier that before the 20th
amendment was ratified, usually the election was held in
November of the even-numbered year, and the new Congress was
not seated and sworn in until 13 months later.
Having said all of that, I am interested in the business of
incapacity and I am wondering if I can get a brief answer to
this question; and that is that both Senator Byrd and Senator
Kennedy have been absent for considerable periods of time as a
result of illness. Do you think there should be a
constitutional procedure for the Senate to declare those seats
temporarily vacant and allowing a filling temporarily by the
Governor until the Senators were able to come back and function
or have the present system?
Maybe, Mr. Fortier, you can start.
Mr. Fortier. I will just address your question directly.
I don't think there should be such a system because our
recommendations really are about the emergency situation. We
respect your view that--and the view of the Founders, that the
House should be the People's House and the Senate has moved to
become a more democratic body; it should be filled in normal
constitutional ways.
But what we worry about is the extraordinary circumstance
where we fear there will be no House or no Senate and that that
period of time, 2 or 3 months, which is the most important time
for Congress to be around after an attack, we should have a
full Congress.
And if I can just say, it is not only that it would be
small or possibly undemocratic to have a small Congress, but it
could look very different. I think we all think of 20 Members
or 30 Members as being sort of a mini version of today's
Congress. Of course, it could have a very different majority.
It could be representing only one State or one part of the
country, only men or only women.
It could be a very, very different place and wouldn't look
like the Congress that was elected by the people. So I don't
think we should have that provision.
Mr. Sensenbrenner. I live in Alexandria and there was a
vacancy in the House of Delegates in Alexandria and Governor
Kaine called an election 16 days from the time he signed the
writ of election and there was somebody that was elected there.
So I guess I can say it can be done.
Mr. Petersen? Mr. Relyea?
Mr. Petersen. Sir, as a CRS employee, I take no position on
the merits or issues of any proposal that Congress considers.
What I can say related to the issue of individual capacity--
incapacity--on one Member at a time, the practice has long been
to address it on a case-by-case basis.
Many times, particularly in the last 30 years, as staffs
have grown and presence has been delegated, a number of the
activities that routinely go on in a Member of Congress's
office are carried out by staff, and those continue to do so
when an individual Member is incapacitated. So to some extent
what we are looking at is whether or not they are appearing to
vote, whether or not they are appearing to carry out their
Committee duties.
For the most part, it is a question of whether they are
going to come back or whether they are going to get better. And
we have seen examples in which extended incapacities have ended
with the Member returning healthy and well and we have seen
other circumstances where missing Members have been--have had
their seats declared vacant, pursuant to the State laws of
whichever State they are from.
An example, there is the crash in Alaska with Mr. Boggs and
Mr. Begich. Alaska has a reasonably expedited law for declaring
somebody dead. That is what they did; the seat was made vacant.
In the case of Mr. Boggs, it was a more protracted negotiation
within the Chamber.
When the quorum isn't at issue, it appears that the House
and the Senate have been content with that practice.
Mr. Sensenbrenner. Mr. Relyea?
Mr. Relyea. I would associate myself with the remarks of
both people here at the table. I think we have seen this in the
past on a case-by-case basis, and States have looked at the
situation relative to how long the incapacitation is going to
be; and Mr. Fortier has said we have relied pretty much on
elections.
What I think your question goes to, perhaps--not to put
words in your mouth--what about incapacitation on a very large
scale? How do we know that has occurred, that there is an
attack--if there is a bombing, whatever the event may be, how
do we account for missing Members or Members that we don't know
what condition they are in? In other words, there are a number
of Members that are in a medical condition that does not allow
them to participate.
That may be more the situation of what you are thinking
about, rather than the case-by-case kind of thing that has
happened in the past. There--I don't have an answer to that,
but perhaps there should be a greater awareness of that
possibility on the part of State election officials.
I am also sitting here thinking that governors and others
responsible for the electoral process sometimes have been slow
because they haven't seen the urgency of the situation. Maybe
we need to go back to some type of Cold War education once
again to make those officials more aware of their
responsibilities in this type of mass attack and the need to
determine, perhaps with medical assistance and others'
incapacitation, whether it be from a physical injury or some
other type of injury it seems like it is another step, out
beyond what was immediately under discussion here today, but
nonetheless a very important point.
Mr. Nadler. The time of the gentleman has expired.
The gentleman from California, Mr. Sherman.
Mr. Sherman. Mr. Baird and I have been focused on these
issues for a long time. We have a division of attention. He is
focused on congressional continuity; I have focused on
Presidential continuity. And I am going to use my 5 minutes
mostly to focus on what I know about, and plea that we also
have a hearing on Presidential continuity.
Before I do, I do want to respond a bit to Mr.
Sensenbrenner. September 11 occurred because we, as Americans,
were too damned arrogant to realize we were vulnerable and too
comfortable to think the unthinkable or to think about anything
that made us uncomfortable. Yes, indeed, in Alexandria, they
had elections perhaps within 16 days. That wasn't a country
that had suffered 20, 30, 40 million casualties and a nuclear
attack; that was just a sunny day in Virginia.
And so we had better start thinking about how our country
is going to persevere after millions of casualties and not
assume that every day is going to be a sunny day in Virginia.
As to Presidential succession, to wipe out Congress, you
would have to kill hundreds of people and you would no doubt be
killing hundreds of thousands as part of that process, or tens
of thousands. To incapacitate the executive branch, which in a
time of crisis might be even more important than our own, you
would only need one or two bullets.
The other thing to point out about Presidential succession,
it is entirely a creature of statute. So as a practical matter,
should we decide to actually do something, we could actually
get something done.
There are a number of problems with the current
Presidential succession process. The first is and the most
dangerous is what I call ``bumping''; that is to say, you could
swear in a President Pro Tempore of the Senate and the next day
a House of Representatives elects a new Speaker. You now have a
country that has suffered a major catastrophe and has two
Presidents, perhaps with very different ideas as to how to
respond.
Imagine yourself as a general in the Army trying to decide
which commander in chief to follow.
Now we put our soldiers in Iraq and Afghanistan to defend
us, but we are unwilling to face uncomfortable truths from the
safety of this capital to defend our ability to persevere if we
had just two or three assassinations. Keep in mind John Wilkes
Booth did not just kill Lincoln; he was part of a conspiracy to
kill several. He wounded the Secretary of State, et cetera.
So, thank God, al-Qaeda--I hope al-Qaeda is not focusing on
our incredible self-inflicted vulnerability. But we could have
two Presidents.
All of those in succession to the Presidency live here in
Washington, D.C. We could easily designate some people who
don't. We have been too lazy to do so; it is uncomfortable to
think of the uncomfortable, so we choose not to. We have got
time to rename post offices; we don't have time to figure out
who doesn't live in Washington, D.C., who should succeed to the
Presidency.
We have incredible vulnerability from the day after the
nominating conventions until at least a week or so after the
inauguration of a President. What happens if there is an
assassination of a Presidential candidate a week before the
election? It is not automatic that a vote for that Presidential
candidate is a vote for that--for the Vice Presidential
candidate on the ticket. It is by no means clear that the
Electoral College would vote for that person. So you could
invalidate the legitimacy of the United States and its
Presidency with one bullet at the right time.
What happens with assassinations and deaths that occur
between the election and when the Electoral College meets, when
the Electoral College meets until the inauguration of the
President? And then when you have inaugurated a President, you
have a President and a Vice President, but you may not have any
Cabinet members who have been confirmed. So who is third in
line--who is in line to the Presidency then? Of course, you do
have the Speaker and the President Pro Tempore. The most
difficult to solve problem politically is the inclusion of the
Speaker pro tempore and the Speaker of the House--the President
pro tempore and the Speaker of the House in the line of
succession. The reason for this is you could shift the entire
direction of this country with one or two bullets.
What an invitation to assassins. We could have replaced
George W. Bush with Nancy Pelosi. Do you know how many crazed,
intense Democrats just in my district were praying every day
that that would somehow happen? Thank God. They all believe in
gun control and wouldn't do anything violent.
In addition, keep in mind that just a few years before 9/
11, Strom Thurmond was third in line to the Presidency. Now,
someone else has gotten in trouble by arguing whether Strom
Thurmond should have become President in 1948. I don't think
anybody thinks he should have been President in 1998. Imagine
this country responding to a crisis with Strom hobbling, at
best, into the White House.
So we have a circumstance in which assassins can shift the
political direction of the country, where persons who are not
selected for their national leadership, but rather are selected
as an honor of being the oldest, most senior Senator, are
selected as President pro tempore.
We have a circumstance where in time of emergency we could
have two Presidents, which is almost as bad as having none,
arguably worse. And we have a whole period of vulnerability.
I suggest, Mr. Chairman, that we have hearings on this, in
part to recognize that as important as the United States
Congress is in a time of national crisis, it is important that
we have one President, preferably under the age of 98 years
old, and that there be only one claimant to the Presidency; and
at very best, that if the people of the country have voted for
one particular philosophy to inhabit the White House, that
assassins are not able to reverse that decision.
So this is my plea for future hearings.
And I want to commend Mr. Baird for his tireless work on
this effort, and I would hope that we would not put the
pristine nicety of walking on the floor of the House and
saying, ``No appointed person ever sat on this chair,'' that
that kind of thinking is a luxury in terms of will there be a
legitimate and accepted government of a country that may have
lost tens of millions of people in a nuclear attack.
I chair the Subcommittee on Nonproliferation. Don't think
it couldn't happen. And the idea that there would be some
meeting of the House of a few dozen people, none of them from
my State, and that the entire country would say, Yes, that is
our representative body--we are going to be asking the people
of the United States in a time of emergency to follow their
government and to make enormous personal sacrifice. We had
better tell them what the institutions are and those
institutions better make sense.
And we shouldn't ask people to die in Afghanistan to
safeguard our institutions if we are not willing to do the work
necessary to do that ourselves here. I yield back.
Mr. Nadler. I thank the gentleman.
The gentleman from Texas is recognized.
Mr. Gohmert. Thank you, Mr. Chairman. It is a very
interesting hearing, a very interesting discussion. I
appreciate the witnesses, not just your testimony today, but
the obvious tremendous amount of thought that has been put into
this issue.
So I have some questions that arise that I am not sure you
have adequate answers to. But as to my Chairman's comments,
although after 9/11 some ask who would ever have foreseen
crashing a jet into buildings; and my answer is, Tom Clancy,
because I read that novel back, I think, in the early 1990's
and there was a jet crashed into a joint session of Congress,
into the Capitol building, wiped out everybody but Jack Ryan.
Mr. Sherman. If the gentleman would yield, some might ask
who would think of shooting not only the President, but also
the Vice President and the Secretary of State on the same day.
Mr. Gohmert. John Wilkes Booth.
Mr. Sherman. And that is the answer to that question.
Mr. Gohmert. Exactly. So these things have been thought
about before by people who wanted to have radical change in
government. And I have immense respect for both Mr. Baird and
Mr. Rohrabacher; and Mr. Rohrabacher, I deem to be a very close
friend.
I am trying to work through these things and like--in
Resolution 53 it indicates, ``Whenever the House declares a
Representative is unable to discharge the powers and duties of
his office''--that creates a little concern for me because
knowing who is in charge, they might vote me off the island as
soon as this thing passes. They have suspected Gohmert wasn't
of sufficient mind to serve from the very beginning, and now
that would give them the power to change that.
I mean, it seems almost humorous, but at the same time
these are real issues. And the Founders knew--they just didn't
trust anybody that would have this kind of power, so let us
have not just one House, let us have two Houses and let us make
them about equal where either one can cancel what the other is
doing.
We don't trust these guys, so we don't want them electing
the executive. Let us have somebody elected outside of the
House, not a prime minister, but an executive.
And you know what? We don't trust either of those groups.
Let us have another branch that can cancel them out at any time
because of the fear of what happens when people have enough
power to keep themselves in power.
And so that is what I keep coming back to. And, Mr.
Fortier, what if elections were not held within 49 days after
this tragic event, when would they be held? Who would determine
that? What would be your best recommendation?
Mr. Fortier. There are a couple of good points. I mean, the
incapacitation question comes up. Who would decide--that is
actually a question that is in the current rules about the
quorum which--I don't think that is a legitimate way to address
the quorum, but we have to--the way the quorum rule reads today
is that there is a carefully drawn rule, but still it is
several days of consideration, waiting to see who shows up and
then declaring people incapacitated.
We did not recommend that in normal circumstances people
should be declared incapacitated if they were a Senator or a
Representative. But in this extreme circumstance it makes a big
difference for the functioning of the body.
Your second question is about the elections. I mean,
elections right now are determined by the State. How long they
take is by State law and by State----
Mr. Gohmert. You were saying it is not practical, as I
understood, in 49 days. So my question--and actually it is not
my second, it is my first real question--is, so who decides
when they would be appropriate under your way of thinking?
Mr. Fortier. The States have the current authority. We
would like to see the States still have that authority.
Some States fill their seats in 30 or 40 days. I think
probably more likely in the 2-to-3-month period. Then those
people would come in and replace the temporary replacements. We
are just looking to fill this very important time when the
House will be out of commission, we believe, or very small; and
that is the time where we need temporary appointment.
When it comes to State election, it doesn't occur in
incapacitation because there is no vacancy. But in the case of
death, the State law would prevail whenever that person was
elected and the election, certified; that person would take
over from the temporary Representative and we would never see
the temporary Representative again.
Mr. Gohmert. The thing that--this distrust that I share
with the Founders for people, when they have a great deal of
power, would bring back what we have seen in Venezuela, and
what certainly appeared to be happening in Honduras, when you
have a leader who decides he doesn't like the fact that he is
about to be out of office and can't run again--So let's just
have a vote and keep me in power.
And as I look at Resolutions 52 and 53, both have a
provision that would say that Congress probably shall have the
power to enforce this article through appropriate legislation;
and similarly, Congress shall have the power to enforce this
article by appropriate legislation.
My concern is that you have an influx of people who have
never had power and had been secondary alternates, or just
recently appointed, whichever methodology you use; and all of a
sudden, they like this job. And so they may decide that
appropriate legislation means States--it is too soon to have an
election, not 49 days, not this year, because the law, the
amendment, said as soon as possible, but it is just not
possible to have a fair election within this year; let's let me
keep this term--and you have got a majority of people that vote
to keep themselves in charge.
So I think it is a very real risk that we could lose a vast
number of Representatives and Senators all at the same time. I
mean, any time we have a joint session, especially State of the
Union.
But I am still wrestling with that. How do you prevent the
alternates from coming in and just declaring, ``We are it.''
And appropriate legislation to them means, ``We need to stay in
charge for a while to keep that continuity?''
So, anyway, my time is up and the Chair has been gracious.
But I am just struggling with that.
Mr. Nadler. Why don't we permit the witnesses, even though
your time has expired, we will let the witnesses answer the
question that you have asked.
Mr. Fortier. Again, to repeat a bit, right now it is in the
States' hands. It is not in one hand. There is some advantage
to that. It is in 50 States--different rules, different
legislatures, which presumably would still be out there.
You might ask the same question today: What if all of you
decided you wanted to stay and never accede to your
replacement? State law provides for that and provides for those
elections that take place that would be there at the next
general election or a special election to replace a Member.
So it is not in one hand; the State laws would be there. I
suppose in a crisis, we would always worry: Would people act
differently? That problem is there in the current situation. If
you have a very small number of Members acting under this
quorum rule, 20 of them, what is to say they won't want to keep
power in a way and not let the newly elected special
Representatives come in as well.
So I see the problem, but I am not sure it is particular to
this solution.
Either of the others?
Mr. Nadler. Either of the others?
Okay, the time of the gentleman has expired.
I thank the witnesses.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions to the
witnesses, which we will forward and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record. Without objection, all Members will
have 5 legislative days to submit any additional materials for
inclusion in the record.
With that, I thank the witnesses, I thank the Members who
have attended, and the hearing is adjourned.
[Whereupon, at 3:33 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record